Pam Ahles v Zenitas Healthcare Pty Ltd

[2019] FWC 5927

[2019] FWC 5927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Pam Ahles
v
Zenitas Healthcare Pty Ltd
(C2019/3720)

DEPUTY PRESIDENT YOUNG MELBOURNE, 26 AUGUST 2019

Application to deal with contraventions involving dismissal – extension of time.

[1] This decision concerns an application by Ms Ahles under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. 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).

[2] Notwithstanding some confusion in the Applicant’s material, at hearing it was conceded that her dismissal took effect on 23 May 2019. Her application was lodged on 14 June 2019. The period of 21 days ended at midnight on 13 June 2019 and the application was therefore lodged 1 day out of time. Ms Ahles seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 26 June 2019, I issued directions for the parties to file materials and listed the matter for hearing at 10.00 am on 8 August 2019. Certain materials were filed by the parties in accordance with those directions. However, Ms Ahles filed no witness evidence.

[4] On 1 August 2019 my associate wrote to the representative for Ms Ahles noting that no witness evidence had been filed and inviting them to do so as a matter of urgency. No further materials were filed.

[5] At the hearing Mr Arness appeared for Ms Ahles. Mr Arness indicated that he intended to give evidence himself and also to call Ms Ahles to give evidence. He was unable to offer any explanation for his failure to file any witness material ahead of the hearing in accordance with the directions issued. After hearing from the company, I determined that I would hear evidence from Mr Arness and Ms Ahles. The company confirmed it did not oppose proceeding in this way and declined my invitation to make further submissions or provide further material in light of the unsatisfactory approach adopted by Mr Arness to the conduct of his client’s case.

[6] Mr Douglas appeared for the company.

Consideration

[7] 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. 1

[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 (Nulty) 2, 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.3

[9] 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 the delay

[10] 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 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 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.6 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.7

[11] In her material, Ms Ahles stated that the delay in making her application was due to representative error, the specific error being that her representative miscalculated the days between the dismissal taking effect and the last day for lodgment, resulting in the application being lodged 1 day late. Ms Ahles says that following inquiries to another solicitor, the Fair Work Commission and the Law Institute, she contacted Gigliotti Lawyers regarding her dismissal in the week commencing 3 June 2019. She says further that during the course of that week she provided to Mr Arness of that firm all relevant material regarding her dismissal. She gave evidence that she conferred with Mr Arness on 11 June 2019, and on 12 June 2019 confirmed that she wished Gigliotti Lawyers to act for her in relation to her general protections application. She says that Mr Arness provided her with a draft application, via email, for her review on 13 June 2019. She returned the application to Mr Arness that day, requesting one amendment and noting some further matters. She says that Mr Arness provided a final draft to her on 14 June 2019, following which she provided her instructions to file the application with the Commission. In these circumstances, she says that she is entitled to rely on her legal representative to file the application within time and was blameless as to the delay.

[12] Ms Ahles’ legal representative, Mr Arness, gave evidence. His evidence was consistent with that of Ms Ahles. He says that he was contacted by Ms Ahles in the week commencing 3 June 2019, most likely on 6 June 2019, regarding her dismissal and spoke to her twice on the telephone in that week. He also gave evidence that he had email contact with her on 6 June 2019. He says he was provided with all necessary documentation in relation to Ms Ahles’ dismissal on Friday 7 June 2019 and that he reviewed the material on that date. He says he spoke with Ms Ahles and arranged to confer with her on Saturday 8 June 2019 regarding her dismissal but due to personal circumstances was unable to do so. As Monday 10 June 2019 was a public holiday in Victoria, he arranged to confer with Ms Ahles on Tuesday 11 June 2019 and did so on that day. He says that at the conference with Ms Ahles on 11 June 2019, he discussed the application with her and requested that she confirm that she wished Gigliotti Lawyers to act for her in relation to her dismissal by no later than 12 June 2019. She did so on 12 June 2019. Mr Arness says that he provided a draft application to Ms Ahles for her review on 13 June 2019, which she returned later that day stating that she required one amendment to the draft. Mr Arness says he made the amendment requested, provided a final draft to Ms Ahles on 14 June 2019 and filed the application later that day at 2.34 pm. Mr Arness gave evidence that he miscalculated the 21 day lodgment period and considered that 21 lodgment period ended on 14 June 2019. He did not give evidence about how the miscalculation came about. He gave evidence that he diarised that the application had to be filed on 14 June 2019 but did not give evidence about when that occurred. Mr Arness tendered an email chain dated 13 June 2019 which includes an email from him to Ms Ahles at 2.58 pm on that date, which states that it attaches the draft application for Ms Ahles’ review and provides, relevantly, as follows:

“…Noting, of course, that the Application must be filed by no later than close of business tomorrow, Friday 14 June 2019.”

