Pitrau v Barrick Mining Services Pty Ltd

[2012] FWA 8363

[2012] FWA 8363

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Vanessa Pitrau
v
Barrick Mining Services Pty Ltd
(C2012/3295)

DEPUTY PRESIDENT MCCARTHY PERTH, 27 SEPTEMBER 2012

Section 365 application lodged after time allowed - further time allowed.

Background

[1] This matter concerns an application lodged by Ms Vanessa Pitrau (the Applicant) for Fair Work Australia (FWA) to deal with a General Protections Dispute (the Application) pursuant to s.365 of the Fair Work Act 2009 (the FW Act). The application was lodged on 30 March 2012. The Applicant asserts that Barrick Mining Services Pty Ltd (the Respondent) terminated the Applicant’s employment in contravention of s.352 of the FW Act. The termination took effect on 2 December 2010. The Application is therefore outside the 60 day time limit prescribed by s.366(1)(a) of the FW Act by a very lengthy period.

[2] The Applicant had previously erroneously lodged an application pursuant to s.773 of the FW Act (the s.773 Application). The s.773 Application was lodged within the allowable time provided. A conciliation conference was held on 28 February 2011. A certificate was issued on 9 March 2011. On 23 March 2011, the Applicant subsequently made application for the matter to be dealt with by the Federal Magistrates Court of Australia.

[3] On 23 March 2012, the Federal Magistrates Court issued a decision dismissing the s.773 Application. 1 The Magistrate found that the unlawful termination application which was made under s.773 of the FW Act was therefore never an application which Ms Pitrau was able to make. Essentially, this finding was based on the fact that the Respondent was a National System Employer, therefore there could be no s.773 application that was capable of being made. The Magistrate also decided that the application could not be amended because “there is not an efficacious proceeding on foot that the proposed amendment can enliven; and even if Ms Pitrau’s application were to be amended as sought, it would be an exercise in futility, for without a Section 369 Certificate the Court would have no jurisdiction to hear the amended application”.2

[4] As a consequence of the Application being lodged outside the 60 time limit, the Applicant seeks FWA to allow a further period. The Respondent objects to a further period being allowed.

[5] The Applicant was represented by Mr R Hooker of Counsel, instructed by Squire Sanders. The Respondent was represented by Ms K Reid of Allion Legal.

The Legislation

[6] The FW Act provides that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1 General Protections, then that person may apply to FWA for FWA to deal with the dispute. 3 Such an application must be made within 60 days after the dismissal took effect or within such further period as FWA allows.4

[7] FWA may allow a period longer than 60 days if FWA is satisfied that there are exceptional circumstances. 5 In considering whether it is satisfied that there are exceptional circumstances, FWA must take into account:

1. the reason for the delay; and

2. any action taken by the person to dispute the dismissal; and

3. prejudice to the employer (including prejudice caused by the delay); and

4. the merits of the application; and

5. fairness as between the person and other persons in a like position.

[8] The Respondent submitted that the matters that must be taken into account were intended to be an exhaustive list of factors. I agree with the Respondent that there are no other factors, other than those prescribed, that I can take into account. 6

[9] I am therefore obliged, in relation to each of these factors, to evaluate them and give them due weight. 7

[10] I am also obliged in performing functions or exercising powers to take into account the Objects of the FW Act and the Objects of Part 3-1 of the FW Act. 8 The Objects of the FW Act are contained in s.3, viz; “to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”. The means, or manner of achieving that Object, is prescribed through paragraphs (a) to (g) of that Object. The paragraph that would appear to be most relevant here is by the FW Act “protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms”.9

[11] The Object of Part 3-1 of the FW Act is provided for in s.336. The Object there has been succinctly stated in the following way “the important but simple feature of Part 3-1 of the FW Act, is that employees are entitled to be protected from adverse action which breaches their workplace rights, freedom of association, lawful industrial activities and other protections, including discrimination”. 10

[12] The Object of Part 3-1 General Protections can be contrasted to those of Part 3-2 Unfair Dismissal. There, the Object includes balancing the needs of business and the needs of employees and is intended to be exercised in a way that ensures that a “fair go all round” is accorded to both the employer and employee concerned. 11 The differences are important. The former is related to the protection of rights, whereas the latter is related to the protection against unfairness by the balancing of needs.

