Shields v Warringarri Aboriginal Corp
[2009] FWA 860
•29 OCTOBER 2009
[2009] FWA 860 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Warringarri Aboriginal Corporation
(U2009/11630)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 29 OCTOBER 2009 |
Unfair dismissal – extension of time for lodging application – principles – comparison with test under Workplace Relations Act 1996 – whether s394(3) considerations exhaustive – special circumstances – constitutional corporation – what constitutes a trading corporation
[1] Ms Bernadette Shields resigned from her employment with the Kununurra Warringarri Aboriginal Corporation on 5 August 2009. The resignation was accepted on 7 August 2009. The applicant contends that she was dismissed within the meaning of s.386(1)(b) of the Fair Work Act 2009 (the Act) because she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by her employer. She seeks relief from Fair Work Australia (FWA) on the basis that the termination of her employment was unfair. A person who is protected from unfair dismissal (s.382) may apply to FWA for a remedy (s.394), on the ground that the person had been unfairly dismissed (s.386).
[2] The application for relief must be made within 14 days after the dismissal took effect. That is provided for in s.394(2). The respondent objects to FWA entertaining the application because it submits that the application was out of time. It was either seven or nine days out of time depending on whether one takes the date of resignation or the date that the resignation was accepted as the operative date. Secondly, it submits that the applicant was not a protected person who is entitled to take such an action in respect of an unfair termination of employment.
[3] Under s.396 of the Act, FWA is required to consider whether an application is made within time, as well as whether the applicant was protected from unfair dismissal, before considering the merits of the application. I note that one of the matters to which regard is to be had, in deciding whether to extend an application, is the merits of the application. There seems to be some tension between that requirement and s.396. Section 394(3) authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances taking into account certain specified matters.
[4] The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. Time for making an application under the Act is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act. It seems to me that the alterations between the two Acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word “exceptional” also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act than it was under the WR Act
[5] It follows that I would go further than did Commissioner Williams in Robert Lim v Downer EDI Mining 1 where at paragraph 37 the Commissioner said:
At the same time the legislation does not now include a more liberal test for allowing a further period to make an application, indeed, arguably the new reference to “exceptional circumstances” in section 394 subsection (3) suggests a stricter test.
[6] In my view, the test is stricter than it was under the WR Act. The applicant filed an affidavit in support of her application for an extension of time and she was not cross-examined on that affidavit. The affidavit lists a litany of occurrences including the applicant having been “culturally sung” in order to demonstrate that by the time she came to tender her resignation, she was in such a state of mental distress as to be unable to properly look after her affairs. She spent two weeks in bed at her brother’s residence in Humpty Doo after having received the acceptance of her resignation on 7 August 2009.
[7] However, I note that on 27 July 2009, the applicant attended the Kimberley Legal Services regarding an alleged suspension from duty by the Board of Directors of the respondent. She went on to depose that on 22 August 2009, she saw an advertisement in a newspaper under the heading of “I Need a Lawyer”. This led to her making inquiries and seeing her current solicitors on 27 August 2009. The application was lodged the following day on 28 August 2009. The inference that the applicant seeks to have drawn from that is, that it wasn’t until she saw her lawyers on 27 August 2009 that she was apprised of her rights and it wasn’t until 22 August 2009 that she was alerted to the fact that she could seek legal advice.
[8] For the respondents, it is put that the applicant’s evidence does not disclose exceptional circumstances. I agree. Although the facts here are unusual, it is not unusual that people who feel that they were forced to resign consider themselves to have been traumatised to the extent that they cannot act in a timely manner to protect their interests. Here, it seems to me, that the applicant’s case is weaker because she did have legal advice a short time prior to her resignation and had indeed been contemplating and had attempted to resign for some time. She had been in touch with legal representatives and it seems to me in the circumstances that there was an ability by her to contact those legal representatives at or around the time of her resignation.
[9] Section 394(3), requires that in deciding whether there is a satisfaction as to exceptional circumstances certain matters need to be taken into account. The first is the reason for the delay, and I’ve discussed that. The second is whether the person first became aware of the dismissal after it had taken effect. Obviously the applicant had because she resigned. The next is, any action taken by the person to dispute the dismissal. The respondent pointed out that no action seems to have been taken here, such as seeking relief from the Ombudsman or some other authority. I don’t have much regard to that in the circumstances of this case.
[10] The next is prejudice to the employer including prejudice caused by the delay. Again, that doesn’t seem to me to be a factor militating against the extension of time. Any extension of time prejudices the employer to the extent that it must then defend the case. The next is the merits of the application. I accept that in a situation such as this where the merits are not sought to be gone into and are not permitted to be decided prior to dealing with an extension of time, that factor is neutral in this case. In some instances, it will be clear on the papers whether or not the application has merits.
