Paula Lobb v Adept Building and Construction Pty. Ltd

[2013] FWC 5893

[2013] FWC 5893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paula Lobb
v
Adept Building and Construction Pty. Ltd.
(C2013/3793)

COMMISSIONER LEE MELBOURNE, 23 AUGUST 2013

Application to deal with contraventions involving dismissal - extension of time for lodgement of application- s.365, 366 Fair Work Act 2009

[1] On 2 April 2013, Ms Paula Lobb (the Applicant) made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed in contravention of Part 3-1 of the Act by Adept Building and Construction Pty. Ltd (the Respondent).

[2] An application made under s.365 must also comply with s.366 of the Act.

[3] Section 366 of the Act states;

“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.”

[4] The matter for determination is whether or not this application meets the requirements of section 366 of the Act.

Background:

[5] A telephone conference was convened by me on 16 May 2013. Ms Debra Lawn of Arnold Dallas McPherson sought permission to represent the Applicant and permission was granted. The Respondent was represented by Mr Daniel Hodges of the Master Builders Association Victoria.

[6] The Applicant, in her Form F8 Application for FWA to Deal with a General Protections Dispute (Form F8) listed the date of her dismissal as Monday 4 February 2013.

[7] During the telephone conference convened by me on 16 May 2013, the Applicant’s representative amended the claimed date of dismissal to be Thursday 7 February 2013. The Applicant claims that the employment relationship ended as a result of a constructive dismissal.

[8] In the Form F8A Employer’s Response to Application for FWA to Deal with a General Protections Dispute (Form F8A), the Respondent stated that the Applicant was still employed and that no dismissal had occurred. The Respondent regarded the Applicant as being on unpaid sick leave.

[9] The facts as to whether or not a dismissal has occurred are disputed. However, on the Applicant’s own version of the facts, the application was made 54 days after the date of the dismissal. For the purposes of this decision, it is assumed that the Applicant’s version of the facts are correct. However, to be clear, no determination is made in this decision as to whether or not the Applicant has been dismissed within the meaning of the Act. I simply note that, if in fact the Applicant has not been dismissed, the application is without jurisdiction.

[10] As an application must be made within 21 days after the dismissal took effect, the application has been made 33 days out of time.

[11] In a Statement and Directions I issued on 17 May 2013, I included the following paragraph:

“[10] It has been agreed that the parties will file written submissions on the question of whether an extension of time should be allowed [in accordance with an agreed timetable]. It was further agreed that I will determine the matter based on the written submissions.”

[12] I have received submissions from both the Applicant and the Respondent in accordance with the directions issued. I also received a signed but unsworn statement from the Applicant.

[13] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. In considering what are exceptional circumstances I have adopted the approach of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 1, where it was stated that;

“In summary, the expression “exceptional circumstances” 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.” 2

Consideration of the factors in section 366(2) of the Act

Subsection 366(2)(a) - the reason for the delay;

[14] The Applicant’s submissions allege that a constructive dismissal took place on 7 February 2013. It is alleged by the Applicant that on that day, the Applicant attended a meeting with Mr Rob Rojewski and Ms Jodie Belz. 3 According to the Applicant’s statement, the meeting was called to “clarify roles” within the Respondent’s office.

[15] It is apparent from the application lodged that the Applicant believes her concerns about an alleged change to her duties and hours of work upon return from maternity leave lead to the alleged constructive dismissal on 7 February 2013. Notwithstanding the Applicant’s claim that there was a constructive dismissal on 7 February 2013, the Applicant in her statement asserts that she attended for work on Friday 8 February 2013 and that she had a further discussion with Rob Rojewski at that time about her concerns with her work duties. 4

[16] On 12 February 2013 the Applicant made a number of calls to the Managing Director of the Respondent, Mr Steve Osborn, to discuss all of her concerns. On Friday 15 February 2013, the Applicant received a phone call from Ms. Jodie Belz. It is alleged by the Applicant that Ms. Belz inquired how the Applicant was feeling. The Applicant stated that she replied that she would feel better with her normal job back. It was alleged by the Applicant that Ms. Belz indicated that Mr Rojewski would probably give the Applicant a call about that issue. 5 On Tuesday 26 February 2013, the Applicant attended a meeting at the Respondent’s premises with Ms Belz and Mr Rojewski. The Applicant’s partner also attended that meeting. The Applicants duties, should she return to work on the following Monday 4 March 2013, were discussed and it is apparent that no satisfactory resolution was reached at the conclusion of that meeting, with the Applicant foreshadowing an application to the Commission.6

