Thalea Pompey v Marthakal Homelands Resource Association Inc. T/A Marthakal Homelands Resource Centre

[2015] FWC 8749

[2015] FWC 8749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Thalea Pompey
v
Marthakal Homelands Resource Association Inc. T/A Marthakal Homelands Resource Centre
(C2015/2530)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 18 DECEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting a further period for the making of an application - application dismissed.

[1] Ms Thalea Pompey (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 14 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Marthakal Homelands Resource Association Inc. T/A Marthakal Homelands Resource Centre (the Respondent) on 13 March 2015 in contravention of the general protections provisions in the Act.

[2] The Respondent filed their response with the Commission on 1 May 2015, and objected to the application on the basis that Ms Pompey had not been dismissed. The Respondent contends that Ms Pompey resigned on 6 March 2015.

[3] Based on Ms Pompey’s version of events, her application was lodged 11 days outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. On the Respondent’s version of events, the Commission’s jurisdiction under s.365 of the Act is not enlivened as there was no dismissal. In the alternative, the Respondent submits that the application was lodged 18 days outside the statutory timeframe for lodgement.

[4] Notwithstanding the dispute around the specific date on which the employment relationship came to an end, it is common ground that the application was lodged outside the statutory timeframe for lodgement.

[5] Against that background, the Commission issued Directions on 13 May 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[6] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[7] 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

[8] The Respondent is a not-for-profit association which provides a range of services to the Markathal Homelands and is located on Elcho Island, an island off the coast of Arnhem Land in the Northern Territory. Ms Pompey commenced employment with the Respondent on 13 September 2013 in the position of Healthy Families Co-ordinator. Ms Pompey assumed the position of Development Services Co-ordinator on 1 September 2014. Ms Pompey was employed on a casual basis in that role.

[9] In her application, Ms Pompey alleges that she was dismissed from her employment on 13 March 2015 after the Respondent’s Chief Financial Officer, Ms Pamela Oliva, discovered Ms Pompey was an undischarged bankrupt in New Zealand.

[10] The Respondent denies all of Ms Pompey’s allegations. The Respondent submits that, whilst Ms Oliva did inquire into Ms Pompey’s bankruptcy on 4 March 2013, this was part of Ms Oliva’s professional duty of care in ensuring the Respondent’s compliance with the Association Act (NT). The Respondent submits that, following these discussions, Ms Pompey resigned on 6 March 2015. The Respondent relies on an SMS message sent by Ms Pompey on 6 March 2015 to numerous persons within the Respondent’s organisation which sets out the background to her bankruptcy and stated among other things that “I have no choice but to leave the island.” The Respondent also points to a text message sent on 5 March 2015 by Ms Pompey’s partner to Ms Oliva which stated that Ms Pompey had “stood down so has no further involvement.” Ms Oliva deposed that she “did not tell [Ms Pompey] to step down or withdraw at any time.”

[11] As previously noted, Ms Pompey’s general protections application was received by the Commission on 14 April 2015, which is either 11 or 18 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[12] 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
(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

[13] 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

[14] Ms Pompey submitted that the reason for the delay in filing her application was that an agreement was negotiated with the Respondent after her employment had ceased which was not honoured by the Respondent. The agreement appears to cover the payment of alleged underpayments; Ms Pompey’s accrued employee entitlements and her legal fees. Ms Pompey further submitted that the Respondent’s lawyer did not contact her legal representative, inferring that the Respondent’s deliberate delays impacted on her ability to lodge within the 21 day timeframe.

[15] The Respondent maintained that no agreement had been entered into with Ms Pompey.

[16] It is not clear how the lack of contact from the Respondent’s legal representative impeded Ms Pompey from lodging her application within the 21 day statutory timeframe. Her failure to lodge her application within the statutory timeframe is more difficult to understand given that Ms Pompey had legal representation at the time.

[17] The reason for the delay relied upon by Ms Pompey does not point to the existence of exceptional circumstances.

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

[18] Ms Pompey did not directly address this factor in her submissions, though in her submissions she did state that she was approached by Mr Gurruwiwi of the Respondent in an effort to resolve the matter 1.

[19] The Respondent maintained that Ms Pompey had resigned from her employment.

[20] Based on Ms Pompey’s submissions it does not appear that she took any action to dispute her dismissal prior to lodging her general protections application, with the discussions with the Respondent centred on payment of monies allegedly owed to her and her legal fees.

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

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

[22] Again, Ms Pompey did not directly address this factor in her submissions.

[23] The Respondent submitted that the mere absence of prejudice against an employer is insufficient to provide a basis for an extension of time. As such, the Respondent requested that the Commission exercise its broad discretion to dismiss the application in this instance.

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

(e) The merits of the application

[25] Again, Ms Pompey did not directly address this factor in her submissions. In her application, however, Ms Pompey cited a number of contraventions of the general protections provisions of the Act, in particular ss.340, 343, 344, 346, 348, and 351. More specifically, Ms Pompey alleged, inter alia, that she had been bullied and harassed when publicly disparaged by another of the Respondent’s Senior Managers, that the Respondent’s acting Chief Executive Officer had failed to protect her from discrimination when she did not make contact with New Zealand Insolvency and the Official Assignee as she had agreed to do, and that she had been coerced to stand down from her position by Ms Oliva. In support of her application, Ms Pompey relies on two letters from the Respondent’s Chairperson, Ms Jane Garrutju. Those letters were dated 11 and 12 March 2015 2, with the first sent to Ms Oliva expressing dissatisfaction with the way she treated Ms Pompey and the second sent to Ms Pompey confirming that the Respondent will provide her with a reference and that “your lawyers fees will be paid including all reimbursements and entitlements.”3

[26] The Respondent submitted that Ms Pompey had not identified adverse action within the meaning of the Act, contended that Ms Pompey’s submissions and further evidence do not support her submissions generally and are of little probative value and denied Ms Pompey’s allegations. The Respondent further submitted that it acted reasonably and lawfully in all the circumstances and that the application has no reasonable prospect of success. The Respondent provided witness statements by Ms Oliva and Ms Gurrutju which both disputed key aspects of Ms Pompey’s submissions.

[27] Based on the material before the Commission it is clear that a number of key issues are disputed, e.g. whether Ms Pompey resigned or was dismissed. The Respondent also challenged the validity of the two letters relied upon by Ms Pompey, submitting that the Chairperson’s signature was obtained improperly by Ms Pompey. In those circumstances, I am unable to form a view as to the merits of the application.

[28] As such, I consider this factor to be a neutral consideration.

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

[29] Neither Ms Pompey nor the Respondent directly addressed this factor. As such, I consider it to be a neutral consideration.

Conclusion

[30] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 4(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.”

[31] 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).

[32] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   Reply by Applicant to Form F8A Response (from Marthakal Homelands Resource Centre) at page 3

 2   Form F8 – General Protections Application Involving Dismissal at Attachments B and D

 3   Ibid at Attachment D

 4 (2011) 203 IR 1

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