[11] It seems to me, having regard to the requirement in section 396 that, prior to considering the merits of an application, FWA must decide whether the application was made within time, a detailed examination of the merits should not be undertaken on the issue of whether or not to extend time. I don’t agree with Mr Hope, the solicitor for the applicant, that the matters set out in s.394(3)(f) are not exhaustive. There is no additional category such as “any other matters that Fair Work Australia may consider relevant”, which is often added to a list of items such as those that appear in subsection (3).
[12] In the circumstances, I decline to allow a further period of time to make the application and it must be struck out. Although it is not necessary to decide the matter, in any event, the applicant is not a protected person and would not be able to make the application. A person is protected from unfair dismissal if at the time of the termination of the employment the person was an employee (see s.382). In Part 3-2 an employee is defined as a national system employee and an employer as a national system employer (see s.380).
[13] A national system employee is an individual employed by a national system employer, (s.13). A national system employer is defined in s.14. Here it is relevantly a constitutional corporation.
[14] The respondent is incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The preamble to that Act provides that it is intended to be a special law for the descendants of the original inhabitants of Australia. It is intended for the purposes of paragraph 4 of article (1) of the International Convention on the elimination of all forms of racial discrimination and the Racial Discrimination Act 1975 to be a special measure for the advancement and protection of aboriginal peoples and Torres Strait Islanders.
[15] By section 96-1 of that Act, a corporation incorporated under it, has all the powers of a body corporate. A brief perusal of that Act leads me to the tentative view that the respondent is not precluded by its terms from being a trading or financial corporation, and therefore, the normal considerations apply. A constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies (see s.12 of the Act). Paragraph 51(xx) of the Constitution applies to a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth.
[16] The respondent referred me to a judgment of the Western Australian Industrial Appeals Court in Aboriginal Legal Services of Western Australia (Inc) v Lawrence (2) 2. In that case, the President at paragraph 68 summarised the principles relevant to determining the issue of whether a corporation is a trading or financial corporation. At paragraph 68 his Honour, said:
The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:
(l) A corporation may be a trading corporation even though trading is not its predominant activity.
(2) However, trading must be a substantial and not merely a peripheral activity.
(3) In this context “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.
(4) The making of a profit is not an essential pre-requisite to trade but it is a usual concomitant.
(5) The ends which a corporation seeks to survey by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted in the public interest, or for a public purpose, will not necessarily exclude the categorisation of those activities as trade.
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisation as a trading corporation is a question of fact and degree.
(7) The current activities of the corporation while an important criterion for determining its characterisation are not the only criteria. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities, can be found to be a trading corporation, even if it was not originally established to trade.
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading.
[original citations omitted]
[17] Although that judgment was delivered after the judgment of Justice Spender in Australian Workers Union of Employees, Queensland v Etheridge Shire Council 3, it appears that that judgment was not referred to or considered by the Western Australian Industrial Appeal Court. Nevertheless, the principles drawn from the judgments in both cases, appear to me to be similar. Justice Spender in paragraph 71 cited the judgment of Justice Toohey in the Federal Court of Australia, in Hughes v Western Australia Cricket Association (Inc)4. His Honour at paragraph 72 adopted Justice Toohey’s summary of those principles:
The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case.
1. The mere fact that a corporation trades does not mean that it is a trading corporation: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7; (1974) 130 CLR 533 at 543, 562 (St George County Council); R v Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6; (1979) 143 CLR 190 at 219, 234 (Adamson).
2. The purpose of incorporation, propounded in St George County Council, is no longer a valid test. The test is one of the current activities of the corporation: Adamson; State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282 at 304; (1982) ATPR 40-326 at 43,976-43,977 (State Superannuation Board).
3. But the current activities test is not the sole criterion for determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant: Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 602; (1983) ATPR 40-350 at 44,218.
4. Views as to the necessary extent of trading activity have varied. It must be a substantial corporate activity (Barwick CJ in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J in Adamson at 233, with Jacobs J concurring at 237); the trading activities should not be insubstantial (Murphy J in Adamson at 239); the corporation must carry on trading activities on a significant scale: (Mason, Murphy and Deane JJ in State Superannuation Board at 304; 43,976-43,977; Deane J in Commonwealth v Tasmania [1983] HCA 21; (1983) 57 ALJR 450 at 559-560.
5. An incorporated sporting body can be a trading corporation if its activities meet the required test: Adamson.
6. In particular, incorporation under a statute such as the Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description: Adamson at 232.
7. Trading denotes the activity of providing, for reward, goods or services: Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139; St George County Council at 569-570; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325 at 330-331; (1985) ATPR 40-565 at 46,568.
