Natasha McCallum-Abdo v Canstruct International Pty Ltd

[2019] FWC 7525

[2019] FWC 7525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Natasha McCallum-Abdo
v
Canstruct International Pty Ltd
(C2019/5606)

DEPUTY PRESIDENT LAKE BRISBANE, 31 OCTOBER 2019

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This decision concerns an application by Ms Natasha McCallum-Abdo (the Applicant) under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to her dismissal by Canstruct International Pty Ltd (the Respondent). The Applicant’s employment commenced with the Respondent on 8 April 2019 and was terminated on 14 August 2019. The Applicant filed her general protections application at 3:27 pm on 6 September 2019.

[2] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The period of 21 days ended at midnight on 4 September 2019. The application was therefore lodged 2 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] Directions were issued on 30 September 2019 requiring the Applicant to file submissions and material setting out the basis that there were exceptional circumstances justifying the granting of a further period in which to make her application, by 4:00pm on 7 October 2019. The Respondent was directed to file submissions and any material to support its view by 4:00pm on 14 October 2019. On 11 October 2019, the Applicant filed her material (late). Further, the material was served on the Respondent on 14 October 2019 (again, late). Owing to the Applicant’s lateness, the Respondent was further directed to file (and serve) its material by 4:00 pm on 15 October 2019. The hearing proceeded on 16 October 2019 by telephone before me.

[4] Prior to the hearing, the Respondent sought permission to be represented by a lawyer and after considering the Respondent’s submission, I granted permission. Pursuant to s. 596 of the Act, I was persuaded that the involvement of legal representation would allow the matter to be heard more efficiently.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the granting of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[9] In order for the Applicant’s general protection application to proceed, it is necessary for her to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I will consider each of those matters in turn.

The reason for delay – s. 366(2)(a)

[10] The Commission must consider the reason for the delay. The Act does not specify what reason for delay might weigh in favour of an extension being granted, however, decisions of the Commission have referred to an acceptable or reasonable explanation. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters,  5 the Full Bench of the Commission noted an absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each.6

[11] The Applicant’s application was made 23 days after her dismissal. The Applicant stated that her application was not made within the 21 days of her dismissal because of the following reasons:

•  The Applicant sought to resolve the matter directly with the Respondent and notes several efforts to correspond with the Respondent during the 21 days following her dismissal. According to the Applicant, the focus on resolving the matter directly with the Respondent meant that she did not use the 21 days to lodge her application in time;

•  The Applicant asserts that she was confused and had received conflicting information regarding the timeframes for lodging a general protections application. Specifically, the Applicant referred (erroneously) to the timeframe for general protection applications within the Queensland state jurisdiction being 28 days; and

•  The Applicant submits she suffered from a ‘four day migraine’ during the 21 days following her dismissal.

[12] To support these reasons, the Applicant provided sworn evidence at the telephone hearing on 16 October 2019 which attested to these reasons for the delay.

[13] With regard to these reasons, and on the evidence before me, I cannot determine that any of these reasons is an exception circumstance or combine to create exceptional circumstances giving rise to me exercising my discretion to allow an extension of time for the Applicant to lodge her application.

[14] With regard to the Applicant’s confusion about the timeframe, and that she had received conflicting information (referring to the Queensland state jurisdiction timeframe for general protection being 28 days), I do not accept this argument. The Industrial Relations Act 2016 (Qld) has the same 21 day timeframe as the Act. 7

[15] Regarding the Applicant’s ‘four day migraine’, no medical evidence of the impact the migraine had upon her ability to draft and make the application was provided to the Commission. In fact, during the 21 days following her dismissal, the Applicant was able to draft a three-page email on 27 August 2019 and a two-page letter on the 5 September in furtherance of her claim. It would seem that she could have been able, during the 21 day period, to make her application, given her ability to pen other documents relating to her dismissal.

[16] Ultimately, I have determined that the Applicant’s reasons for the delay do not persuade me to exercise my discretion to allow an extension of time for the Applicant to lodge her application. The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against the Applicant’s request for an extension of time.

Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)

[17] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favourable to the granting of an extension of time. 8

[18] The Applicant made it clear that she was aggrieved and this was made explicit by her email of 27 August 2019 to the Respondent. This email demonstrated that not only did she contest her dismissal but that she had some understanding of workplace rights and potential remedies available. It is notable that she did not identify any workplace right in this correspondence that she had exercised which had resulted in her termination.

[19] I accept that the Applicant took steps to contest her dismissal, aside from filing this application. However this consideration weighs only slightly in favour of an extension of time.

Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)

[16] I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. I attribute this factor little weight in the consideration of whether there are exceptional circumstances in this matter.

The merits of the application – s. 366(2)(d)

[20] In Kornicki v Telstra-Network Technology Group 9 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[21] The Applicant claims the Respondent contravened ss. 351 and 344 of the Act.

[22] Section 351 of the Act states:

“Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

[23] The Applicant claims that she experienced discrimination and, as a result of her protected attribute, was terminated from her employment. However, the Applicant did not provide evidence to support the contention that she was terminated on this basis. The Applicant did suggest that the Respondent used the phrase “doesn’t fit in” during the termination process; however, there was a lack of any evidence in the Applicant’s application to suggest that this phrase was necessarily used because of the Applicant’s multicultural background or by cause of her being a woman.

[24] Section 344 of the Act states:

“Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c) agree to, or terminate, an individual flexibility arrangement; or

(d) accept a guarantee of annual earnings; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Note 1: This section is a civil remedy provision (see Part 41).

Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).”

[25] The Applicant submitted that the Chief Operations Officer of the Respondent used his position to place her in a vulnerable position regarding her employment. As stated above, s. 344 of the Act concerns undue influence or pressure exerted on an employee in relation to a decision to make or not make certain agreements under the Act. I do not see how this section has been enlivened in this case. These particular allegations have not been explained in any detail and there is no evidence before me to presently support the Applicant’s contention that adverse action was taken against her for exercising a workplace right under this section of the Act.

[26] Exercising discretion to allow for an extension of time is essentially an interlocutory matter that does not allow for the merits (through evidence) to be fully tested. Although some elements of the application appear baseless, others may in the fullness of time be plausible. In any event, there is insufficient material before me to make any detailed assessment of the strength of the Applicant’s case.

[27] Accordingly, I am prepared to consider the merits of the application to be a neutral factor in the present case.

Fairness as between the Applicant and other persons in a like position – s. 366(2)(e)

[28] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[29] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

CONCLUSION

[30] The timeframe that applies to the exercise of a person’s right to bring an application under s. 365 of the Act 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.

[31] Having regard to all of the matters that I am required to take into account under s. 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from the Applicant having taken steps to contest the dismissal, none of the factors pursuant to s. 366(2) of the Act particularly weigh in favour of me granting the Applicant an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[32] Pursuant to section 366(2) of the Act, the Applicant’s extension of time request is denied and therefore the application made under s. 365 of the Act is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

Applicant: Ms Natasha McCallum-Abdo (self-represented)

Respondent: Mr Brett Heath (lawyer)

Hearing details:

By Telephone: 16 October 2019

Printed by authority of the Commonwealth Government Printer

<PR713895>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

 6   Ibid.

 7   Industrial Relations Act 2016 (Qld), s. 310.

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

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].