Peng Lee v The Trustee for Januel Trust
[2024] FWC 1408
•14 JUNE 2024
| [2024] FWC 1408 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Peng Lee
v
The Trustee For Januel Trust
(C2024/2304)
| COMMISSIONER CONNOLLY | MELBOURNE, 14 JUNE 2024 |
Application to deal with contraventions involving dismissal – reqsuest for an extension of time – extension refused – application dismissed.
Introduction
On 9 April 2024, Ms Peng Lee (the Applicant) lodged a general protections application against The Trustee For Januel Trust (the Respondent) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 17 March 2024, she was dismissed by the Respondent in contravention of the general protections provisions of the Act.
On 22 April 2024, the Respondent filed a Form F8A Response and raised a jurisdictional objection, asserting that Ms Lee was not dismissed. However, this was later withdrawn by the Respondent, who confirmed via telephone to staff of the Commission that the Applicant was in fact dismissed.
Ms Lee’s F8 application indicated it was lodged within 21 days of the dismissal taking effect. However, given that the dismissal is stated to have taken affect on 17 March, and the application being lodged on 9 April 2024, the application appears to be lodged 2 days out of time.
The Act provides that an application under the general protections provisions, involving dismissal, pursuant to s.365 of the Act must be made 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]
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[3] I am required to determine the jurisdictional objection, out of time, before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provision.
On 3 May 2024, I issued directions and advised that the extension of time issue would be considered at a video Hearing on 23 May 2024. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.
Compliance with Directions
Pursuant to the Directions, issued on 3 May 2024, the Applicant was directed to file her submissions in relation to the extension of time issue requiring her to address the factors outlined in s.366(2) of the Fair Work Act 2009 in relation to whether there are exceptional circumstances. The Applicant did not comply with these directions.
At 12:40pm on 14 May 2024, correspondence was sent to the Applicant from my Chambers noting that she had not complied with the Directions and advised her that if the Directions were not followed and no submissions were filed by close of business that same day, the matter may be listed for a non-compliance Hearing. The Applicant was also invited to discontinue her matter if she did not want to pursue her application. Attempts were also made to contact the Applicant via telephone.
At 3:13pm on the same day, the Applicant called my Chambers and advised that she was at work and could not pick up calls from my Chambers. The Applicant was advised of the correspondence sent to her email in regard to non-compliance with Directions. She advised that she did not receive this email. She was advised that Directions were issued on 3 May 2024 and to check her junk or spam folder. The Applicant asked for an extension to file submissions and my Chambers advised her that this request would need to be made in writing to the Commissioner, with the Respondent copied.
At 14:02pm on 13 May 2024, the Applicant sent an email to Chambers in the following terms:
“I will comply of the following AND intend to file submission.
The application has been listed for a Video Hearing at 10:00AM (VIC TIME) on Thursday, 23 May 2024 regarding the extension of time issue only. A Notice of Listing is attached. The hearing will be recorded.
Regards
PENG, LEE”
At 14:18 on the same day, the Applicant sent a voicemail to my Chambers advised that she would like to pursue her matter and she is ready for the Hearing on 23 May 2024.
No submissions or material was filed by the Applicant.
On 15 May 2024, my Chambers called the Applicant advising that she had still not filed any submissions or evidence in accordance with the Directions and the matter may be listed for non-compliance. She was advised to re-read the Directions document and advise Chambers when her submissions would be filed. The Applicant stated she would file that day.
At 17:36pm the same day, the Applicant sent an email to Chambers and filed the following documents:
· Notice of Listing for the Hearing on 23 May 2024,
· 2 confirmation of lodgement letters from the Commission,
· Letter issued by the Commission advising that her application is out of time,
· The Applicant’s original F8 application.
No documents made any reference to her submissions on the extension of time issue or any material addressing this objection.
On 21 May 2024, the Applicant sent an email to Chambers making submissions that were largely unrelated to the extension of time issue and focused more on the merits of the application and her views on the submissions made in the Respondent’s F8A employer response form.
To this date, the Applicant has not filed any submissions addressing the factors I am required to consider in determining whether or not to grant an extension of time to her application.
Hearing
On 22 May 2024, a Digital Court Book compiled by the Commission was distributed to the parties.
At 11:47am on the same day, the Respondent sent the following email to my Chambers:
“Dear Chambers,
Thank you for your email.
I will be attending the video call tomorrow while having to perform my professional duties due to COVID-19 having ripped through both of our businesses and left us without any staffing options. Please let me know if this is suitable of if a later date would be more appropriate. I remain available to discuss any alternative solutions.Regards Sam Putallaz”
At 17:42pm on the same day, the Applicant sent the following email to my Chambers:
“Dear Chambers
It’s there a chance we can postpone the video call? Due to same reason COVID issues, I am on call for a job from 930am to 1130am.
Any inconvenience caused is regretted.
Regards
Peng, LEE”
At 9:38am on 23 May 2024, my Chambers advised the parties that the adjournment request was refused, and the Hearing would proceed as scheduled.
Between 9:55am and 10:05am on the same day, my Chambers made several attempts to contact both the Applicant and the Respondent as they did not appear at the Hearing at the scheduled time, being 10:00am. The Respondent called my Chambers and advised that he would not be attending the Hearing as he was currently at work. The Applicant was unreachable.
At 10:04am on the same day, the parties were sent the following email by my Chambers:
“Dear parties,
RE: C2024/2304 - Peng Lee v The Trustee For Januel Trust
I refer to the matter above and Hearing listed for 10:00am (VIC Time) TODAY, 23 May 2024.
I have attempted to contact you both on your mobile phones multiple times and have not been successful.
If you do not attend by 10:05 AM (VIC Time), the matter will be determined in your absence…”
The Hearing did not proceed as no parties were in attendance.
Applicable Law
Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4]
I have considered the provisions of s.366 of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[5] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary”. We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[13] 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
Section 366(2) of the Act requires the Commission to take account the matters set out in s.366(2)(a)-(f).
However, the Applicant has made no effort to make any submissions in relation to these factors, nor is there anything before me in the F8 form or the Applicant’s emails to consider with regard to these factors in determining a request for an extension of time. Therefore, I consider this to weigh against the Applicant in whether there are exceptional circumstances in granting an extension of time.
Having taken this into account, I have not been persuaded that, on balance, there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which a general protections application may be lodged by Ms Lee.
Additionally, it is also open for me to dismiss the application pursuant to section 587 of the Act for want of prosecution.
s.587 of the Act provides:
“Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
In McLeod v Kulgera Trading Company Pty Ltd,[6] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.
In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute her case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[7] warrant the dismissal of this application.
ORDER
An Order[8] reflecting this decision and dismissing the application will be issued concurrently to this decision.
COMMISSIONER
[1] Fair Work Act 2009 (Cth) s394(2)(a). Note that the 21 days for lodgement 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] Fair Work Act 2009 (Cth) s394(3).
[3] [2020] FCAFC 152.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[5] [2011] FWAFB 975.
[6][2014] FWC 2112.
[7] Ibid at [10].
[8] PR775458.
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