8. The Trade Practices Act itself draws a distinction between trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive: State Superannuation Board at 303.
[18] Justice Spender concluded at paragraph 85 saying:
I therefore proceed to inquire whether the Etheridge Shire Council is a trading corporation or a financial corporation, by considering whether, on the evidence, “the predominant and characteristic activity of the Etheridge Shire Council is trading, whether in goods or services, or whether the predominant and characteristic activity of Etheridge Shire Council is in finance”.
[19] Adopting that approach I would conclude that the respondent is not a trading or financial corporation. The respondent relies on an affidavit of Caroline Louise Banton which was sworn on 20 October 2009. Ms Banton is the acting chief executive officer of the respondent. At paragraph 7 Ms Banton outlined the activities of the respondent:
(a) A money business program: This is a free and user friendly service for indigenous people that aims to help families with making ends meet and get better control of their household budget.
(b) Night patrol program: This is a free bus service to aid intoxicated people picking them up off the streets and dropping them home, or to a safe environment such as the shelter.
(c) Shelter program: This is a free hostel, it is run as a safe haven for intoxicated persons. At the shelter, intoxicated persons are taken out of harm’s way and are well looked after with bedding, food and facilities.
(d) Aboriginal Community Housing Service Provider Repairs and Maintenance: KWAC performs services for the State Department of Housing and Works to collect rent from, and to organise repairs and maintenance to aboriginal community housing. The State Department of Housing and Works provides KWAC with funds to provide the service, as referred to further below. The service is not for profit.
(e) KWAC provides free municipal service to communities, which includes essential services such as the maintenance of water pumps and electricity generators, maintenance of sewerage and the collection of rubbish.
(f) Until 30 June 2009, KWAC was a provider of the Commonwealth Development Employment program. However, it was not successful in its tender for that program from that date.
(g) The long term lease of farms owned by KWAC to third parties.
[20] Appended to Ms Banton’s affidavit was the general purpose financial report for the year ended 30 June 2008. It is readily apparent that of its annual income for the 2008/2009 period of some $4,206,181 the only non government grant income received by it was in the order of $368,500 from a long term lease of a farm owned by it to third parties. There seem to be some discrepancies in the documentation that I have as to the precise value of that lease, but it’s of that order. The constitution of the respondent was also appended to the affidavit of Ms Banton. The constitution is probably correctly referred to and is headed “The Rule Book”. The second paragraph sets out the guiding principles as follows:
The corporation will be guided by the following principles:
1. Respect for ourselves, people, our elders, our country and culture, (land and lore)
2. Integrity and Leadership
3. Equity and Fairness
4. Natural and Social Justice
5. Accountability to our members, our aboriginal way and the rule of law
6. Openness and transparency in our communications with members
7. Acting in good faith, honestly and with integrity
8. Work with commitment, diligence effectively and efficiently
9. Doing the right and proper thing for the corporation and members
10. We reflect love, care and nurturing in our work
11. Aboriginal and on aboriginal people working together
12. Sustainability in our use of resources
13. Follow our heart and the world our members
[21] The next paragraph is headed “Objectives” and reads:
Warringarri means ‘to come together’. We are the Mirriwung and Gajerrong people coming together as one big mob.
The primary purpose of our corporation is to develop our community, members and families in all ways.
The corporation aims to:
1. Improve the quality of life and well being of our members
2. Good neighbours, working for all the community not just our members
3. Building trust and friendship with our neighbours, other aboriginal organisations and other people in groups on mutually beneficial projects
4. Reduced dependency and empower our members and the community and encourage members to manage their own affairs
5. Promote our traditional culture
6. Build our community, businesses, and local economy
7. Improve education, training and employment
8. Meet the needs of communit
9. Receive grants, donations and spend the money consistent with the right purpose and these rules
10. Improve housing and accommodation for our community
11. Promote and encourage our youth to be good leaders
12. Support healthy lifestyles and improve sport, social, recreation and culture facilities in our community
13. Operate and maintain a gift fund to be known as the “Kununurra Warringarri Aboriginal Corporation Aboriginal Corporations Gift Fund” in accordance with the requirements of the Australian Taxation Office
[22] Having regard to those matters, I am comfortably able to conclude that the predominant and characteristic activity of the respondent is neither trading nor finance. It follows that had I extended time for filing of the application, I would in any event have dismissed it on the basis that the applicant is not a person protected from unfair dismissal.
[23] The application for an unfair dismissal remedy must be struck out.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr R Hope, solicitor, for the applicant
Ms R Slaven, solicitor, for the respondent
Hearing details:
Darwin.
2009:
October 21
1 [2009] FWA 457
2 [2008] WASCA 254
3 [2008] FCA 1268
4 (1986) 19 FCR 10
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