[17] The Applicant’s submissions refer to and attach a number of attendances to two medical practitioners. In summary, it is not contested that the Applicant was certified by medical practitioners as unfit for duty for a number of separate but consecutive periods, from Tuesday 12 February 2013 to Wednesday 6 March 2013 inclusive. The Applicant was further certified as unfit for duties from 16 April 2013 to 14 May 2013 inclusive. The Applicant’s representative drew my attention to the comments of a Dr. Duane on a Certificate of Capacity for the Applicant dated 16 April 2013. Those comments were: “Had meeting with Rob Rojeski, HR regarding work duties and return to usual work duties following maternity leave. Ongoing disagreement about what these usual work duties are, needs independent mediator to facilitate resolution, going through Fair Work Australia”.

[18] The Applicant submits that she signed and dated a general protections application on 26 March 2013. The Applicant’s representative claims that the application was faxed to the Fair Work Commission (the Commission) on that same date as well as being sent by post. The copy sent by post was not received at the Commission until a week later, on 2 April 2013. The Applicant’s solicitors were then advised that the Commission had not received a copy of the fax sent on 26 March 2013. A copy of a fax transmission report was filed in support of the Applicant’s claim that there was an attempt to fax the document on 26 March 2013.

[19] The Respondent does not dispute that there was an attempt to fax the application on 26 March 2013. In the circumstances, the Applicant’s representative has taken responsibility for the delay of 7 days from 26 March 2013 until 2 April 2013.

[20] It was submitted that the Applicant delayed lodging the application with the Commission “as she had not fully appreciated that her employment had been constructively terminated” and further that “she was unaware of her legal rights and entitlements”.

[21] It was further submitted that the Applicant attended the Fair Work Ombudsman in Bendigo on 14 February 2013 and was given a Fair Work Ombudsman Workplace Complaint Form. Further, the Applicant claims that that the Fair Work Ombudsman did not advise her that she only had 21 days to lodge an application for the Commission to deal with a general protections dispute. Finally, it is submitted that the Applicant became confused as to the processes involved in lodging a Fair Work Ombudsman complaint form; a General protections application and a Workers Injury Claim form.

[22] I will deal first with the reasons related to the medical condition of the Applicant. The Respondent submits that the listing of dates where she attended a medical centre are not exceptional circumstances as the Applicant was still able to deal with other applications in other jurisdictions. I note that the Applicant did not dispute that applications were made during the relevant period in other jurisdictions. It certainly appears that a Workcover claim was made as is evidenced by the certificate of capacity documents that were filed by the Applicant.

[23] The Applicants submissions state that the Applicant attended the office of Arnold Dallas McPherson Solicitors on 12 February 2013, the first day of her period of being unfit for duty. It is submitted that the Applicant then attended the office of the Fair Work Ombudsman on 14 February 2013. I note that this was during her first period of being declared unfit for duty.. The Applicant attended a meeting with the Respondent on 26 February 2013, also while she was unfit for duties.

[24] The Applicant did not provide any evidence in her statement to support a finding she was unable to make an application during the period from 7 February 2013 to 6 March 2013. The fact that the Applicant was declared unfit for duty for much of that period does not necessarily lead to a conclusion that there was an exceptional circumstance for the delay in lodging her general protections application. This is particularly so where the Applicants own evidence tends to support a finding that the Applicant was capable of attending her solicitors as well as attending the offices of the Fair Work Ombudsman and the Respondents premises personally during her period of incapacity.

[25] There is then the further period from March 6 2013 to March 26 2013. This period does not seem to be covered by a medical certificate. There is no medically based explanation for not lodging the general protections application during this period.

