Ms Rebecca Veale v Aspire Group Enterprises ATF Real Estate Prosperity Trust T/A Premium Property Management Specialists

[2016] FWC 6256

[2016] FWC 6256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ms Rebecca Veale
v
Aspire Group Enterprises ATF Real Estate Prosperity Trust T/A Premium Property Management Specialists
(C2016/4636)

COMMISSIONER SAUNDERS SYDNEY, 5 SEPTEMBER 2016

Application to deal with contraventions involving dismissal – time extended to make application

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Rebecca Veale (the applicant) a further period for her general protections application (the Application) to be made.

The Jurisdictional Objection

[3] On 31 August 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant, together with her solicitor, Ms Mary Kaukas, gave evidence in support of her application for an extension of time. The respondent called evidence from:

• Mr Mike Lao, Managing Director for the respondent;



• Ms Amy Sim, Human Resources Manager for the respondent; and



• Ms Samantha Utting, Property Manager for the respondent.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[8] There must be an acceptable reason for the delay in making the general protections application. 6

[9] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7

[10] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:9

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[11] There is no dispute and I am satisfied on the evidence that the applicant was dismissed on 4 July 2016. She was notified of her dismissal on that day.

[12] The 21 day time period for the applicant to make her Application expired on 25 July 2016. 10 Given that the applicant filed her Application on 26 July 2016, the Application was one day late.11

[13] In accordance with the principles summarised in paragraphs [7] to [10] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 25 to 26 July 2016. However, the circumstances from the time of the dismissal (4 July 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[14] The applicant relies on the error by her solicitor in miscalculating the 21 day time period as the reason for the one day delay in filing her Application.

[15] The relevant timeline of events after dismissal on 4 July 2016 may be summarised as follows:

(a) In the week following her dismissal on 4 July 2016, the applicant attended the Registry of the Commission in Adelaide, to enquire about potential remedies available to her in relation to the termination of her employment. The applicant was provided with a blank F8 form. The applicant and her partner commenced completing the F8 form but decided they needed legal advice;

(b) On Monday, 11 July 2016, the applicant’s partner made an enquiry of Andersons Solicitors through their website seeking advice in relation to the applicant’s dismissal;

(c) On 12 July 2016, Andersons Solicitors sent an email to the applicant, inviting her to attend a first interview;

(d) Later on 12 July 2016, the applicant caused her partner to respond to the email from Andersons Solicitors, indicating that she would contact them on the following day to arrange an appointment;

(e) On 13 July 2016, the applicant contacted Andersons Solicitors and arranged an appointment to meet with a solicitor, Ms Margaret Kaukas, on Thursday, 14 July 2016 at 2:00pm;

(f) At 2:00pm on 14 July 2016, the applicant met with Ms Kaukas to obtain legal advice about her dismissal. The applicant informed Ms Kaukas that she would consider the advice and provide her instructions as soon as possible;

(g) On 15 July 2016, the applicant caused her partner to send an email to Ms Kaukas, indicating that the applicant wished to proceed with a general protections application and making an enquiry about an appropriate costs agreement;

(h) Ms Kaukas consulted with her managing partner about a proposed costing arrangement for the applicant and then caused her administrative assistant to contact the applicant to make a further appointment with the applicant;

(i) On 21 July 2016, the applicant met with Ms Kaukas, being Ms Kaukas’ first available appointment. At that time the applicant signed a costs agreement and provided instructions to Ms Kaukas to draft and file a general protections application in the Commission. During this meeting, the applicant sought and received an assurance from Ms Kaukas that her general protections application would be filed within the 21 day time limit;

(j) At about 5:51pm on 25 July 2016, Ms Kaukas emailed a copy of the draft Application to the applicant and asked her to review it. The applicant responded to Ms Kaukas in an email sent at 6:27pm on 25 July 2016. The applicant’s only comment in relation to the draft Application was to correct a typographical error; and

(k) At about 3pm on 26 July 2016, Ms Kaukas filed the Application. The Application was filed about 15 hours outside the time limit because Ms Kaukas made a mistake as to when the 21 day time period expired. In particular, Ms Kaukas mistakenly calculated the end of the 21 day time period as 26 July 2016. It was only about an hour before the Application was filed on 26 July 2016 that Ms Kaukas realised her mistake.

