Ms Phyllis Stovell v The Corporation of the Synod of the Diocese of Brisbane
[2022] FWC 1295
•26 MAY 2022
| [2022] FWC 1295 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ms Phyllis Stovell
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/350)
Ms Krystal Kelly
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/352)
Ms Siiri Lohmussaar
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/354)
Ms Kaitlin Orringe
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/355)
Ms Perise Ili
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/356)
Ms Faith Monro
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/357)
Ms Lisa Monro
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/358)
Ms Jessica Watson
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/360)
Ms Rachel Van Der Vorst
v
The Corporation of the Synod of the Diocese of Brisbane
(C2022/362)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 26 MAY 2022 |
Application to deal with contraventions involving dismissal – extension of time – circumstances exceptional - extension of time granted.
This decision concerns Ms Phyllis Stovell (Applicant 1), Ms Krystal Kelly, Ms Siiri Lohmussaar, Ms Kaitlin Orringe, Ms Perise Ili, Ms Faith Monro, Ms Lisa Monro, Ms Jessica Watson and Ms Rachel Van Der Vorst (collectively, Applicants 1-9) who have each made an application under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
Mr Robert Grealy of Australian Law Partners (ALP) has acted for Applicants 1-9 from at least 10 December 2021.[1]
Mr Bronson Williams (Applicant 10) has also made a general protections application against the Respondent and is also represented by Mr Grealy.
It is uncontested that Applicants 1-10 were dismissed on 15 December 2021.
GP Applications for Applicants 1-9 were lodged on 7 January 2022. The period of 21 days ended at midnight on 5 January 2022 and the GP Applications were therefore lodged 2 days out of time. Applicants 1-9 seek that the Commission allow a further period of time for the GP Applications to be made. The Respondent does not oppose the grant of an extension of time in respect of the applications made by Applicants 1-9.
A GP Application for Applicant 10 was lodged on 9 January 2022. The period of 21 days ended at midnight on 5 January 2022 and the GP Application was therefore lodged 4 days out of time. Applicant 10 seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent opposes the grant of an extension of time in respect of the application made by Applicant 10.
On 7 April 2022 a mention was conducted by telephone where it was determined that:
· the above ten GP Applications would be heard together;
· any outline of argument, further submissions, witness statements and evidence (Materials) filed on behalf of Applicant 1 will be taken to be Materials filed on behalf of all of Applicants 1-9;
· any witness statements and evidence (Evidence) given or led on behalf of Applicant 1 will be taken to be Evidence given or led on behalf of all of Applicants 1-9; and
· separate Materials will be filed on behalf of Applicant 10.
On 26 April 2022 Applicants 1-10 filed an Outline of Submissions and a witness statement for Mr Grealy. Separate Materials were not filed for Applicant 10 as was directed nor were the Materials filed in accordance with the Directions nor served on the Respondent in accordance with the Directions. On 10 May 2022 the Respondent filed an Outline of Argument in relation to the application made by Applicant 10 and a submission not opposing the grant of an extension of time in relation to the applications made by Applicant 1-9.[2]
On 17 May 2022 a further mention was conducted by telephone. At that mention the Respondent confirmed that it did not require Mr Grealy for cross examination. Further, neither party sought to make oral submissions. On that basis and in the absence of any contest as to the facts, I determined that all 10 of the above applications would be determined on the papers. However, Applicant 10’s application would be subject to a separate decision.
Accordingly, this decision determines whether there are exceptional circumstances such that Applicants 1-9 ought be granted an extension of time for the lodging of each of their GP Applications.
Background
As set out above, it is uncontested that Applicant’s 1-9 were dismissed on 15 December 2021. Mr Grealy’s evidence is that following their dismissal each of Applicant 1-9 instructed him to lodge a general protection claim involving dismissal.[3]
On 4 January 2022 ALP lodged a ‘joint’ single general protections application on behalf of Applicants 1-10.[4] Mr Grealy’s evidence is that he advised Applicants 1-10 that a joint application could be made to reduce the costs associated with lodging the applications.[5]
On 6 January 2022, following a telephone conversation with Ms Diamond, a law clerk engaged by ALP, the Commission wrote to ALP advising that a joint application on behalf of multiple applicants could not be accepted and that a separate application for each applicant was required.[6]
On 7 January 2022, ALP lodged a GP Application for each of Applicants 1-9.[7]
Consideration
The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[8]
The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[9] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[10]
Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Reason for delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[11] or a reasonable explanation.[12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[13] the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.[14] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[15]
Applicants 1-9 submit that the reason for the delay was that Mr Grealy mistakenly advised each of them that it was possible to lodge a joint application to reduce the costs associated with lodging a general protections application.[16] Accordingly, in summary, Applicants 1-9 submit that the reason for the delay was representative error.
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[17] In Clark v Ringwood Private Hospital,[18] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
· depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;
· a distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;
· the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged;
· error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted;[19] and
· it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[20] However, as the Full Bench explained in Long v Keolis Downer,][21] ”an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.[22]
I accept that the reason for the delay was Mr Grealy’s incorrect advice that a joint application could be lodged on behalf all of Applicants 1-10. Applicants 1-10 provided timely instructions to lodge their application and, indeed, the joint application was submitted to the Commission within the statutory time frame. Further, upon being advised on 6 February 2022 by the Commission that a joint application could not be accepted, each of Applicants 1-9 acted expeditiously to provide instructions for separate applications to be lodged. Accordingly, I am satisfied that the delay was the result of representative error by Mr Grealy and that there was no conduct on behalf of any of Applicants 1-9 which occasioned or contributed to the delay. As such, I consider there is an acceptable or reasonable explanation for the delay in filing. This weighs in favour of granting an extension of time.