[13] As to what are exceptional circumstances, the consideration is whether “owing to, or making allowances for” the issues required to be considered, when considered together and as a whole, cause me to be satisfied that the circumstances are exceptional. 12 ] at para 13.

Consideration

The reason for the delay

[14] The proceedings relating to the s.773 Application were extensive and prolonged. The important dates and events were as follows:

• the Applicant was dismissed on 2 December 2010;



• the s.773 Application was lodged on 31 January 2011;



• the s.776 conference was conducted on 28 February 2011;



• the s.777 Certificate was issued on 9 March 2011;



• the s.539 unlawful termination Court Application was lodged on 23 March 2011;



• the Court Application Directions Hearing occurred on 15 April 2011;



• the Respondent lodged a Response to the Court Application on 28 April 2011;



• the Applicant sought leave to amend application on 4 July 2011;



• the Magistrates Court Hearing on Summary Dismissal and leave to amend applications, occurred on 5 August 2011;



• the judgement was issued dismissing the application and leave to amend on 23 March 2012;



• the s.365 Application was lodged on 30 March 2012;



• the Respondent’s Form 8A was lodged on 11 April 2012;



• a Conference was conducted on 19 April 2012; and



• a Hearing was conducted on 1 June 2012.

[15] There are three limbs to the Applicant’s submissions regarding the reasons for the delay. Firstly, they submit that there was representative error. Secondly, they state that there was a delay arising from legal proceedings. Thirdly, they argue that there was a delay arising from institutional error.

[16] It is not disputed that there was representational error through the lodging of a s.773 rather than lodging a s.365 application. The Applicant engaged Talbot Oliver to act for her prior to the Application being lodged. She had held discussions with Talbot Oliver a few days after the dismissal on 7 December 2010. Ms Leedman, a Senior lawyer with Talbot Olivier who had carriage of the matter, evidenced that she was not aware of the error until the Court Application Directions Hearing on 15 April 2010. The Respondent lodged a formal response to the Court Application on 28 April seeking that the claim be dismissed on the grounds that it had no reasonable prospect of success, being an application that was prohibited from being lodged.

[17] The Respondent had put the Applicant on notice at the Court Application Directions Conference on 15 April 2011. They argue that at that juncture, it was incumbent on the Applicant to correct the error by staying or discontinuing those court proceedings and lodging a fresh application with FWA. Ms Leedman evidenced that at that juncture, she was not aware that the error would be fatal to the Court Application. In support of that view, she asserts that the Federal Magistrate commented that he may be able to provide leave to amend the application if such an application was made. Ms Leedman says that she made an assessment of whether to proceed based on the Federal Magistrates indication.

[18] A further error was made by the seeking of an amendment to the subsequent Court Application circumstances as there is no capacity for the Court to make such an amendment. Whether the further error was one of judgment or of a representational nature, or both, is arguable but I approached it as though it were a representational error.

[19] The institutional error asserted to have occurred is said to arise from FWA issuing a Certificate pursuant to s.777. There is no evidence that either party raised that issue in any proceedings before the Certificate was issued.

[20] I find that the reason for the delay was representational error; the error was both an error of type of application lodged and one of judgement in not taking appropriate steps to correct the error. It was also a representational error not to seek at least a stay of the Court proceedings.

Any action taken by the person to dispute the dismissal

[21] The Applicant sought advice almost immediately after the dismissal to dispute the termination. Furthermore, the Applicant evidenced that she kept in contact with Talbot Olivier throughout the period leading up to the Court hearing and after it had been held. She also remained in contact with her lawyers to ascertain the progress and status of her complaint.

[22] I find that the Applicant did everything that could reasonably be expected of her to pursue her complaint and that she did so in an expeditious manner. I do not agree with the Respondent that the Applicant did not take reasonable steps to make sure her claim was pursued properly.

Prejudice to the employer (including prejudice caused by the delay)

[23] The Respondent will undoubtedly be prejudiced if I allow the Application. I accept that the Respondent has already been prejudiced by costs already incurred in defending the matter before the Magistrates Court. Indeed, whilst they have sought a costs order, that order apparently is being contested.

[24] Other prejudices I believe that the Respondent will suffer should the application be allowed, include the nature of the evidence they can produce as a consequence of the lapse of time and the costs incurred in further defence of the matter.

[25] I accept and agree with the contention of the Respondent that prejudice already suffered, and further prejudice, is strongly against the granting of an extension of time.