That email chain includes a response from Ms Ahles at 5.17 pm that day, requesting an amendment to the draft and otherwise indicating, generally, that the application can be filed. 8

[13] I accept the evidence of Mr Arness and Ms Ahles as to the chronology of events that led to the application being filed at 2.34 pm on 14 June 2019.

[14] The respondent concedes that representative error may constitute an exceptional circumstance but says that this is only the case when the applicant is “blameless”. The company says that in the present circumstances Ms Ahles did not seek legal representation until 11 June 2019, being 19 days after her employment was terminated and she has provided no explanation for this delay, other than that she was “shopping around” for a lawyer. Further, it says that there is no evidence that she inquired as to the status of her application after instructing her representative to file it. In these circumstances, it says that Ms Ahles is not blameless and as such, the error of her representative in miscalculating the 21 day lodgment period does not provide a reasonable explanation for the delay.

[15] Late lodgment due to representative error may be grounds for an extension of time. 9 As identified by the company, there is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.10 The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.11 Ms Ahles and Mr Arness both gave evidence that Ms Ahles first contacted Mr Arness regarding her dismissal in the week commencing 3 June 2019. Mr Arness’ evidence was that this most likely occurred on 6 June 2019. Further, Mr Arness’ evidence was that Ms Ahles had provided him with all the necessary information in relation to her dismissal by Friday 7 June 2019 and, further that he had reviewed that information on that date. I accept that evidence and find that Ms Ahles first sought legal assistance in relation to her claim in the week commencing 3 June 2019, most likely on Thursday 6 June 2019. Further, I find that Mr Arness had all of Ms Ahles paperwork for the application by 7 June 2019, being 15 days after the dismissal took effect and had reviewed it on that date. This is well within the 21 day lodgment period.

[16] In those circumstances, I do not consider it is the case, as submitted by the company, that Ms Ahles did not seek legal representation until 19 days after her dismissal and has provided no explanation for that. I accept that Ms Ahles did not meet with Mr Arness until 19 days after her dismissal or provide formal instructions to act for her until that time. However, by that time there had been multiple interactions between Mr Arness and Ms Ahles and Mr Arness had reviewed and been in possession of all the necessary paperwork relating to the dismissal for a number of days. Further, Mr Arness’ evidence, which I accept, was that he was meant to confer with Ms Ahles three days earlier but that this did not occur due to his personal circumstances precluding this. Accordingly, no delay on Ms Ahles’ behalf is established. Additionally, as evidenced by the email chain tendered by her, 12 Ms Ahles promptly provided her instructions to Mr Arness once provided with the draft application. I note that had Mr Arness correctly calculated and advised Ms Ahles as to the lodgment period, the application could still have been filed in time following receipt of Ms Ahles instructions in relation to the draft application on 13 June 2019.

[17] In light of all of the above, I find that Ms Ahles did not contribute to the delay in lodgment and, in the words of the respondent, was blameless as to it. For completeness, I reject the company’s submission that Ms Ahles failed to enquire as to the status of her application after instructing that it be filed and that this renders her liable for the delay. Given the chronology of events in relation to the filing of the application, such an inquiry was unnecessary and, in my opinion, does not result in any blame for the delay accruing to Ms Ahles. Further, whilst the circumstances from dismissal must be considered, the period of delay I must consider is the delay from the expiration of the 21 lodgment period to the date of lodgment. In this case, that period is 1 day. The evidence of Mr Arness was that the delay was due to his error in calculating when the lodgment period expired, as set out in his email to Ms Ahles on 13 June 2019. 13 I accept that evidence and find that the delay was due to Mr Arness’ error in miscalculating the 21 lodgment period and his advice that the application was required to be lodged by close of business on 14 June 2019. Accordingly, I find that the delay was due to Ms Arness’ error in miscalculating the 21 lodgment period and that Ms Ahles did not contribute to that delay.

[18] In my opinion, Ms Ahles has provided an acceptable or reasonable explanation for the delay in lodging the application. This weighs in favour the granting of an extension of time.

Action taken by the person to dispute the dismissal

[19] It is conceded that Ms Ahles did not dispute her dismissal. 14 This weighs against the granting of an extension of time.

Prejudice to the employer

[20] I cannot identify any particular prejudice that would accrue to the company were an extension of time to be granted and the company properly conceded that the delay of 1 day did not give rise to any particular prejudice. However, the mere absence of prejudice is not 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

[21] 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.

[22] Ms Ahles submits that she was dismissed in contravention of section 340 of the Act. This section provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right. ‘Adverse action’ is defined in section 342 and includes a dismissal. Section 341 provides, amongst other things, that an employee has a workplace right if the employee is able to make a complaint or inquiry in relation to their employment.