[16] The timeline of events set out in the previous paragraph is taken from the evidence given by Ms Kaukas and the applicant to support her application for an extension of time. I accept the evidence given by Ms Kaukas and the applicant in relation to these matters as truthful and reliable.

[17] In my view, it is apparent from the evidence summarised in paragraph [15] above that:

(a) At all times between 4 and 26 July 2016 the applicant acted reasonably, diligently and in a timely manner to have her Application filed within time. In particular, the applicant engaged an experienced solicitor shortly after her dismissal, gave instructions in a timely manner, and sought and received an assurance from her experienced solicitor that her Application would be filed within time. The applicant took an active interest in pursuing her Application and satisfying herself that it would be filed within time;

(b) Ms Kaukas made a genuine mistake about the date on which the 21 day time limit expired. Ms Kaukas did not realise her mistake until about an hour before filing the Application. By that time, the Application was already out of time (by about 14 hours). Ms Kaukas’ mistake is the operative reason why the Application was filed one day late; and

(c) In the circumstances, the applicant is blameless for the one day delay in filing her Application.

[18] For the reasons set out in paragraphs [15] to [17] above, I am of the view that the applicant’s reason for the delay in filing her Application was out of the ordinary course, unusual, special and uncommon. 12

[19] This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[20] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 13

[21] At the time the applicant was dismissed she asked the respondent whether the dismissal was due to her pregnancy and she was told that it was not. In addition, on the afternoon of her dismissal the applicant sent a text message to an employee of the respondent in which the applicant stated: “Yeah they won’t get away with this”. This text message was sent to a Property Manager employed by the respondent, not a managerial employee of the respondent.

[22] In my view, the conduct referred to in the previous paragraph on the part of the applicant was not action taken by her to dispute her dismissal within the meaning of s.366(b). The purpose of the provision is to put an employer on notice that a claim may be made and for the employer to take steps, if it wishes to do so, to prepare for such a claim. Taken at its highest, the applicant’s conduct amounts to a question or enquiry about the reasons for her dismissal and a communication with a work colleague about a potential claim by her against her former employer. This factor weighs against granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[23] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[24] A long delay gives rise “to a general presumption of prejudice”. 16

[25] The employer must produce evidence to demonstrate prejudice arising from the delay. It is then up to the employee to show that the facts do not amount to prejudice. 17 No persuasive evidence of prejudice arising from the one day delay was adduced by the respondent in this case.

[26] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[27] The applicant contends that the respondent discriminated against her by dismissing her on the grounds of her pregnancy. There is no question that the applicant notified the respondent that she was pregnant on 21 or 22 June 2016 and she was dismissed on 4 July 2016. The respondent denies that any part of its reasons for dismissing the applicant was connected or related to her pregnancy.

[28] I am satisfied on the evidence before me that the substantive application is not without merit. However, the resolution of the contested factual question concerning the reasons for the applicant’s dismissal will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 18considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[30] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[31] Having taken into account the matters referred to in paragraphs [11] to [30] above, I am, on balance, satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were out of the ordinary course, unusual, special and uncommon, in that she acted reasonably and diligently to instruct an experienced solicitor to file her Application on time and she sought and received assurances from the solicitor that the Application would be filed within the 21 day time limit. The sole reason for the one day delay was the error by the applicant’s solicitor in calculating when the 21 day time period expired. Those matters, together with the other factors under s.366, lead me to conclude that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied that it is appropriate to exercise my discretion to extend time.

[32] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue orders together with this decision [PR585033].

COMMISSIONER

Appearances:

Ms M Kaukas, solicitor from Andersons Solicitors, on behalf of the applicant;

Ms A Bisbal,from the Real Estate Employer’s Federation of South Australia and the Northern Territory, on behalf ofthe respondent.

Hearing details:

2016.

Newcastle:

August, 31.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C,

21 November 2000) Print T3496 at [24].

 5   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 7   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 9   [2016] FWCFB 349 at [31]

 10   That is, 21 days from 4 July 2016 (not including 4 July) is 25 July 2016.

 11   That is, 26 July 2016 is 1 day after 25 July 2016.

 12   Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]-[25] and the authorities cited therein

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 14   Ibid.

 15   Ibid.

 16   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 18   [2015] FWC 8885

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<Price code C, PR584937>