Ms Rachel Penrose v Loral Ipsum (Aust) Pty Ltd T/A Supreme Loral Ipsum

[2014] FWC 467

[2014] FWC 467

The attached document replaces the document previously issued with the above code on 20 January 2014.

Paragraph two of the document has been amended to correct a reference to the termination date, from ‘26 July 2013’ to ‘26 August 2013’.

Naomi Snyder

Associate to COMMISSIONER WILSON

Dated 28 January 2014

[2014] FWC 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Rachel Penrose
v
Loral Ipsum (Aust) Pty Ltd T/A Supreme Loral Ipsum
(C2013/6433)

COMMISSIONER WILSON MELBOURNE, 20 JANUARY 2014

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted; whether permission given for representation by a lawyer or paid agent

EXTENSION OF TIME

Background

[1] Ms Rachel Penrose filed an application for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Penrose’s application relates to the termination of her employment by Loral Ipsum (Aust) Pty Ltd (Loral Ipsum) on or around 26 August 2013, and is date-stamped by the Commission as having been received on 15 October 2013. Ms Penrose’s witness statement indicates that she was advised by text message on 26 August that her employment had been terminated. Later on the same day she went into work and picked up a letter of termination, dated 22 August 2013.

[2] Section 366 of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. If Ms Penrose’s employment was terminated on 26 August 2013 (the latest of the two dates referred to), her application would need to have been made to the Commission no later than 16 September 2013 in order for it to be within time. Ms Penrose’s application is therefore just over one month out of time.

[3] A conference of the parties pursuant to s.368 of the Act has not been held, since Loral Ipsum objects to the continuation of Ms Penrose’s application arguing it was made after the period allowed for in the Act. Ms Penrose acknowledged this fact and sought an extension of time pursuant to s.366 of the Act.

[4] The circumstances of Loral Ipsum terminating Ms Penrose’s employment include the following;

• She was employed as a machine operator from around January 2011 until her termination.



• In early 2012, Ms Penrose sustained an injury and returned to work, initially on light duties and resumed full duties in mid 2012. The injury is alleged to have been aggravated in December 2012, after which Ms Penrose returned to work on light duties.



• In August 2013, the applicant lodged a WorkCover claim.



• Ms Penrose has a significant medical history, including depressive illness and related conditions, for which she has been prescribed medication.



• Loral Ipsum terminated Ms Penrose’s employment either by letter on 22 August or by text on 26 August. The company’s letter to Ms Penrose refers to her “ongoing health issues which are restricting your ability to perform even the simplest of tasks while on light duties ...”. 1 Mr Greg Pearce, the company’s Managing Director then says that;




“As the employer, I am responsible for providing a safe workplace for all employees and, in your case, I am unable to do so given your current work restrictions regarding your health. I do not have a role that I am able to offer you.” 2

[5] Ms Penrose’s witness statement indicates the following events and action after her dismissal;

• Later in the morning of 26 August she rang the Commission who advised that the Commission could not give her legal advice.



• She then rang a major plaintiff law firm who she says advised “they could not assist me until my WorkCover claim had been accepted.”



• Also on 26 August, she saw her medical practitioner who adjusted her medication. She says that her medication was “effectively doubled” 3 and that the combination of her aggravated medical symptoms and the changed medication caused her to be “psychologically and cognitively incapacitated”.4 Between the date of dismissal and 15 October she “rarely left” her house.5



• In early October 2013, her WorkCover claim was accepted.



• Ms Penrose met with her current solicitors, Nowicki Carbone, on 15 October 2013, having contacted them on 9 October. They advised she had an entitlement to make a general protections claim under the Act, but that the entitlement was subject to a time limit. Ms Penrose issued instructions to her solicitor to immediately make such an application (and the file records the application was made on 15 October).

[6] Loral Ipsum opposes the granting of an extension of time on the basis that no exceptional circumstances exist.

Legislative scheme

[7] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[8] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”.  6

Consideration

[9] I turn to consider each of the criteria set out in subsection 366(2) of the Act.

