Tammy Sparkes v Chubb Fire and Security Pty Ltd
[2012] FWA 5204
•19 JUNE 2012
[2012] FWA 5204 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Tammy Sparkes
v
Chubb Fire and Security Pty Ltd
(C2012/2436)
COMMISSIONER ASBURY | BRISBANE, 19 JUNE 2012 |
Alleged dismissal after absence from work - extension of time.
Background
[1] Ms Tammy Renee Sparkes has made an application under s.365 of the Fair Work Act 2009 (the Act) in relation to a contravention said to involve her dismissal by Chubb Fire and Security Pty Ltd (Chubb). It is not in dispute that Ms Sparkes was dismissed on 9 November 2011 and the application was made on 30 January 2011, 21 days outside the 60 day time limit prescribed in s.366(1)(a) of the Act.
[2] A conciliation conference was conducted on 6 March 2012. An earlier date was vacated at the request of Ms Sparkes, who was due to give birth to her second child at the relevant time. Chubb participated in the conciliation conference on the basis that the Company would oppose an extension of time in which to file the application in the event that the matter was not resolved in conciliation. The matter was not resolved in conciliation.
[3] On 15 March 2012, Directions were issued requiring the parties to file and serve statements from witnesses in relation to the extension of time application. The Directions indicated that each party was required to indicate whether the party wished to cross-examine any witness for the other party by 4 May 2012 and that in the event that cross-examination of witnesses was not required the application for an extension of time would be determined on the basis of material on the file.
[4] In accordance with the Directions, submissions and witness statements were filed by both parties. Statements of evidence were filed on behalf of Ms Sparkes. No statements of evidence were filed by Chubb and the Company advised that cross-examination of persons who made statements in support of the extension of time application was not required. Accordingly the application for an extension of time has been determined on the basis of the material on the file.
Legislation
[5] By virtue of s.366(1)(a) of the Act an application under s.365 for Fair Work Australia to deal with a contravention involving a dismissal, must be made within 60 days after the dismissal took effect, or within such further period as FWA allows under s.366(1)(b). Section 366(2) provides that FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] The use of the word “exceptional” demonstrates an intention that the hurdle for extensions under the Act is higher than was previously the case under the Workplace Relations Act 1996, 1 and that the legislature intended a significant narrowing of the discretion to extend time.2 More is required of an applicant than to simply provide an acceptable explanation for delay, and the terms of s.366(2) and s.394(3) in relation to unfair dismissal applications, can be contrasted with the broader discretion in s.371(2) for the Federal Court or the Federal Magistrates Court to extend the time in which general protections court applications must be made and the reference in the latter section to Brodie-Hanns v MTV Publishing Ltd.3
[7] The following interpretation of the term “exceptional circumstances” has been endorsed in a number of cases 4 as providing assistance:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is out of the ordinary course, or unusual or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly or routinely, or normally encountered.” 5
[8] Exceptional circumstances are not necessarily unexpected circumstances and can include a single matter or a combination of ordinary factors, which, although individually are of no particular significance, when taken together, are seen as exceptional. 6
[9] The approach to the issue of whether representative error was set out in Robinson v Interstate Transport Pty Ltd 7, where a Full Bench of Fair Work Australia endorsed the following approach in Clark’s Case8as summarised in Davidon’s Case9as providing appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
[10] The Full Bench went on to hold that representative error, in circumstances where the applicant was blameless, could constitute exceptional circumstances under s.366(2), subject to the other statutory considerations in ss.366(2)(b) to (e) of the Act.
[11] A finding that there are exceptional circumstances, taking into account the statutory considerations, is necessary before the discretion to extend time is exercised. The discretion should be exercised having regard to all of the circumstances, including the matters specified, and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 10
Submissions and evidence in relation to the extension of time application
[12] The reason for the delay advanced on behalf of Ms Sparkes is representative error. Ms Sparkes said that she returned to work from maternity leave in April 2011 following the birth of her first child and became pregnant with her second child in May 2011. In June 2011 Ms Sparkes had health issues associated with her pregnancy and took time off work. Following a series of absences from work due to illness between June and July 2011, Ms Sparkes went on sick leave on 18 July 2011 and did not return to the workplace.