The merits of the application

[26] By operation of s.366(2)(d), it is obligatory for me to examine the merits of the Application. In this matter there was evidence through the lodging of witness statements by the Applicant, Ms Leedman and three employees of the Respondent.

[27] The Applicant contends that she was dismissed because of a temporary absence from work because of illness or injury of a kind prescribed by the Regulations in contravention of section 352 of the FW Act. She argued that the threshold test of s.352 requires the employee to be, at the time of the dismissal, temporarily absent for a prescribed reason. They say that on the Applicant’s own version of the facts that the Applicant was not temporarily absent for the prescribed reason at the time of the dismissal, and therefore does not meet the threshold requirement of s.352. Whether the Applicant meets the threshold test or not is one of fact and of statutory construction. Suffice to say that the Applicant disagrees with the interpretation that the Respondent places on the requirements of s.352.

[28] The events leading up to the dismissal by the Applicant’s own version of events is as follows:

• The Applicant commenced employment as a casual on 19 July 2010;



• The Applicant was offered full time employment on 18 October 2010;



• The Applicant returned to Perth on 25 October 2010;



• On 28 October 2010, the Applicant felt pain in ear and informed Respondent that she could not fly back on the following day as scheduled and that the doctor’s appointment had been arranged;



• On 29 October 2010, the Applicant attended the doctor and was provided with a medical certificate for an ear infection;



• On 2 November 2010, the Applicant returned to site;



• On 5 November 2010, the Applicant left site and returned to Perth;



• On 11 November 2010, following a request from the Applicant’s sister, she agreed to look after her five year old nephew and to drive her sister and her seven year old niece, who was ill, to the hospital;



• On 12 November 2010, the Applicant rang the Respondent at 4:30 to advise she could not make the flight back to site that morning;



• On 15 November 2010, the Applicant returned to site;



• On 19 November 2010, the Applicant returned to Perth from site;



• The Applicant attended the doctors for pain in her ear on 22, 24 and 25 November 2010;



• On 26 November 2010, the Respondent organised an appointment with a doctor for Monday, 29 November and advised her not to return to work until after that appointment;



• On 26 November 2010, the Applicant was prescribed medication by the doctor and advised she could fly;



• On 26 November 2010, the Applicant did not fly back to site as scheduled;



• On 29 November 2010, the Applicant attended the doctor’s appointment and was advised she could return to work. She was prescribed a nasal spray to use;



• On 2 December 2010, the Applicant attended a meeting with the Respondent in the Perth office at the Respondent’s request. Later that day, the Respondent terminated the Applicant’s employment; and



• The Applicant was dismissed on 2 December 2010.

[29] Ms Reid asserts that the absence on 12 November was not due to illness or injury. She asserts that what the Applicant was actually doing was child minding for her sister. She also asserts that the Applicant was not entitled to take the leave she applied for on those occasions. There is a substantial basis for Ms Reid’s assertions. It would seem there is a strong basis to be able to establish that the Applicant was not unfit for work at all on 12 November. There is a medical certificate stating that “Vanessa Pitrau will be unfit for school (sic)from Friday, 26 November to Monday 29 November 2010”, however there is no evidence that the Applicant provided the certificate to the Respondent as required by the Fair Work Regulations 2009 (the Regulations).

[30] The Applicant decided to stop using the nasal spray prescribed for her. As it eventuated, the specialist the Respondent arranged the Applicant to see prescribed exactly the same nasal spray she had earlier been prescribed. The Respondent argues that this shows that the Applicant did not take proper steps to ensure she would return to work as soon as possible.

[31] The Respondent’s contention from the Applicant’s evidence is that it supports their argument that she was dismissed for not being truthful about her absences, and they were not confident she was managing her fitness for work properly. They also submit that the Applicant does not meet the requirements to be able to make the claim she has as she was not temporarily absent from work due to illness or injury and that even if she was, she did not fulfil the requirements of the Regulations to provide a medical certificate to that effect.

[32] The Respondent argued that the merits of the case do not provide any compelling reason to grant an extension of time. Mr Hooker makes the point that the facts taken in full context will be the subject of contest should it proceed.

[33] There is considerable force in the Respondent’s argument. Indeed, I consider that the Applicant has a case which might be arguable but it is a very weak argument. The merits of the case weigh strongly against extending the time.