The reason for the delay

[10] Ms Penrose submits that between the time of her dismissal and the date of making her application to the Commission, she was psychologically and cognitively incapacitated. She also submits she took action to dispute her dismissal, on 26 August, but did not pursue such action after initial legal advice. She submits that she sought further legal advice once she “was able to get on top of [her] symptoms and [her] medication was reduced” and made an application to the Fair Work Commission immediately after she became aware of her rights. 7

[11] I accept that the combination of Ms Penrose’s post-employment medical condition and what she understood to be the legal advice she received on 26 August 2013 are the reason for her delay in making an application to the Commission for a general protections remedy.

Any action taken by the person to dispute the dismissal

[12] I accept that Ms Penrose took immediate action after her dismissal to establish her rights. Loral Ipsum submit, correctly, that there is no evidence before me that deals with what would have happened had she been told to proceed with a general protections application. Nonetheless, I accept that Ms Penrose made contact with two bodies - the Commission and a law firm - on 26 August and accept this as evidence that at least on 26 August 2013 she was concerned enough to want to do something about her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[13] Loral Ipsum do not directly submit there will be prejudice if an extension of time is granted, however they indicate generally that there will be prejudice in dealing with the late application in circumstances where the need to do so has expired, and that the statutory framework of the Act is designed to create certainty for all concerned. The company submits that “[a] late application where no exceptional circumstances exist must therefore be prejudicial”. 8

[14] In the event that an extension of time is granted to Ms Penrose, the prejudice to Loral Ipsum will be principally the prejudice of the elapsed time between the date on which the termination of employment took effect and the date on which the application was made.

The merits of the application

[15] The merits of the application are not entirely apparent on the basis of the material provided to date, which is not to say the application is without merit.

[16] Ms Penrose’s application asserts that her dismissal was because of one or more of three alternatives - that she was dismissed either because she made a WorkCover claim; because she had a disability (being her workplace injury); or that she had been temporarily absent from employment due to illness or injury. However these assertions are not particularised in the application or addressed in a meaningful way in either of Ms Penrose’s witness statement, her written submissions for this extension of time application, or in Loral Ipsum’s written submissions. Further, Loral Ipsum are yet to file the employer response material in relation to the substantive application.

[17] The Federal Magistrates Court has held that an alleged workplace injury can constitute a ‘physical or mental disability’ for the purposes of s.351(1) of the Act 9; and that a consequential application for workers compensation, including one which is yet to be determined, can be a workplace right within the meaning of s.340(1)10.

[18] The Fair Work Regulations prescribe the circumstances in which an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury 11. The Applicant’s material is insufficient to allow me to determine which, if any, of the categories she says might have been contravened by the employer in her dismissal.

[19] On the basis of the material before me so far, I am able to find only that the application may have some merit, but only if there is sufficient evidence to connect Ms Penrose’s termination with one or more of the alternative breaches she has indicated.

[20] While it is of course the case that Loral Ispum will have the onus of proof to show that any adverse action taken against Ms Penrose was not for a prohibited reason, the onus may be discharged with direct testimony from the decision-maker which is accepted as reliable 12.

Fairness as between the person and other persons in a like position

[21] The Commission’s consideration in respect of this criterion is a consideration of Ms Penrose’s situation in comparison to other persons who may have been dismissed and who allege a breach of the Act’s general protections provisions.

[22] In this regard, the reasons for the delay in making an application become relevant. That is, after Ms Penrose was dismissed, she initially considered challenging the dismissal and appears to have relied upon what she was told by a law firm. She instituted action only after learning that she did have rights to question the grounds of her dismissal.

[23] In all, it is likely that similarly dismissed employees equipped with new information about the termination of their employment, might be granted the discretion of an extension of time for the filing of a general protections application, providing there are not reasons, arising from the other criteria of s.366(2), that would militate against the exercise of the discretion.

Decision

[24] Having considered all of the circumstances relating to Ms Penrose’s application to the Commission, I am of the view this is a finely balanced matter, for the reason the merits of the application are not plain on the basis of the material before me.

[25] Were there not other factors in favour of the grant of an extension of time, it would likely not be granted.

[26] However, I find three factors combine to form the exceptional circumstances required by s.366 to grant an extension of time, namely; Ms Penrose’s initial intention to challenge her dismissal that was not pursued because of advice she received; what she says was her psychological and cognitive incapacity from 26 August to early October; and the new legal advice she received in October 2013 that she had rights and must act immediately.