[13] Ms Sparkes attended the offices of Macpherson + Kelley Lawyers (M+K Lawyers) on or about 14 September 2011, to seek legal advice about claims of discrimination and unfair treatment upon her return from maternity leave in April 2011. At the time of seeking advice Ms Sparkes was still employed by Chubb. Ms Sparkes made a workers’ compensation claim in September 2011 and in October 2011 was advised by M+K Lawyers that she could make a claim in the Australian Human Rights Commission with respect to her claim that she had been discriminated against following her return to work from maternity leave.
[14] On 7 November 2011, Ms Sparkes received a decision from WorkCover Queensland advising that her workers’ compensation claim had been refused. On 9 November 2011 Ms Sparkes received a letter from Chubb terminating her employment. On 10 November 2011 Ms Sparkes forwarded the WorkCover decision and a copy of the termination letter to Mr Mossman, of M+K Lawyers. On 23 November 2011 Ms Sparkes had a telephone discussion with Mr Mossman and was advised that she had several potential causes of action against Chubb including an application for an unfair dismissal remedy or a general protections application.
[15] Ms Sparkes told Mr Mossman that she wanted to proceed with a general protections application, a discrimination complaint in respect of her return from maternity leave and an application for a review of the decision to refuse her workers’ compensation claim. On 23 December 2011 Ms Sparkes had a further telephone conversation with Mr Mossman and Ms Demarco, during which she confirmed that she wished to pursue the adverse action claim. Ms Sparkes received the general protections application drafted by M+K Lawyers on 25 January 2012 and signed and returned it straight away. Ms Sparkes also stated that in January 2012 she was preparing for the birth of her baby and gave birth by caesarean section on 9 February 2012.
[16] Mr Mossman said that Ms Sparkes was an existing client of the M+K Lawyers. Mr Mossman confirmed that he received an email on 10 November 2011 from Ms Sparkes attaching her notice of termination. Mr Mossman also confirmed that he spoke to Ms Sparkes by telephone on 23 January 2012 and advised her of the potential causes of action. He stated that during that conversation Ms Sparkes advised that she wished to proceed with an adverse action claim. On 23 December 2011 Mr Mossman had another conversation with Ms Sparkes, also involving Ms Demarco (another solicitor). Ms Sparkes again confirmed that she wished to file an adverse action claim.
[17] Mr Mossman was away on leave in January 2012 and left Ms Demarco with carriage of the matter. When he returned from leave he discovered that the application had not been filed and instructed Ms Demarco to arrange for this to be done immediately.
[18] Ms Demarco said that Mr Mossman’s recollection of the initial telephone call was correct and confirmed that she was involved in the conversation of 23 December 2011, during which Ms Sparkes confirmed that she wished to make an adverse action application. Ms Demarco consequently prepared the application for filing. Ms Demarco stated that Ms Sparkes also instructed the firm to make a claim for Q-Comp review and a complaint to the AHRC. These claims all have different timeframes for filing. Ms Demarco mistakenly noted that the timeframe for filing an adverse action application in FWA was 60 business days, not 60 calendar days. Ms Demarco did not become aware of this error until Mr Mossman returned from leave. She promptly arranged for the application to be filed.
[19] It was submitted on behalf of Ms Sparkes that the delay in making the general protections application was due to representative error, and that she was blameless. Consistent with the Full Bench decision in MN Robinson v Interstate Transport Pty Ltd, where an applicant is blameless, representative error would normally constitute exceptional circumstances. In relation to the factors in s.366(2) of the Act, it was submitted that the legal representative incorrectly diary noted the timeframe for filing, leading to the delay. Ms Sparkes had actively taken steps to pursue her claim by instructing her solicitors to proceed with it.
[20] There would be no prejudice to the Respondent, as conciliation has already been unsuccessful and the success of this application would simply lead to the issue of a s.369 certificate. Regarding the merits of the application, it was submitted for Ms Sparkes that the claim of adverse action is strongly supported by the circumstances. The fact that Ms Sparkes was dismissed while on sick leave, which was caused by the bullying at work, provides a strong causal link between the dismissal and the Applicant’s allegations.
