Rupinder Kaur v Assetlink Services (17) P/L Prev (6)

[2020] FWC 1415

[2020] FWC 1415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rupinder Kaur
v
Assetlink Services (17) P/L Prev (6)
(C2019/6624)

DEPUTY PRESIDENT CROSS SYDNEY, 17 MARCH 2020

Application to deal with contraventions involving dismissal.

[1] On 28 October 2019, Ms Rupinder Kaur (the Applicant) lodged a Form F8 general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) (the Application). The Applicant claims that her employment with Assetlink Services (17) Pty Ltd (the Respondent) was terminated on 2 September 2019.

[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. As the alleged dismissal took effect on 2 September 2019, the Application should have been lodged by no later than 23 September 2019. The Application was therefore 35 days late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:

“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).”

[4] The Applicant acknowledged in the Application that she was making the Application later than 21 calendar days of his dismissal taking effect. She said:

“Actually I send the email to company and the union right center and they was helping me at that time but after that when nothing sort out, I try to decided to take a legal action.” (Original text retained)

[5] I also note, and consider relevant in the disposition of this matter, that in the Application the Applicant noted that she required a Punjabi interpreter to participate in any conciliation, conference or hearing. I accept at the very least that English is not the Applicant’s preferred language.

[6] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[7] On 29 November 2019, I convened a directions hearing to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed that the Application would be determined upon the materials filed.

[8] In the directions hearing, I guided both the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined in [6] above.

The Applicant’s case

[9] On 13 December 2019, the Applicant filed, through a representative, and served submissions (the Applicant’s Submission) and supporting documents. The Applicant’s Submission was contained in an email, the totality of which was as follows:

“I am attaching a supporting document and also forwarded a email which can mention assetlink is making fake documents after i register a complaint in fair work in the beginning i want to mention that main reason of delay my complaint. Honestly i was not aware by policy of submission a complaint with in 21 days. Assetlink was aware of this policy that’s why they wasted approximately of my 3 months i submit a complaint of sexual harassment on 23/08/19 and you can check this in attachment assetlink gave me a file note on 8/08/19 so in my opinion its prove they are making fake documentation. Secondly reason of my delay is as i mention i was not aware by this police of 21 days when i aware about this its already been more than 2 months because i was trying to get a help by HR department of assetlink and the union United voice and when assetlink HR team mention that the person bhesh who did sexual harrasment with me he was not at work on 21/08/19 assetlink mention he was working a night shift from 18/08/19 i am attaching the whole email which assetlink submitted to the fair work commission when assetlink HR team sent me a email on 21/10/19 and mention that bhesh was doing a night shift from 18/08/19 and after that i heard about work safe on social networking site and make a call to work safe and they guide me with a legal advice and they mention i have go to fair work commission and on 29/10/19 I submitted a request and complaint in respected fair work commission. Thanks” (Original text and emphasis)

The Respondent’s case

[10] On 7 January 2020, the Respondent filed their submissions (the Respondent’s Submissions), the totality of which was as follows:

“Please see below the Respondent, (Assetlink Services (17) P/L), response to directions issued on 29 November 2019 addressing the Applicant’s out of time application.

1. The Applicant has listed the dismissal date as 2 September 2019 and filed the application on 28 October 2019, 36 calendar days outside the prescribed limit under the Act.

2. The Applicant has failed to provide a submission addressing the out of time application or siting any reason for the application delay.

3. Whilst the Applicant has provided additional material relating to the matter, the applicant has failed to file any satisfactory evidence that would support the inability to make a general protections application outside the prescribed limit under the Act.

4. The Applicant has failed to provide any exceptional circumstances as set in SECT 366 (2) of the Act, that would satisfy any reasonable consideration for an extension.” (Original text retained)

The Applicant’s reply

[11] The directions issued allowed the Applicant to file Submissions and materials in reply. On 20 January 2020, the Applicant advised the Commission that she did not want to give any further reply, and that she had already provided everything in her “first reply”.

Consideration

[12] I will now turn to the matters I must consider.

(a) Reasons for the delay

[13] When making this determination, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[14] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[15] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[16] The fact that an Applicant is not aware of the 21 day time limit to file an application is not ordinarily an unusual or exceptional situation. That observation must however be tempered by the apparent fact that English is not the Applicant’s preferred language.

[17] It is clear from the Applicant’s Submission that she did not turn her mind to commencing proceedings but instead appears to have focussed her attention on dealing with the Human Resources Department of the Respondent, her Union, Worksafe, and possibly even the Police, in relation to an allegation of sexual harassment.

[18] In the materials relied upon by the Applicant, among other correspondence in the 35 day period between the expiry if the 21 day limitation period and the filing of the Application on 28 October 2019, is an email from the Respondent to the Applicant dated 21 October 2019, that summarised “investigations outcome to concerns shared by you on 15 October 2019”. Quite clearly, on the materials presented by the Applicant, there was active consideration by the Respondent of the Applicant’s complaints until a time close to the filing of the Application.

[19] While those actions are probably more relevant to the question of any action taken by the person to dispute the dismissal (though actual dismissal is disputed by the Respondent in the Form F8A Response, but not the Respondent’s Submission), they provide, when combined with the language difficulties apparently faced by the Applicant, some acceptable reason for the delay in commencing the Application, and so this factor weighs slightly in favour of the Applicant.

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

[20] As noted above, the Applicant did take action to dispute at least the allegations of sexual harassment. While that is not strictly disputing the alleged dismissal, it was action putting the Respondent on notice of allegations she wished to advance relating to her employment. I also accept the Applicant took those steps before making this Application. That she did so, weighs in her favour.

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

[21] While the period of delay is not short, the Respondent in the very brief Respondent’s Submission does not address this factor at all, or contend that there is any prejudice. I consider this factor weighs slightly in favour of the Applicant.

(d) The merits of the application

[22] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason. As noted above, in the Respondent’s Form F8A Response, there is a dispute as to whether adverse action in the form of a dismissal occurred at all, though that contention is not advanced in the Respondent’s Submission.

[23] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[24] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

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

[25] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[26] The Applicant has established that, when viewed holistically the circumstances surrounding her delay are out of the ordinary, unusual, special or uncommon. When the appropriate weight is assigned to each relevant consideration, the circumstances are such to establish the status of exceptional.

[27] The Respondent did not identify any Submission, document or evidence which might persuade me not to exercise my discretion notwithstanding that I have concluded there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant that conclusion. Indeed, the Respondent seemed content to simply submit that the Applicant “failed to provide a submission”, “additional materials” or “any exceptional circumstances”, without any more as the basis for resisting the claim. That I have found to an extent to the contrary leaves the Respondent’s position somewhat unsustainable.

[28] I therefore propose to allow the Applicant further period within which to lodge the Application. The Application may therefore be lodged by 28 October 2019.

[29] The Application will be progressed by way of a conference at a time and date to be advised.

DEPUTY PRESIDENT

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