[27] As a result, I am satisfied there are exceptional circumstances in the manner envisaged by s.366 of the Act for the grant of a further period to Ms Penrose for the making of an application under s.365.

[28] An order extending the period of time in which Ms Penrose may make her application is issued at the same time as this decision.

REPRESENTATION BY LAWYER OR PAID AGENT

[29] The Act requires the permission of the Commission to be represented by a lawyer or paid agent. Both parties to this matter seek permission to be represented by a lawyer.

[30] Subsection 596(2) of the Act provides as follows:

“(2) FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[31] The Full Bench has said in relation to this provision;

“... Even if one or more of these requirements is satisfied that does not dictate that the discretion should automatically be exercised in favour of granting permission to appear. ...” 13

[32] In doing so the Full Bench endorsed the finding of the Federal Court in the matter of Warrell v FWA 14, in which the following was said by Flick J.;

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission””. 15

[33] In the case of Ms Penrose, it is submitted the matter is of significant complexity; that the applicant will be unable to effectively represent herself; that self-representation carries the risk for the applicant of the matter proceeding unfairly; and that a denial of representation may lead to unfairness to the Applicant.

[34] On the part of Loral Ipsum, the submission is made that the conflicting evidence and issues of relevance of medical evidence create a complexity to the matter; that since the Respondent also would have difficulty in understanding the legislative provisions, there would be unfairness to the Respondent if it were not legally represented; and that fairness between the parties should mean that if the Applicant is legally represented, then so too should be the Respondent.

[35] The parties’ representatives submissions overstate the complexity ahead of them in the matter for which permission for representation is sought.

[36] The matter for which permission for representation is sought is a private conference to be conducted in accordance with s.368 of the Act. Should the dispute not be settled in the conference, I may give consideration to the issue of one or both of two certificates 16, after which the matter can proceed to a hearing in a Court. My consideration of a grant of permission for representation is not in relation to any later Court hearing. The alternative of a consent arbitration before the Fair Work Commission is apparently not available, since the Transitional Provisions of the Amending Act provide that the amendments apply to dismissals that take effect after the commencement of the amending Schedule (which was 1 January 2014)17.

[37] Nonetheless, I accept the direct parties may need advice and assistance in the conference. Their representatives may be able to assist in that task and facilitate the preparation of heads of agreement, if an agreement for the resolution of the dispute crystallises. After considering the requests, together with the decision of Flick J referred to above, I am inclined to grant permission for representation of both parties in the forthcoming conference in order to allow the conference to be conducted more efficiently, taking into account the complexity of the matter.

[38] In granting permission for representation, it is not without reservation, and I expect each party proper to themselves be in a position to personally discuss the events that led to the dismissal; the reasons held in the employer’s mind at the time of dismissal; and what each party seeks the resolution of the conference to be.

[39] If the parties’ representatives are not able to facilitate the conference in this manner, I would not be disposed to form the view that the parties’ representation would allow the conference to be conducted more efficiently, taking into account the complexity of the matter.

COMMISSIONER

 1   Attachment to the Application for FWA to deal with a General Protections Dispute lodged on 15 October 2013.

 2   Ibid.

 3   Witness statement of R Penrose dated 11 December 2013, para 12.

 4   Ibid, para 13.

 5   Ibid, para 15.

 6   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 7   Witness statement of R Penrose dated 11 December 2013, para 16.

 8   Respondent’s submissions in reply dated 20 December 2013, para 21.

 9   Stephens v Australian Postal Corporation (No.2), [2011] FMCA 448, at [94].

 10   Ibid, see [15] and [19].

 11   Fair Work Regulations 2009, Reg 3.01.

 12   Board of Bendigo Regional Institute of Technical and Further Education v Barclay, [2012] HCA 32, at [45].

 13   G & S Fortunato Group Pty Ltd v J. Stranieri, [2013] FWCFB 4098, at [7].

 14 [2013] FCA 291.

 15 Ibid, at [24].

 16   Fair Work Act 2009, s.369 and s.370.

 17   Fair Work Amendment Act 2013, Schedule 7, Part 6 (Consent arbitration for general protections and unlawful termination).

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