[21] Chubb submitted that the application was made 81 days after the termination had taken effect and therefore FWA could only consider the merits of the application if it determined there were exceptional circumstances that warranted the late filing.
[22] Ms Sparkes’ application alleges that Chubb dismissed her because she complained about bullying and harassment; took sick leave; made an application for workers compensation and was temporarily absent from work. Chubb denies each of these claims. Chubb submitted that the general protections application had not included grounds upon which an extension of time should be granted.
[23] Chubb also submitted that Ms Sparkes’ contention that representative error is solely to blame for the delay in making her general protections application, should be rejected. Further, Chubb submitted that there were no exceptional circumstances when the factors in s.366(2) of the Fair Work Act 2009 were considered. Regarding reason for the delay, Chubb noted that no reason was advanced until the morning of the s.365 conference, when Ms Sparkes’ representative provided an unsworn statement raising the issue of representative error. Chubb pointed to the fact that Ms Sparkes first spoke to M+K Lawyers around 23 November 2011 (which was 14 days after the termination) and again on 23 December 2011, which was still 15 days within the 60 day time limit.
[24] Chubb submits that M+K Lawyers is a well resourced firm with specialists in the field of workplace relations. It is contended that the conduct of Ms Sparkes’ representatives has been a deliberate attempt to shield Ms Sparkes, “fall on its sword and ‘cop’ the criticism and place blame on itself as a representative ... thereby describing the applicant as the innocent party.” This is described in Chubb’s submission as a “cynical tactic”. It is further contended that Ms Sparkes and her representatives have engaged in “a concerted attack on Chubb through a forum shopping campaign of workers compensation, human rights complaint and an adverse action allegation”.
[25] Further, Chubb submitted that it was unaware of Ms Sparkes’ opposition to her dismissal until it received the s.365 application, and that Ms Sparkes did not attempt to dispute the dismissal directly with Chubb. Chubb stressed that the onus was on Ms Sparkes to convince FWA that the time for making her general protections application should be extended.
[26] It is contended for Chubb that based on the fact that Ms Sparkes had a discussion with Mr Mossman 14 days after her dismissal (the specified time limit for unfair dismissal applications) it should be concluded that Mr Mossman advised Ms Sparkes she was on “the cusp of the time limit” for an unfair dismissal application. Despite this, Ms Sparkes did nothing to ensure that the time limit in which to make an adverse action application was being complied with. It is further contended that the meeting between Ms Sparkes and her legal representatives on 23 December 2011, was 15 days short of the 60 day time limit and the urgency of the lodgement of the application would have been a conscious matter for Ms Sparkes, particularly as she had “missed out”.
[27] It is also asserted that Ms Sparkes’ legal representatives have advised her that having failed to meet the time requirement for an unfair dismissal application, an opportunity remained available under the general protections provisions of the Act. This is said to demonstrate awareness by Ms Sparkes of the statutory time limits. Time limits are not to be treated lightly or with the cynicism displayed by Ms Sparkes and the application should be dismissed.
[28] Chubb submits that the case law referred to in the submissions for Ms Sparkes, can be distinguished on the basis of factual differences. In M N Robinson v Interstate Transport 11, the delay was three days compared to 21 days in the present case. In relation to McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,12 Chubb submits that in this case the general protections application followed significant proceedings via an unfair dismissal application which was withdrawn on advice from the applicant’s representatives. Chubb further submits (incorrectly) that the majority in McConnell granted an extension of time and the dissenting judgment of His Honour Vice President Lawler should be noted. It is submitted that Ms Sparkes did not act quickly to engage legal representation and did not challenge her dismissal until 81 days after it occurred, by filing the application subject of these proceedings.
Conclusions
Reasons for the delay - s.366(2)(a)
[29] Mr Mossman, a Solicitor and member of the firm of M+K Lawyers and Ms Demarco, a solicitor in the employ of the firm, have made statements to the Tribunal conceding representative error in terms of the time limit for making Ms Sparkes’ general protection application. Neither Mr Mossman nor Ms Demarco were required for cross-examination by Chubb, despite the opportunity being provided for Chubb to indicate whether it wished to cross-examine either or both of those persons.
