Romana Galbraith v Compass Group Remote Hospitality Services Pty Ltd T/A Compass Group
[2018] FWC 4068
•11 JULY 2018
| [2018] FWC 4068 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Romana Galbraith
v
Compass Group Remote Hospitality Services Pty Ltd T/A Compass Group
(C2018/2086)
| COMMISSIONER SIMPSON | BRISBANE, 11 JULY 2018 |
Application to deal with contraventions involving dismissal – application filed outside timeframe – extension granted.
This application concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Ms Romana Galbraith who alleges her employment was terminated by Compass Group Remote Hospitality Services Pty Ltd (the Employer) in contravention of the general protections provisions of the Act. The Employer denies the allegations, and contends that Ms Galbraith was not “dismissed”; rather her employment came to an end at the end of her fixed term contract.
Ms Galbraith stated in her application that she commenced employment with the Employer on 10 January 2018, and remained employed until her dismissal on 28 March 2018. Ms Galbraith’s general protections application was lodged on 19 April 2018 and was therefore made one day outside the 21 day period prescribed by the Act.
The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission). The Employer did not consent to the application proceeding to a conference and on that basis the matter was listed for a hearing of the extension of time argument on 10 July 2018.
The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgment was due to exceptional circumstances.
Section 366 of the Act provides:
“Section 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.”
Background
On 19 April 2018 the Commission received a “Form F8 – Application” from Ms Galbraith dated 18 April 2018. Part 1.4 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Galbraith marked “Yes” in response to this question.
On 18 June 2018 the parties were invited to make submissions in relation to the extension of time issue. Ms Galbraith filed a statement dated 8 May 2018 and a further statement dated 30 May 2018 and submissions. The Employer filed a brief outline of argument. The matter was listed for telephone hearing on 10 July 2018 to determine whether an extension of time should be granted however the Employer could not be contacted at the scheduled time. Both parties subsequently confirmed that they agreed to the Commission determining the matter on the papers.
Submissions
The Reason for the Delay – s 366(2)(a)
Ms Galbraith submitted that her application under s.365 of the Act was completed by herself on 18 April 2018, and that she believed she had emailed it to the Commission that same day, at 10.36am, from an email scanning station at Townsville City Library. Ms Galbraith gave evidence that the scanning station informed her that her application had been “successfully sent”.
Ms Galbraith stated that when she was not contacted by the Commission by the next day, she was concerned and therefore called the Brisbane Registry on 19 April 2018, and was told her application had not been received. She forwarded her application to an alternative email address, provided by a staff member of the Commission, on 19 April 2018.
Following these events, Ms Galbraith submitted that she contacted the Townsville City Library IT Department on 23 April 2018 in relation to the attempted email of 18 April 2018, to which she received a response on 28 May 2018. Ms Galbraith submitted a copy of the scan confirmation forwarded from the IT Department on 25 May 2018. The forwarded message provides as follows:
“From: CityLibraries Townsville <[email protected]>
Date: Wed, Apr 18, 2018 at 10.36 AM
Subject: CityLibraries Scanning Station
To: <[email protected]>Thank you for using the CityLibraries scanning station, your scans are attached.”
The Employer did not give any evidence on this point.
I accept Ms Galbraith’s evidence that she made a genuine attempt, and believed herself successful, to submit her application via the Townsville CityLibraries Scanning Station at 10.36am on 18 April 2018.
I refer here to the decision in Marel Food Systems Pty Ltd T/A Marel v Michael Hall where the Full Bench upheld that an exceptional circumstance arose where the applicant had made a bona fide attempt to file his application within time, but had been prevented from doing so based on his electronic application not being received through the Commission portal, and where the applicant had a reasonable belief it had been accepted.
I refer also to Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[1] where an applicant filed 4 days outside the standard timeframe, but had made two attempts to lodge the application through the Fair Work website within time and was unable to successfully file. The application was subsequently posted to Fair Work Australia. Here it was likewise found that the applicant had made a bona fide attempt to make an application before the expiry of the timeframe, and that it was just and equitable to exercise the discretion to extend time.
Here, Ms Galbraith had attempted to submit her application from the Townsville Library, to a valid Commission email address. She believed her attempt on 18 April 2018 to have been successful. I am inclined to adopt a finding in line with the above authorities, that Ms Galbraith made a genuine attempt to submit the application in an eligible format and to a valid Commission address, but experienced technical difficulties she was not immediately made aware of. She initiated a follow-up call to the Commission the next day, and upon being made aware the application had not been successfully filed, she resubmitted. I find Ms Galbraith was proactive in her steps to resubmit within a timely manner.
Action taken to dispute the Dismissal – s 366(2)(b)
Ms Galbraith stated that following her dismissal, she made numerous attempts, both verbal and in writing, seeking a signed copy of her employment contract from Compass Group. A copy was not forwarded to her until 30 April 2018. Ms Galbraith submitted that this document was not the same document she had signed on commencement of her employment with Compass Group.
The Employer refutes Ms Galbraith’s statement that she took any steps to dispute the dismissal.
Prejudice to the Employer – s 366(2)(c)
Ms Galbraith submitted that any prejudice to the Employer caused by the delay in lodgement of her application is negligible. The Employer did not dispute this.
I am satisfied a delay of one day would not cause prejudice to the Employer. This supports granting an extension.