[23] Ms Ahles says that she made complaints and inquiries to her Manager, Mr Neville, during the course of her employment and that this was the reason, or a reason, for the termination of her employment on 23 May 2019. Ms Ahles gave evidence that she twice verbally complained to Mr Neville about his behaviour towards her, which she categorised as abusive and very rude. Attached to her application is an email from Ms Ahles to Mr Neville dated 9 May 2019, headed “Incident report- Bullying and Harassment”. 15 Ms Ahles does not expressly state in the application that the email of 9 May 2019 (9 May Email) is relied upon as a complaint, nor expressly annexes it to the application as evidence of a complaint made. However, I understand this to be the case. This also appears to be the basis upon which the company has proceeded.16 The 9 May Email asserts, amongst other things, that Mr Neville’s behaviour towards her is “unacceptable behaviour” and that she considers it to be bullying and harassment.

[24] The company accepts that it dismissed Ms Ahles. There is therefore no dispute that adverse action in the form of dismissal was taken by the company. However, the company strongly disputes that Ms Ahles’ employment was terminated because she exercised a workplace right. The company strenuously pressed its submission that the application is devoid of merit. The company submits that given the absence of merit no extension of time ought be granted and that in considering the factors in section 366(2) of the Act, the merits of the application cannot be considered a neutral consideration. 17

[25] The company says that Ms Ahles employment was terminated for poor performance and due to “irreconcilable differences between herself and her manger”. 18 The letter of termination provided to Ms Ahles states that the decision to terminate her employment has been made “on the basis that various aspects of your performance and suitability for the role are unsatisfactory.”19 Further, the company submits that at no stage during her employment did Ms Ahles make a complaint for the purposes of section 341 of the Act and that the matters relied upon by Ms Ahles are merely evidence of a disagreement between her and her manager. The company submits that the matters Ms Ahles relies upon as complaints are exchanges between her and Mr Neville in response to a lawful direction given to her by Mr Neville to perform the work allocated to her, conduct herself appropriately and respectfully towards her manager and to attend work as required.20 As to the 9 May Email, the company says these “concern work issues and nothing else” and while it concedes that the email makes reference to bullying and aggression, it says that no particulars of this are provided. The company relies on the absence of any formal complaint by Ms Ahles in relation to the alleged bullying, despite there being policies and procedures allowing for such complaints.

[26] Further, the company submits that the reason for the dismissal cannot have been the alleged complaints made by Ms Ahles. Ms De Zilwa, the company’s Chief Operations Officer at the time of the dismissal, gave evidence that she was the decision maker. She says she was unaware of any complaints made by Ms Ahles and did not have any direct contact with her. As such, it is submitted that any alleged complaints made by Ms Ahles cannot be a reason for the dismissal.

[27] Notwithstanding the force with which the company makes its submissions as to merits, I am not persuaded that on the material before me I can conclude that the application is devoid of merit. Given the interlocutory nature of these proceedings, the matters which are in dispute between the parties and noting the absence of any evidence from, or cross examination of, Mr Neville, I do consider the merits of the application as a whole to be a neutral factor.

Fairness as between the person and another person in a like position

[28] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Ms Ahles and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[29] 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.

[30] 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 1 day, was representative error, being Mr Arness incorrectly calculating the 21 ay lodgment period. I am further satisfied Ms Ahles did not contribute to that delay.

[31] Accordingly, I grant an extension of time under section 366(2) for the filing of the application to 14 June 2019.

DEPUTY PRESIDENT

Appearances:

A Arness of Gigliotti Lawyers for the applicant.

J Douglas of Maddison & Associates for the respondent.

Hearing details:

2019.

Melbourne:

August 8.

Final written submissions:

Applicant, 11 July 2019

Respondent, 17 July 2019

Printed by authority of the Commonwealth Government Printer

<PR711697>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   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]

 8   Exhibit A3

 9   Clark v Ringwood Private Hospital (1997) 74 IR 413; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell V A & PM Fornatoro T/A Tony’s Plumbing Service (2011) 202 IR 59

 10   Ibid

 11   Ibid

 12   Exhibit A3

 13   Exhibit A3

 14   Applicant’s Outline of Argument, Question 1e

 15   Form F8 – General protections application, Attachment

 16   Form F8A – Response to General protections application, Question 5.1, paragraph 2.8

 17   Respondent’s Outline of argument, Question 1h, paragraph 15

 18   Form F8A- Response to General protections application, Question 5.1, paragraph 2

 19   Letter of termination dated 23 May 2019, Form F8 – General protections application, Attachment

 20   Form F8A- Response to General protections application, Question 5.1, paragraph 2.11