[30] Such a concession is a serious matter for a law firm practicing in the area of employment law. While it is a surprising error, I do not accept the proposition advanced by Chubb that Mr Mossman and Ms Demarco have made the concession in order to “fall on their swords” or to engineer a finding that Ms Sparkes is blameless for the delay. If Chubb intends by its submission to level an allegation that either Mr Mossman or Ms Demarco have mislead the Tribunal in relation to providing an explanation for the delay in making Ms Sparkes’ application, then I do not accept that Mr Mossman or Ms Demarco have engaged in such conduct. I am also of the view that this allegation should not be made in circumstances where Chubb’s representative elected not to cross-examine either of those persons.
[31] The evidence establishes that Ms Sparkes, upon receiving written notice of her dismissal on 9 November 2011, forwarded that notice to M+K Lawyers on 10 November 2011 for the purposes of seeking legal advice. Thereafter, Ms Sparkes had two discussions with M+K Lawyers - on 23 November and 23 December - during which she gave instructions to the effect that she wished to make a number of applications including a general protections application. The instructions were given within the sixty day time limit in which to make a general protections application.
[32] Thereafter Ms Sparkes waited for her legal representatives to draft the application, and when she received it on 25 January 2012, promptly signed it and returned it so that it could be filed with Fair Work Australia. I can see nothing unreasonable in the conduct of an applicant who, having given clear instructions to her legal representative in relation to making an application, waits for that application to be drafted and forwarded to her for signature. This is also a case where Ms Sparkes was party to a number of proceedings against Chubb had engaged M+K Lawyers in relation to those matters. Given that there were a number of legal proceedings in contemplation and on foot, it is unremarkable that Ms Sparkes did not know the time limits applicable to each matter. In this regard, there is no evidence that Ms Sparkes was alerted to the sixty day time limit by Mr Mossman before he went on leave, and Ms Demarco states that she believed that the limit was sixty working days.
[33] As was the case in McConnell, Ms Sparkes gave instructions to her legal representatives on 23 November and 23 December 2011 and waited for those instructions to be acted upon. Those instructions were given inside the time in which the general protections application was required to be lodged. It is also the case that Ms Sparkes was pregnant and gave birth to her second child in February 2012. Ms Sparkes states that she was preparing for the birth at the time she signed and returned her application, and in these circumstances it is not surprising that her mind was otherwise engaged. In any event, Ms Sparkes had no reason to doubt that her legal representatives were taking the appropriate steps in accordance with her instructions.
[34] The submission of Chubb in relation to McConnell’s Case is incorrect. In that case, the majority refused an extension of time, with His Honour Vice President Lawler dissenting. The majority decision in that case was based on the finding that the applicant had not been directed by the Fair Work Ombudsman to take a particular course of action, and the applicant’s tardiness in seeking advice was a significant factor explaining the delay. This is not a conclusion that could be reached in the present case.
[35] I am satisfied that representative error has played a significant part in the delay in filing Ms Sparkes’ application and that she is blameless in regard to the delay.
Action to dispute the dismissal - 366(2)(b)
[36] Chubb’s submission in relation to this matter proceeds on the assumption that action to dispute a dismissal must be taken directly with the former employer. While there are cases where a dismissed employee makes attempts to engage directly with the former employer to dispute his or her dismissal, this is not the only type of action relevant under this section of the Act.
[37] An employee may dispute a dismissal by seeking legal advice and giving instructions that an application in respect of the dismissal should be made. Such action is equally relevant to the consideration of whether the employee has taken action to dispute the dismissal for the purposes of this provision. In the present case, Ms Sparkes emailed her termination letter to her legal representative on 10 November 2011, one day after she received it. Ms Sparkes also had two telephone conversations with her legal representatives within the time limit for lodging a general protections application. In the circumstances, I am satisfied that Ms Sparkes took action to dispute her dismissal.
