Nulty v Blue Star Print Group Pty Ltd
[2010] FWA 6989
•9 SEPTEMBER 2010
Note: An appeal pursuant to s.604 (C2010/5046) was lodged against this decision - refer to Full Bench decision dated 16 February 2011 [[2011] FWAFB 975] for result of appeal.
[2010] FWA 6989 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Cheyne Leanne Nulty
v
Blue Star Print Group Australia Pty Ltd
(C2010/3932)
COMMISSIONER CAMBRIDGE | SYDNEY, 9 SEPTEMBER 2010 |
General protections contraventions involving dismissal – request for FWA to allow extension of time for lodgement of application - request to extend time refused - claim dismissed.
[1] This matter involves an application for Fair Work Australia (FWA) to deal with a dispute involving dismissal and was made pursuant to section 365 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 3 June 2010. The application was made by Cheyne Leanne Nulty, (the applicant) and named the respondent employer as Blue Star Print Group Australia Pty Ltd, (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 24 February 2010. Consequently the application was made 39 days after the standard time limit prescribed by section 366 of the Act. The employer made a jurisdictional objection to the application on the basis that the application had not been made within 60 days of the dismissal.
[3] Subsequently a Hearing to deal with the question of extension of time was held on 13 August 2010. At the Hearing the applicant appeared unrepresented and the employer was represented by Mr K Stenner from the Printing Industries Association of Australia.
[4] The applicant provided evidence as a witness. She attested to the veracity of a document that had been filed in the proceedings and which was admitted and marked as Exhibit 1. During the proceedings the applicant tendered further documentary material which was also admitted into evidence. The employer called one witness, Mr Matthew Roland Bates, the employer’s Head of Sales.
Factual Background
[5] The applicant had worked for the employer for approximately 5 months. On 24 February 2010, the applicant was advised of her termination of employment. The applicant’s dismissal occurred during a probationary period established at the commencement of the employment. The basis for the decision to dismiss the applicant involved alleged failure to meet the employer's performance expectations.
[6] In March 2010 the applicant made a formal complaint to the Fair Work Ombudsman (FWO). Apparently that complaint was not received by the FWO.
[7] During April 2010 the applicant's father was hospitalised for bowel cancer surgery and the applicant drove to Queensland to support her father through his illness.
[8] On about 14 April 2010 the applicant made enquiries with the FWO regarding her complaint. That agency had no record of her complaint and therefore on 19 April 2010, the applicant filed a fresh complaint with the FWO. That complaint related to the applicant's dismissal.
[9] On 21 April 2010 the FWO advised the applicant that the aspect of her complaint that related to an alleged unfair dismissal was a matter which needed to be lodged with FWA within 14 days from the date of the dismissal.
[10] On or about 26 April 2010 the applicant lodged a letter of complaint with the Human Rights and Equal Opportunity Commission (HREOC). This complaint related to the applicant's dismissal and other matters regarding her employment.
[11] On or about 7 May 2010 the applicant was advised that as a consequence of investigations by the FWO, an underpayment in respect of car allowance was to be rectified. On 26 May 2010 the FWO closed the file in respect of the applicant's complaint and advice to that effect was issued to both the applicant and the employer. That advice also stated that any unfair dismissal application needed to be made with FWA within 14 days from the date of the dismissal.
[12] In early June 2010 the applicant made telephone enquiries with FWA about the lodgement of any unfair dismissal claim. These enquiries confirmed the 14 day time limit for lodgement of any unfair dismissal claim. However the applicant was advised that she was able to apply for a breach of general protections application. Consequently the application in this matter was lodged on 3 June 2010.
The Applicant’s Case
[13] The applicant submitted that during the period between her dismissal on 24 February 2010, and the lodgement of the claim for general protections contravention on 3 June 2010, a combination of various factors created exceptional circumstances that delayed the lodgement of her claim. These factors included the hospitalisation of her father with a potentially life threatening illness, problems associated with a failure of technology, postal errors, miscommunication, and the stress and anxiety associated with her father's condition.
[14] The applicant submitted that very soon after she was advised by FWA of the capacity to make a general protections application she did so and that this demonstrated that she acted very quickly once she became aware of the capacity to bring an application other than an unfair dismissal claim. The applicant submitted that FWA should determine that exceptional circumstances existed and thereby permit the claim to proceed.
