Riley v Australian Bullion Exchange Limited

[2016] FWC 1295

[2016] FWC 1295

DECISION

Fair Work Act 2009

s.365—General protections

Marina Riley

v

Australian Bullion Exchange Limited T/A Allocated Bullion Exchange

(C2015/8232)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 29 FEBRUARY 2016

Application to deal with contraventions involving dismissal - extension of time - no

exceptional circumstances warranting allowing a further period for the making of an

application - application dismissed.

[1]        Mrs Marina Riley (the Applicant) made an application which was received by the Fair

Work Commission (the Commission) on 21 December 2015 under s.365 of the Fair Work Act

2009 (the Act) alleging that she had been dismissed by Australian Bullion Exchange Limited

T/A Allocated Bullion Exchange (the Respondent) on 23 October 2015 in contravention of

the general protections provisions in the Act.

[2]        As the application was lodged thirty eight days outside the statutory timeframe for

lodgement set out in s.366(1) of the Act, the Commission issued Directions on 6 January 2016

requiring the parties to file an outline of submissions and any evidentiary material they

intended to rely on regarding the extension of time issue.

[3]        The extension of time issue was the subject of a telephone hearing on 4 February

2016. At the telephone hearing, Mrs Riley appeared on her own behalf, while Mr Dan Ryan

and Mr Ben Brudo both appeared for the Respondent.

[4]        For the reasons set out below, I have concluded that I am not satisfied that there were

exceptional circumstances warranting the granting of a further period for the making of an

application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5]        Mrs Riley commenced employment with the Respondent on 17 August 2015 as an

Administrative Assistant. In her application, Mrs Riley stated that she felt her dismissal

breached anti-discrimination laws as it was based on her social background (Mrs Riley is of

Swiss origin), involved unequal treatment in regard to induction processes and work

performance reviews and because her role changed when compared to her duties as outlined

in her employment agreement. On the latter issue, Mrs Riley stated that according to her job

description, her main duties included data entry for accounts receivable/payable, maintaining

office equipment, general office tasks and answering phone calls (which Mrs Riley contends
[2016] FWC 1295

was a minor part of her duties). By way of background, Mrs Riley’s Employment Agreement,

which was attached to her application, provides that:

“During your employment, you will be expected to:

a. to assist the ABX Group’s operations team to develop Internal systems and

procedures in order to improve structure and efficiency;

b. assist with all new staff inductions, transitions and terminations where

appropriately authorised by the Head of Operations, CTO, and/or CEO;

c. act as the second point of contact (from the Office Manager) to liaise between

staff in corporate travel management firm(s) to arrange all travel, international

and domestic;

d.	maintain office inventory and all associated supplier relations;
e.	manage accounts payable on an ongoing basis;
f.	assist the Office Manager with other administrative duties;

g. …”

[6]        Further, Mrs Riley contended in her application that she was verbally advised that she

was dismissed because her “English speaking skills were not good enough and that [she] had

difficulties to make phone calls.” Mrs Riley contends that the Respondent had indicated to her

that her role would change in future to involve more time on the telephone as a result of the

company “going public” and that because of her English language skills the Respondent felt

that this was grounds to end Mrs Riley’s employment during her probationary period.

[7]        Mrs Riley was given written notice of her termination on 7 October 2015, with her

dismissal taking effect on 23 October 2015. The termination letter states “ABX like to thank

you for the time and effort you have diligently put in over the last few weeks. Unfortunately,

we will not be able to continue your employment …”

[8]        As noted above, Mrs Riley’s application was received by the Commission on

21 December 2015, thirty eight days outside the statutory timeframe specified in s.366(1)(a)

of the Act. In her application, Mrs Riley contends that she was dismissed in contravention of

s.351 of the Act which deals with discrimination.

The Relevant Legislation

[9]        Section 366 of the Act provides:

“366 Time for application

366(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).

366(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

[2016] FWC 1295

(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.”

Whether to allow a further period for the application to be made

[10]      In deciding whether to allow a further period for an application to be made the

Commission must take into account the matters set out in s.366(2) above. I will deal with each

of those matters separately.