Merits of the Application – s 366(2)(d)
Ms Galbraith submitted that the merits of her application are reasonable given that, during her employment with Compass Group, she made regular complaints of alleged bullying and harassment by the Assistant Manager and other employees. She stated that the Employer knew of these ongoing concerns in the workplace.
She submitted that she raised issues relating to workplace health and safety with Mr Shane Taylor, the assistant manager. Regarding the issues of workplace bullying and harassment, she submitted that she raised these complaints with the head chef. Ms Galbraith said his name is Nathan but she doesn’t know his last name.
Further, Ms Galbraith states that she was not warned of her termination prior to the afternoon of 28 March 2018, when she says it took effect. This was her final day of work before planned leave. She submitted that she was told on 28 March 2018 that her employment “had been terminated”, and when she questioned Mr Neil Couchman “why has this come about?” she did not receive a reply.
The Employer denied that Ms Galbraith was dismissed for making any workplace complaint. The Employer specifically denied that Ms Galbraith’s completion of risk assessment documentation constituted workplace complaints in relation to her employment. The Employer submitted that at no time did Ms Galbraith raise a “complaint” to the Employer in relation to workplace health and safety at the site.
Further to the Employer’s submissions that Ms Galbraith’s termination did not relate to workplace complaints, it submitted that her employment was terminated at the end of her fixed term contract. The Employer states that Ms Galbraith was employed on a “fly in, fly out” (FIFO) basis, on a fixed term nature to allow the Employer some time to recruit local employees.
The Employer submitted a copy of Ms Galbraith’s employment contract which provides:
“2. START DATE
This contract of employment will commence on 10/01/2018
This appointment is for a fixed term and will continue until [31/03/2018] unless terminated earlier in accordance with the termination provisions of this contract of employment.”
The last page of the document ‘Contract of Employment’ submitted by the Employer appeared to be signed by the Ms Galbraith and witnessed by Jenifer Hessan on 6 January 2018. On the basis of the contract the Employer submitted that Ms Galbraith was not contracted to work beyond 31 March 2018.
Ms Galbraith submitted, however, that the document submitted by the Employer was not the copy of the employment contract she had signed on commencement of her employment. She submitted that the original copy had been signed by herself and Mr Neil Couchman on every page on 3 January 2018. She stated that she did not recall signing a contract which expired on 31 March 2018, and further that if it had been the case “it would have been hardly worth my while”.
The Employer confirms that 28 March 2018 was Ms Galbraith’s last working day on site, at the end of a 14 day swing. The Employer submits that Ms Galbraith was paid for the 7 days of “R&R” due to her, up until 4 April 2018. Ms Galbraith confirmed that this payment had been made.
The Employer did concede that the termination date could be taken as 31 March 2018, when the fixed term contract came to an end, and therefore the application may be taken as filed within time. However, the Employer submitted that as the contract had come to an end, and there can be no adverse action taken by the Employer, the application is without merit and should be dismissed. I note in regard to the submission of the Employer regarding its view on the merits that s.587(2) has the effect that even if I were to accept the Employers submission that on the point, the FWC has no power to dismiss a general protections application on such a basis.
The competing contentions give rise to factual disputes that I should not give detailed consideration as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s 366(2)(d) as a neutral matter.
Fairness as between the Person and other persons in a like position – s 366(2)(e)
Ms Galbraith noted that each application would turn on its merits, and therefore made no substantial submissions on this criterion.
The Employer did not make submissions as to fairness.
Consideration
Dealing firstly with the Employer’s primary submission that the application was filed within time. The Employer claimed the employment did not terminate until 31 March, 2018 but did not file evidence about what was said by anyone on 28 March. The Employer has also however submitted that the application should be dismissed because the application is without merit given its claim concerning the expiry of the limited term contract on 31 March being the reason for the employment coming to an end. Clearly if that were to be correct there is no need to extend time and the application is within jurisdiction. Equally however as stated above, the FWC would does not have jurisdiction to dismiss the application on the ground proposed the Employer.
The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd[2] (Nulty) as follows:
“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.”
Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[3]
The circumstances concerning the failure of the email to be sent from the Townsville Library to the Commission are exceptional within the meaning described in Nulty v Blue Star in that what occurred was out of the ordinary course, or unusual, or special, or uncommon but not unique, or unprecedented, or very rare. That being the case, and also taking into account all of the other circumstances set out above I am satisfied the circumstances can be regarded as exceptional. If Ms Galbraith is correct in claiming that her employment was terminated on 28 March, then she has attempted to file within the standard timeframe, and believed her attempt on 18 April 2018 to have been successful. Upon realising there may have been issues with lodgement, she was proactive in contacting the Commission and resubmitting one day outside the timeframe, on 19 April 2018.
Given that I find in combination these circumstances lead to exceptional circumstances, I am satisfied that it would be appropriate to exercise power under s.366 to grant an extension. Given the limited material available, including the statements of Ms Galbraith, I prefer the view that the employment ended on 28 March and therefore exercise power to extend time. If I were to be wrong about that issue and the application was filed within time the outcome is the same, namely that the application can proceed within jurisdiction. The matter will now be referred for a compulsory conference.
COMMISSIONER
<PR608864>
[1] [2010] FWA 1394.
[2] [2011] FWAFB 975 at [13].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901at [17].
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