The Respondent’s Case
[15] Mr Stenner, who appeared on behalf of the employer, filed written submissions opposing the granting of any extension of time. Mr Stenner submitted that none of the factors that had been provided as explanations for the delay could, either individually or collectively, amount to “extenuating circumstances”. Specifically, Mr Stenner submitted that there was no explanation that could satisfy FWA that the applicant was actually unable to lodge an application for unfair dismissal in the period after dismissal up to 3 June 2010.
[16] Mr Stenner mentioned the Decision of the Industrial Relations Court of Australia in the case of Brodie-Hanns v MTV Publishing Ltd 1 and he sought to rely upon that Decision as support for rejection of the applicant’s request to have an extension of time granted.
[17] Mr Stenner made further submissions which challenged the applicant's alleged inability to make a general protections claim within the time limit. In this regard Mr Stenner mentioned that the applicant had managed to make a claim with the FWO and HREOC during the relevant period. Mr Stenner said that the applicant had failed to act in a timely way and had not shown that there were exceptional circumstances that should permit FWA to exercise the discretion to extend time. Mr Stenner urged FWA to dismiss the application.
Consideration
[18] Subsection 366 (2) of the Act provides FWA with a discretion to extend the time limit of 60 days as fixed by subsection 366 (1). Subsection 366 (2) is in the following terms:
(2) FWA may allow a further period if FWA 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.
[19] As can be seen from subsection 366 (2), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are five separate factors set out in paragraphs (a) to (e) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.
[20] Although it may be considered as trite law, it is important to remember the well-established starting point for any consideration to extend a prescribed time. In this regard the following extract from the Judgement of Fitzgerald J in Lucic v Nolan 2 is relevant:
“Where specific periods are fixed they are quite short. That carries obvious implications. However, the time limitations are not absolute. ... the court is given a discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained.” 3
[21] Consequently the applicant assumes a considerable onus to convince FWA to exercise the discretion to extend time.
Subsection 366 (2) (a) - the reason for the delay
[22] The applicant advanced that exceptional circumstances were created by a combination of her father's illness and technological and other problems associated with the lodgement of a claim with FWO. These factors need to be examined separately and in combination.
[23] The serious illness of a close relative would often provide a basis to establish exceptional circumstances. In instances where a (potential) applicant may have been understandably preoccupied with concern and attention for a close relative who was suffering serious illness, there would usually be an understandable acceptance that matters such as the lodgement of a general protections claim might be of second or third order priority. Consequently in this instance I would be prepared to accept that a valid reason for the delay in the lodgement was established in respect to that period connected with the applicant's travel to Queensland to provide support for her sick father.
[24] However, two countervailing aspects relating to the applicant's sick father need to be considered. Firstly, the period associated with the applicant's travel to Queensland in respect of her father's sickness only accounts for at most, a 20 day period during the overall 99 day period between dismissal and the lodgement of the application in this matter. Secondly, during the period that can be directly connected to the applicant's concern for her father the applicant was able to successfully launch a variety of other claims and applications with various agencies.
[25] There was no evidence provided which verified the alleged technological problems that the applicant claimed prevented the successful lodgement of a claim with FWA. It did appear that the applicant was informed in about mid-March that an unfair dismissal claim needed to be filed within 14 days. In addition, the applicant would have likely received information about the impact of her short length of employment as a potential impediment to an unfair dismissal claim. During April and May the applicant successfully pursued claims with inter alia, the FWO. The finalisation of the applicant’s FWO claim stimulated further enquiries with FWA which alerted the applicant to the potential to make a general protections claim as opposed to an unfair dismissal claim.
[26] Consequently the evidence very strongly points to the reason for the delay to be more accurately associated with some ignorance about the potential for making a general protections claim. Therefore the stimulus for activating these proceedings came from “The FWA consultant” 4 who told the applicant that she was not eligible to make an unfair dismissal claim because she had only been employed for about 5 1/2 months, but she was able to apply for a breach of general protections claim.
Subsection 366 (2) (b) - any action taken by the person to dispute the dismissal
[27] The applicant initiated various actions in response to her dismissal. As a consequence of one of the complaints made by the applicant, the employer rectified an underpayment of car allowance. The applicant also made complaint with HREOC and apparently also with Workcover.
[28] The employer could have understandably believed that the extent of any disputation in connection with the applicant's employment and dismissal had been encompassed by the various matters that had been commenced. The employer would have proper basis for believing that if it was required to answer a general protections claim it would have emerged within time and during the period that the applicant was initiating the other complaints. Consequently this factor does not assist the applicant but instead provides support for the employer’s position in opposing an extension of time.