[38] The fact that the grounds upon which an extension of time was sought were not set out in Ms Sparkes’ general protections application and were not raised until the conciliation conference, is not relevant to determining whether the extension of time should be granted.
Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)
[39] There is no evidence that Chubb will be prejudiced if the extension is granted, other than the Company may be required to defend the matter if Ms Sparkes decides to proceed with a general protections court application.
The merits of the application - s.366(2)(d)
[40] Chubb has submitted that Ms Sparkes has engaged in forum shopping, or has chosen to pursue a general protections application because the time in which to make an unfair dismissal application had lapsed at the point Ms Sparkes sought legal advice. The only relevance to this submission that I can discern is that it is directed to the merit (or otherwise) of the general protections application.
[41] I am unable to accept that the matters raised by Chubb are indicative of the merits or otherwise of Ms Sparkes’ general protections application. It is not unusual that a dismissed employee may have several causes of action in respect of the dismissal. The same set of facts may support either an application for an unfair dismissal remedy or an application under s.365 of the Act on the basis that the dismissal is said to contravene the general protections provisions of the Act.
[42] The fact that Ms Sparkes consulted her legal representative on the fourteenth day after her dismissal, is not a basis upon which I could find that she has made a general protections application because the time in which to make an unfair dismissal application had almost expired, or that she should have been aware of the time limit in which to file a general protections application because she was “on the cusp” of the time limit in which to make an unfair dismissal application.
[43] The issue of multiple actions and complaints in respect of a dismissal is dealt with in Chapter 6 Part 6-1 - specifically in Subdivision B of Division 3. Ms Sparkes has made an application for workers compensation with respect to a workplace injury and is seeking a review of the decision refusing that application; a complaint to the Australian Human Rights Commission alleging discrimination in relation to her treatment upon her return from maternity leave; and a general protections application in relation to her dismissal. No argument in relation to the application of the provisions preventing multiple actions was raised by Chubb in these proceedings and there is insufficient material before me to enable proper consideration of this issue.
[44] It is clear from the material on the file that there are disputed facts and in such cases, it is inappropriate to determine merit on the basis of assertions made in a conciliation conference, or in an application and the employer’s response to that application. It is sufficient for the purposes of considering the factor in s.366(2)(d) that Ms Sparkes establishes that her general protections application is not without merit, 13 and I am satisfied that this is the case.
Fairness as between Ms Sparkes and other persons in a similar position - s.366(2)(e)
[45] This is not a relevant consideration in the present case as there are no other employees affected. Further, this case involves representative error in circumstances where Ms Sparkes is blameless, and is a category of case which is generally accepted as constituting exceptional circumstances, subject to the consideration of the other factors in ss.366(2)(b) to (d). Such a case is not likely to give rise to concerns about fairness as between Ms Sparkes and other persons in a similar position.
Exceptional circumstances
[46] In my view, there are exceptional circumstances in this case, favouring the exercise of the discretion to extend the time for Ms Sparkes to make his unfair dismissal application.
[47] The application for an extension of time is granted. An Order extending the period for making the application in C2012/2436 until 30 January 2012, will issue. In light of the fact that a conciliation conference has been conducted and has not resulted in a resolution of the matter, and the submission on behalf of Ms Sparkes that if the extension is granted a Certificate under s.369 will be issued, I will also issue such Certificate with this Decision.
COMMISSIONER
Final written submissions:
4 May, 2012.
1 Shields v Warringarri Aboriginal Corp [2009] FWA 860 at [4].
2 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
3 (1995) 67 IR 298 at 299.
4 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 per Lawler VP; Parker v Department of Human Services [2009] FWA 1638 per Whelan C.
5 R v Kelly, Edward [2000] 1 QB 198 at 208 per Lord Bingham Cornwall CJ in Mann v Minister for Immigration and Citizenship (2009) FCAFC 180.
6 McConnell v A & PM Fornataro t/as Tony’s Plumbing Service (C2010/5355) per Lawler VP at [26] - [27].
7 [2011] FWAFB 2728.
8 (1997) 74 IR 413.
9 Print Q0784.
10 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
11 [2011] FWAFB 2728.
12 [2011] FWAFB 466.
13 M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.
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