However, I wish to express my dissatisfaction with Mr Grealy’s conduct in this and certain other matters. To date, my chambers has been allocated 11 matters where applications have been filed by ALP outside the statutory time frame. In each of those matters the reason for the delay has been said to be representative error occasioned by Mr Grealy. In each of those matters Mr Grealy has, in my view, failed to demonstrate the knowledge and competency one expects from a legal practitioner who is instructed to prepare documentation and represent applicants in proceedings before the Commission. In my view, it is incumbent upon legal practitioners who accept instructions to act in matters before the Commission to be aware of the requirements of the Act and the procedures of the Commission as they apply to those matters and to provide accurate and timely advice in relation to those matters. Further, in one matter Mr Grealy failed to attend the hearing, without prior notice and in circumstances where he had filed a witness statement. Mr Grealy has also in yet another matter failed to comply with direction issued by the Commission. I do not consider Mr Grealy’s professional conduct to be acceptable or that which is displayed by a competent and diligent legal practitioner.
Action taken by the person to dispute the dismissal
On 10 December 2021 ALP wrote to the Respondent on behalf of a number of the Respondent’s employees (Employees). In that correspondence ALP contended on behalf of the Employees, amongst other things, that the Queensland Chief Health Officers’ Direction, which, in summary, precluded the Employees from performing work at a workplace of the Respondent unless vaccinated against COVID-19 by a certain date (Direction), was unlawful, that the Employees had a religious exemption to the vaccines due to the means by which the vaccine was produced, several of the Employees had a medical exemption based on a family history or had a medical condition that put the Employees at a risk of complications from the vaccine and raised issues in relation to contractual obligations and privacy (Letter). The Respondent replied to the Letter by letter dated 14 December 2021 (Response).[23] The Response concluded by saying:
“To be clear however, if by 15 December 2021, your clients have not met the vaccination mandate to the extent required under the Direction, it will be unlawful for them to attend the workplace and they must not attempt to attend their respective workplace”
The Applicants submit that in light of the above the Respondent “was well aware that the Applicants and each of them disputed their dismissal.”[24] I reject that submission.
Firstly, it is to be noted that Applicant 8 is not included as an Employee in the Letter. Secondly, the Letter is dated 10 December 2021, five days before the employment of Applicants 1-9 was terminated. Accordingly, the letter cannot dispute the dismissal as it had not occurred. Thirdly, the Letter in its terms does not dispute Applicant 1-9’s dismissal, rather it raises a range of reasons why it says that adherence to the Direction is not required or is unlawful.
I do not consider Applicants 1-9 took any action to dispute their dismissal prior to seeking to commence proceedings in the Commission. This weighs against the granting of an extension of time.
Prejudice to the employer
I am unable to identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
It is uncontested that the Respondent dismissed the Applicants. Accordingly, adverse action in the form of dismissal was taken against the Applicants. The Form F8s filed for Applicants 1-9 assert that in terminating the Applicants’ employment the Respondent took adverse action against them in breach of section 351 of the Act. The ground of discrimination asserted is “medical condition”.[25] However, the responses to question 3.1 of the Form F8s raise a number of other asserted breaches of Part 3-1 of the Act. In their written materials Applicants 1-9 refer to a statement of claim attached to Mr Grealy’s witness statement, which it is submitted “sets forth in better detail the bases of the Applicants applications.”[26] The statement of claim raises a large number of matters which appear to be superfluous to the question of whether in terminating the employment of Applicants 1-9 the Respondent took adverse action against them for a prohibited reason. I consider most of the grounds raised by Applicants 1-9 in the Form F8 and the statement of claim to have little or no merit. However, for present purposes I am prepared to consider this to be a neutral factor.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[27] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[28]
The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Applicants 1-9 and other persons in a similar position. In the present circumstances I consider this to be a neutral consideration.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to all of the matters that I am required to take into account under section 366(2), I am satisfied that the requisite exceptional circumstances exist. I am satisfied that the reason for the delay, being a delay of 2 days, was due to representative error, being Mr Grealy’s incorrect advice that a joint application could be made on behalf of the Applicants. I am further satisfied that Applicants 1-9 did not contribute to that delay.
Accordingly, I grant an extension of time under section 366(2) for the filing of the application to 7 January 2022.
DEPUTY PRESIDENT
Final written submissions:
Applicant: 26 April 2022
Respondent: 7 May 2022
[1] Witness statement of Robert Grealy at [7]
[2] Respondent’s Outline of Submissions, Applicants 1-9 at [5]
[3] Ibid at [7]
[4] Ibid at [11]
[5] Ibid at [8]
[6] Ibid at [12], RG 4
[7] Ibid at [13], RG-4
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[9] [2011] FWAFB 975
[10] Ibid at [13]
[11] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[12] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[13] [2018] FWCFB 901
[14] Ibid at [39]
[15] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[16] Applicants’ Outline of Argument at [2]
[17] See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109 as cited in [2020] FWC 3033.
[18] (1997) 74 IR 413 at 418-419.
[19] As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1
[20] QGS v Rogers at [17]
[21] [2018] FWCFB 4109 at [60]
[22] QGS v Rogers at [16]
[23] Witness statement of Robert Grealy at [5], RG-2
[24] Applicants Outline of Argument at [11]
[25] See Form F8, q.3.2
[26] Applicants Outline of Argument at [14]
[27] Wilson v Woolworths [2010] WA 2480 at [24-29]
[28] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
Printed by authority of the Commonwealth Government Printer
<PR741976>
0
11
0