[26] There is then the period of seven days from 26 March 2013 to 2 April 2013. This period of delay is accepted by the Applicants’ representative as their error. Representative error may be grounds for an extension of time. 7 And I find it is so in this matter. I note that one week for the application to arrive by mail seems a long time but note that the Easter Holidays were in the intervening period.

[27] The Applicant submits that she had not “fully appreciated” that her employment had been constructively terminated on the 7th of February. It is not clear on the materials filed as to when the Applicant formed a view that she had been constructively dismissed. The only indication is in her statement where the Applicant refers to the meeting with the Respondent that took place on 26 February 2013. In respect to that meeting, the Applicant states that;

“I asked Rob Rojewski what my duties would be if I was able to return to work on the following Monday, Monday 4 March 2013. Rob Rojewski advised me that my duties would be as per the document headed “Staff meeting to clarify roles within office-7/2/13...I informed Rob Rojewski that Fair Work Australia could determine what I would be returning to as far as my normal duties were concerned if that is the case” 8

[28] Despite indicating an intent to the Respondent to take action in Fair Work Australia, the Applicant did not make, or at least attempt to make, an application until 26 March 2013, some four weeks later. In the circumstances, I am not satisfied that the Applicant’s claim that she had not fully appreciated her employment had been constructively terminated provides an acceptable reason for the delay.

[29] Further, and additional to the claim of not fully appreciating being constructively dismissed, the Applicant referred generally to her lack of awareness of her legal rights and entitlements as part of her reason for delay. A lack of awareness of rights in respect of termination of employment is not of itself exceptional. I refer to the decision of Senior Deputy President Hamberger in Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant 9 where His Honour dealt with an application for extension of time under section 394 of the Act (a provision which also allows for an extension of time if the Commission is satisfied there are exceptional circumstances) it was stated that;

“Any suggestion that ignorance of the law relating to unfair dismissal can constitute “exceptional circumstances” should be treated with caution. For an ordinary lay person to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that [the Applicant in that case] was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional.” 10

[30] Further, a Full Bench of the Commission in Anthony Inguanti v TRUenergy Gas Storage Pty Ltd 11also considered section 394 of the Act and stated;

“A lack of knowledge about legal rights has generally not been regarded by [the Commission] as sufficient for the tribunal to be satisfied as to exceptional circumstances for the purposes of s.394(3) of the FW Act” 12

[31] Finally, I note that there is no evidence provided by the Applicant to support the submission made that the Fair Work Ombudsman did not advise her of the 21 day time period to lodge a general protections claim. It is a claim made by submission, and not substantiated in any way. I also note that the Applicant had sought legal advice prior to her attendance at the Fair Work Ombudsman.

[32] Having considered all of the circumstances, I am satisfied that there are reasons for the delay in respect of the period from 26 March 2013 to 2 April 2013 as a result of representative error which constitute exceptional circumstances. However, I am not satisfied that there is an explanation for the earlier delay of 26 days which would constitute exceptional circumstances.

Subsection 366(b) - any action taken by the person to dispute the dismissal;

[33] The Applicant claims that from the date of her return to work from maternity leave (Monday 4 February 2013) she disputed the nature of the duties and responsibilities she was given as they were less than her pre maternity leave duties and responsibilities. Numerous email exchanges are copied into the Applicant’s submissions and referred to as evidence in support of that submission.

[34] The Respondent submits that at no point prior to receiving the Form F8 Applicationwas there any claim or dispute raised by either the Applicant or her representative over the alleged termination and that all correspondence between the parties was related to a WorkCover claim. Further, the Respondent submits that the actions of providing certificates of capacity are not the actions of a person who believes that they have been terminated. In reply, the Applicant claimed workers and employers are required to meet their obligations under the Accident Compensation Act whether the employment relationship has ended or not.

[35] It is apparent that the emails referred to by the Applicant are directed at the dispute over her duties and responsibilities since returning from maternity leave. There is no evidence that the Applicant was disputing a “dismissal” during that time. I have taken into consideration that the Applicant claims to have only become aware she was constructively dismissed some considerable time after the dismissal took place. Overall, I do not consider the actions of the Applicant to amount to actions to dispute the dismissal within the meaning of this part of the legislation. Rather, the applicant was disputing the duties she was to perform having returned from maternity leave. This factor is neutral.

Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay);

[36] The Applicant claims that there is no prejudice to the Respondent in that the Applicant has, since Monday 4 February 2013, disputed that the duties she was to perform and the responsibilities she had from Monday 4 February 2013 were her pre maternity leave duties and responsibilities, and that from Monday 4 February 2013 the Applicant had effectively been demoted.

[37] The Respondent submits that they are prejudiced to the extent that they have been required to expend time and resources defending against a claim that has been filed due to not receiving a satisfactory outcome in another jurisdiction.

[38] The employer must produce evidence to demonstrate prejudice. 13 There is insufficient evidence to support the employers contention they are prejudiced. In the circumstances I am not satisfied that there is prejudice to the employer.

Subsection 366(d) - merits of the application;

[39] In the Form F8 Application, the Applicant refers to the claimed constructive termination. There is no detail provided as to the specific contraventions that are alleged. It further states that if the Applicant’s employment was not constructively terminated, “my employer has taken adverse action against me because I exercised the workplace right to take maternity leave”.

[40] In the Applicant’s written submissions, there is a one sentence reference to the merits referring me to the statement of Ms. Lobb. The statement of Ms. Lobb provides an enormous amount of detail as to the duties she claims to have performed prior to going on maternity leave. It then sets out the various conversations that took place with the Respondent regarding her duties of employment upon return from maternity leave. It is clear that the Applicant considers the position she returned to is not the one she left.

[41] The Respondent submits that the Applicant has in fact been returned to her pre maternity leave duties and conditions of employment. The Respondent also claims that; in the five days the Applicant was in the workplace, she could not have possibly had time to conduct or perform the 108 duties she listed in her statement as part of her pre maternity leave duties; that the Respondent’s payroll system had been updated, that the Applicant would require training and that there was little time to undertake that training; that the application has no merit as there has been no termination and that the respondent believes this application is a result of the Applicant not receiving a desired outcome in another jurisdiction. The Respondent also claims that the Applicant was involved in seeking to work as an independent contractor upon her return from maternity leave. The refusal of the Respondent to enter into this arrangement is said by the Respondent to be the “real reason” for the Applicants claim. The Applicant in her reply submissions does not dispute that there was a request to work as an independent contractor but that this was related to the Respondent’s decision to reduce her number of hours.

[42] If it is held true that the Applicant has not in fact been dismissed, there is clearly no merit to the application as it would be without jurisdiction. However, the facts on that matter are in contest. In effect the Applicant argues that she was constructively dismissed as a result of the substantial change in her duties and hours of work upon returning from maternity leave. The Respondent disputes the various claims and contests the facts asserted. The case will turn on key questions of fact that will need to be determined in a Court. Overall, the question of merit is a neutral consideration in determining whether to extend time for lodging the application.

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

[43] The Applicant is unaware of other persons in a like position.

Conclusion

[44] Having considered the submissions and materials provided by the parties, I do not consider there to be exceptional circumstances for the first period of delay of 26 days in filing the application. The Applicant did dispute the terms of her post maternity leave employment. However, there is no evidence that the Applicant disputed the dismissal until this application was made. There is no prejudice to the Respondent with allowing the extension of time application. The question of merit is a neutral consideration. Having considered all of the factors to which I am to have regard, the only consideration weighing in favour of granting an extension is that there is no prejudice to the Respondent. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 14 Overall, I do not consider that there are exceptional circumstances that would warrant granting an extension of time. The application is therefore dismissed.

COMMISSIONER

 1 [2007] AIRC 848

 2   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848, [10]

 3   Statement of Paula Alison Lobb, dated 30 May 2013, [18]

 4   Ibid, [19]

 5   Ibid, [21]

 6   Ibid, [22]

 7   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420

 8   Statement of Paula Alison Lobb, dated 30 May 2013, [22]

 9   [2010] FWA 8895

 10   Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant, [2010] FWA 8895, [14]

 11   [2011] FWAFB 6512

 12   Anthony Inguanti v TRUenergy Gas Storage Pty Ltd, [2011] FWAFB 6512, [10]

 13   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 566

 14   Brodie-Hanns v MTV Publishing Ltd (1995) IR 298, 300

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