Subsection 366 (2) (c) - prejudice to the employer (including prejudice caused by the delay)
[29] The employer suggested that as it had been required to defend the various other matters that the applicant had initiated, there was considerable “overlap” in respect of the issues that underpinned the various complaints made by the applicant. There was implicit in the employer's position, a suggestion that the proceedings were being initiated by the applicant with a level of vexatiousness and therefore the employer suggested it would be prejudiced if it was required to defend a further claim.
Subsection 366 (2) (d) - the merits of the application
[30] It would appear that this factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination. The employer submitted that there was ample evidence to establish justifiable reason for the applicant's dismissal relating to a failure to meet reasonable performance requirements. Further, the employer mentioned that the applicant was engaged on a probationary basis and the dismissal needed to be considered in the context of performance assessments understood to be relevant to probationary periods of employment.
[31] There was an understandable tendency for the parties to contemplate this matter as if it was an unfair dismissal claim. If the extension of time was granted the determination of the matter would only occur via a general protections court application. In this context it is important to stress that the application did not specify the nature of the alleged contravention. It was only as a result of questioning by FWA that the applicant asserted that the alleged contravention involved discrimination against her on the basis of her sexual preference.
[32] The basis for any potential success of a general protections court application relating to alleged discrimination on the basis of sexual preference was not the subject of any formal evidence put before FWA. The absence of any mention of this particular alleged contravention from the application documentation meant that when that issue was revealed during proceedings the employer appeared to be genuinely surprised. The employer's representative made strong believable assertions that he was completely unaware of the applicant's sexual preference until such time as that had been revealed in response to questions by FWA in the proceedings.
[33] Consequently I believe that based on the limited material that had been put before FWA, the alleged contravention involving discrimination against the applicant because of her sexual preference may have only limited prospects for success.
Subsection 366 (2) (e) - fairness as between the person and other persons in a similar position
[34] There was evidence provided by the employer that suggested that other employees who had failed to make their sales targets were treated similarly to the applicant. These other employees were not serving a period of probation at the time at which the employer raised complaint with them about a failure to meet sales targets. Disciplinary action in the form of written warnings and performance improvement programmes were apparently implemented in respect of these employees.
[35] It is difficult to assess this factor particularly as the basis for the applicant's complaint has been revealed to relate to her sexual preference. It is difficult to contemplate an assessment with respect to these other employees without some evidence of their sexual preferences. In the absence of any detailed evidence about the treatment of other employees who may or may not have been in a similar position to the applicant I have decided to treat this factor as being neutral.
Exceptional Circumstances
[36] Having examined each of the factors contained within subsection 366 (2) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofMr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 5. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in (a) to (e) was unusual or out of the ordinary.
Conclusion
[37] In this instance the exercise of the discretion to extend time has been required in respect to a significant delay of some 39 days after a time limit of 60 days, thereby the total period between dismissal and date of lodgement was 99 days.
[38] The reasons offered for the delay were not satisfactorily supported by the evidence. Although I would be prepared to accept that the serious illness of a close relative can provide justifiable basis for an extension of time, in this case it has become clear that factors other than the illness of the applicant's father represented the true reason for the delay in the lodgement of the claim.
[39] The claim was only made after the applicant had been informed of the longer lodgement period combined with no minimum qualifying periods permitted for general protections applications, compared with the more stringent requirements for unfair dismissal applications.
[40] Further, there was some obvious difficulty associated with the potential prospects for success of the claim. The other factors under consideration either did not significantly assist the applicant's claim for FWA to exercise the discretion to extend time or were of neutral impact. Importantly, none of these factors had any unusual characteristic that might provide basis for a finding that exceptional circumstances existed.
[41] Consequently, in the absence of exceptional circumstances FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 366 (1) of the Act. Therefore the application must be dismissed.
COMMISSIONER
Appearances:
Applicant in person.
Mr. K Stenner (Printing Industries Association of Australia) for the Respondent.
1 Brodie-Hanns v MTV Publishing Ltd, Industrial Relations Court of Australia, [Marshall J], 67IR 298.
2 Lucic v Nolan, Federal Court of Australia, Fitzgerald J, 45 ALR 411.
3 Ibid @416.
4 Exhibit 1, @ paragraph 33.
5 Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
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