Fairness as between the person and other persons in a like position

[34] It seems that the intention of this consideration is to try and ensure consistency in FWA in dealing with matters with similar circumstances. 13

[35] The Applicant referred me to the decision of Senior Deputy President Acton to extend time where an application was wrongly lodged pursuant s.773 rather than s.365. 14 Her Honour allowed the application. The Respondent submitted that the case was distinguishable as there was no evidence that the application to extend time was objected to. Indeed, the transcript of the proceedings indicates that the Respondent to those proceedings did not support the application, nor did they object to it.15 The Respondent here says it is also distinguishable because in that matter the Court application was stayed. It is clear here that this is the action that the Applicant should have taken.

[36] In that matter, the Applicants were advised in August 2011 of the error. The matter proceeded to a Directions Hearing in the Federal Court of Australia in October 2011 before His Honour Mr Justice North. Apparently, His Honour directed the Applicant to lodge a new Application with FWA pursuant to s.365 of the FW Act in order to cure the procedural irregularity. 16

[37] The Respondent also referred to the decision of Commissioner Cloghan in Raylene Reeve v Ramsay Health Care Australia Limited 17and his observation that the tribunal “needs to be concerned with a comparison with all those who seek an extension when the standard timeline has not been met”. With respect, I disagree with that proposition. In my view, “persons in a like position” is not a reference to all persons who have lodged an application out of time. Rather, it is a requirement to take into account matters where there have been the same, or similar, characteristics and/or circumstances. The aim being to have persons in similar circumstances treated similarly and for the decisions of FWA to be consistent.

[38] The Applicant also referred me to another decision of Commissioner Cloghan, namely; CEPU v Active Tree Services Pty Ltd. 18 The Commissioner there refused to allow a further period. There, the Applicant’s initial Court proceedings under s.365 were summarily dismissed due to a jurisdictional issue, and the Applicant sought an extension of time to bring a fresh application in FWA.

[39] That decision was appealed and the appeal was dismissed. The Full Bench made the observation in relation to that finding that:

“When a discretion is exercised different decision-makers may attach different weight to different factors and ultimately may reach different conclusions. It is not our task on appeal to determine if we would have made similar findings, attached similar weight to the factors or reached the same conclusion”. 19

[40] I regard the circumstances in the matter before Senior Deputy President Acton to be similar to those here.

Finding

[41] This matter appears to me to be one where representative error favours a granting of the extension, yet the merits of the Application weigh against an extension. It also involves the actions taken by the Applicant weighing in favour of the Application being allowed to proceed, but the prejudice to the Respondent weighing against it proceeding. The fairness between the Applicant and other persons in a like position favour the granting of the extension, however I have not given this consideration as much weight as the other factors.

[42] This matter is to be one that is finely balanced. It is a matter involving the protection of rights, and that aspect favours the allowing of the extension. I am satisfied that there are exceptional circumstances. Therefore, I will allow the further period beyond the 60 days, that period being from the period until the Application was lodged.

DEPUTY PRESIDENT

Appearances:

Mr R Hooker of Counsel for the Applicant.

Ms K Reid for the Respondent.

Hearing details:

2012.

Perth:

June, 1.

 1   Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186.

 2   ibid para 53, references deleted.

 3 s.365.

 4   s.366(1).

 5   s.366(2).

 6   See Fair Work Australia v Schweppes Australia Pty Ltd; United Voice - Victoria Branch [2012] FWAFB 7858 at para 30.

 7   See Nestle Australia Ltd v Federal Commissioner of Taxation: as cited in Fair Work Australia v Schweppes Australia Pty Ltd; United Voice - Victoria Branch [2012] FWAFB 7858.

 8   s.578.

 9   s.3(e).

 10   [2011] FWAFB 8446.

 11   s.381.

 12   ^{[2011] FWAFB 975}

 13   See Mr Markos Wilson v Woolworths[2010] FWA 2480, paras 24-29.

 14   Ms Susan Newman and East Yarra Friendly Society Pty Limited T/A Chemist Warehouse Geelong; Rajan Grover T/A Chemist Warehouse Geelong (Newman v East Yarra).

 15   Newman v East Yarra, Transcript of Proceedings on 18 November 2011.

 16   Newman v East Yarra, Submissions of on behalf of Applicant.

 17   [2012] FWA 3141.

 18   [2011] FWA 5418.

 19   ibid para 12.

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