(a) The reason for the delay

[11]      In her application Mrs Riley stated that following her dismissal she wanted to speak

with a pro bono lawyer in the first instance but as she was not a permanent Australian resident

until 14 November 2015 this was not easy. Mrs Riley further stated in her application that she

tried to see different organisations that could provide a cheap lawyer and that this took quite a

while, adding that it was only in the week before her application was lodged that she found a

social worker to help her prepare her application.

[12]      Mrs Riley did not provide any written submissions. However she did provide a letter

from her psychologist, Mrs Ana Borges. The letter which is dated 10 January 2016 states,

inter alia, that:

“… I write here as Ms Riles’ [Mrs Riley] psychologist. She was referred to my care June

last year in order to treat depressive symptoms that resulted from her relationship break

down and experience of domestic violence in this relationship. Her situation was

aggravated by her immigration status at the time (temporary residence with permanent

visa pending decision).

Ms Riles was under overwhelming stress and she was required to focus on looking for

permanent accommodation and her visa process while receiving mental health support …

It is my profession [sic] opinion that Ms. Riles was unable to engage in a work right’s

process due to the issues listed above but is now free to focus on this issue. I ask you to

take such circumstances into consideration when making your decision.”

[13]      At the telephone hearing, Mrs Riley relied on a number of reasons for the delay in

lodging her application. These included that she had separated from her husband and had to

go through the associated court process which was her main priority and that she was seeking

a permanent residency and was actively engaged with the Department of Immigration and

Border Protection in September, October and November 2015 regarding her application for

residency. Mrs Riley further submitted that she was granted permanent residency on

14 November 2015 and that in late November she discussed her dismissal with her therapist

who encouraged her to take the matter further. Mrs Riley submitted that as a result, she started

to formalise her application by searching the internet and also seeking out a social worker to

assist her in preparing her application. Mrs Riley also submitted that while she was aware that

she may have that right to take action to dispute her dismissal, she was not aware of the

21 day timeframe for making a general protections application. In addition, Mrs Riley stated
[2016] FWC 1295

that disputing her dismissal was not her main priority in the period immediately following her

dismissal, describing her main priority as being securing permanent residency.

[14]      The Respondent submitted that it was not clear from the letter from Mrs Riley’s

psychologist why her ongoing medical and personal condition enabled her to engage in full-

time work but did not enable her to meet the deadlines associated with lodging a general

protections application. The Respondent also submitted that it interpreted the letter as

suggesting that Mrs Riley’s personal and medical issues were worse in June 2015 but had

been improving since then and that it did not discern in the letter any clear evidence of

Mrs Riley’s medical condition deteriorating since her employment relationship was

terminated.

[15]      Mrs Riley has clearly gone through a difficult period over the last eight months. I note

that Mrs Riley has been receiving medical treatment from her psychologist since June 2015

and that this period includes the entire period of her employment with the Respondent. There

is no explanation provided in Mrs Borges’ letter as to why Mrs Riley was capable of

undertaking full-time work yet not able to prepare her general protections application as a

result of her medical condition. Further, I note that Mrs Riley was also pursuing permanent

residency over the period September to November 2015. The fact that she was able to do that

as well as sustain full-time employment for much of this period despite her medical condition

and personal issues reduces the weight that can be attached to the letter from Mrs Riley’s

psychologist.

[16]      While I appreciate that Mrs Riley was understandably very focused on securing

permanent residency over the period September to November 2015, it is noteworthy that she

was granted permanent residency on 14 November 2015 yet her application was not lodged

with the Commission until 21 December 2015 some 37 days later. Further, Mrs Riley

submitted that it was only after her psychologist encouraged her in late November 2015 to

pursue her dismissal further that she started to search the internet and seek assistance to

prepare her application.

[17]      As determined by the Full Bench in Cheval Properties Pty Ltd t/as Penrith Hotel

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Motel v Smithers (Cheval), an employee needs to provide a credible reason for the whole of

the period that the application was delayed. Based on the material before the Commission, I

am not satisfied that Mrs Riley has provided a credible reason for the whole period of the

delay.

[18]      Finally, with regard to Mrs Riley’s submission that she was not aware of the 21 day

timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v

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Blue Star Group Pty Ltd (Nulty)	a Full Bench of the then Fair Work Australia determined
that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional

circumstance ...”

[19]      The above analysis, together with the decisions in Cheval and Nulty, does not support

a finding of the existence of exceptional circumstances.

[2016] FWC 1295

(b) Any action taken by the person to dispute the dismissal

[20]      Mrs Riley submitted that in a conference with the Respondent regarding her dismissal

she indicated that she may take the matter further with the Commission, adding that as

mentioned above she was not aware of the 21 day timeframe and that securing permanent

residency was her main priority in the period following her dismissal.

[21]      The Respondent submitted that Mrs Riley may have mentioned that she was

contemplating action to dispute her dismissal in a conference between the parties. However,

the Respondent described Mrs Riley’s demeanour at that conference as “very scatty” and that

by the end of the conversation things had settled down. The Respondent further submitted

that, as a result, it did not expect Mrs Riley to lodge an application with the Commission.

[22]      Based on the material before the Commission, it appears that while Mrs Riley

foreshadowed the possibility of lodging an application with the Commission in the

abovementioned conference with the Respondent, she subsequently took no further steps to

dispute her dismissal prior to lodging her general protections application.

[23]      This does not support a finding that there were exceptional circumstances.

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

[24]      Mrs Riley did not directly address this factor in her oral submissions.

[25]      The Respondent contended that it would be prejudiced given that it is a small start-up

business, adding that defending the matter distracted it from its commercial operations and

imposed a cost burden. While I note the Respondent’s submission in this regard, the reasons

relied upon do not of themself constitute prejudice in the sense that the Respondent would be

disadvantaged in defending the application were an extension of time granted.

[26]      I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[27]      Mrs Riley stated that she believed she had a really strong case. In support of that

contention, Mrs Riley described the Respondent as not having an “accepting environment”

and submitted that her dismissal seemed to be really discriminatory, particularly as the

Respondent knew the standard of her English when it employed her. Mrs Riley also

contended that it was not fair for the Respondent to change her job description and then rely

on her English skills as not being good enough to dismiss her.

[28]      The Respondent submitted that it was not aware of Mrs Riley’s prior existing medical

conditions or personal circumstances and that it has sympathy for her circumstances. The

Respondent submitted that its reason for dismissing Mrs Riley was that her English language

skills were not sufficient for the role. The Respondent described Mrs Riley’s role as requiring

“robust engagement” with client callers and that it was and still is anticipating a dramatic

increase in a number of client calls. The Respondent also submitted that it had received

feedback from clients that they were frustrated with their telephone interactions with the

company.
[2016] FWC 1295

[29]      While the Respondent acknowledged that it was aware of Mrs Riley’s English

language skills when it employed her, it also contended that it was difficult to gauge how

someone would handle the pressures of a role during the recruitment process and that the

probationary period provided an opportunity for such an assessment. The Respondent further

contended that, on reflection, it probably should have had Mrs Riley take calls as part of the

recruitment process to gauge her capacity in this regard.

[30]      Based on the material before the Commission, it cannot be said that Mrs Riley’s

application is without merit. However, I am unable to form a considered view as to what, if

any, of the reasons relied upon by the Respondent to justify dismissing Mrs Riley are

reasonable in the absence of a more substantive hearing of the evidence. Against that

background, I consider the merits of the application to be a neutral consideration.

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

[31]      Neither party addressed this consideration in their submissions.

[32]      Against that background, I consider this factor to be a neutral consideration.

Conclusion

[33]      The question of exceptional circumstances was dealt with in Nulty in the following

way:
“[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.”
[34]	The above analysis does not see any factors point to the existence of exceptional

circumstances. Against that background, and both having considered all of the factors set out

in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances

warranting the granting of a further period for the making of an application under s.366(2).

[2016] FWC 1295

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[35] Accordingly, the application will be dismissed. An order to that effect will be issued

with this decision.

Appearances:

M. Riley on her own behalf.

D. Ryan with B. Brudo for the Respondent.

Telephone Hearing details:

2016.

Melbourne:

4 February.

Printed by authority of the Commonwealth Government Printer

<Price code C PR577503>

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(2010) 197 IR 403 at 408-409

2

[2011] FWAFB 975

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PR577505.