Tracey Phillips v The Salvation Army (Qld) Property Trust atf the Social Work T/A the Salvation Army

[2017] FWC 5841

[2017] FWC 5841

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Tracey Phillips
v
The Salvation Army (QLD) Property Trust atf The Social Work T/A The Salvation Army
(C2017/4627)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 NOVEMBER 2017

Application to deal with contraventions involving dismissal – Jurisdiction – Consideration of whether further period for Application to be made should be allowed – No exceptional circumstances – Application dismissed.

BACKGROUND

[1] Following a hearing on 18 October 2017, I refused to allow a further period under s. 366(2) of the Fair Work Act 2009 (the Act) for Ms Tracey Phillips to make an application for the Fair Work Commission (the Commission) to deal with a general protections dispute relation to her dismissal from employment with The Salvation Army (QLD) Property Trust atf The Social Work T/A The Salvation Army (the Respondent) and dismissed that application. 1 My reasons for refusing to allow a further period for the application to be made are as follows.

[2] Ms Phillips’ application for the Commission to deal with a general protections dispute was made on 22 August 2017. It is not in dispute that Ms Phillips’ dismissal took effect on 30 June 2017. By virtue of s. 366(1) of the Act, an application under s.365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The application was required to be made by 21 July 2017, and was made 32 days outside the time required in s. 366(1) of the Act and 53 days after the dismissal took effect.

[3] Correspondence was sent by the Commission on 12 October 2017 to the Applicant and the Respondent advising that the Applicant’s application had been filed outside the required time and setting out the considerations in s.366(2) of the Act which must be established for a further period in which to make the application to be allowed. Both parties were requested to provide an outline of argument in relation to whether a further period should be allowed for the application to be made. Both parties filed outlines. The Commission again corresponded with the Applicant on 16 October 2017 advising that her submission had not addressed the matters in s. 366(2) of the Act and invited her to submit any further relevant information addressing those matters. The Applicant did not respond to that email.

[4] A hearing was conducted on 18 October 2017. At the hearing the Applicant gave evidence in relation to why she should be granted a further period in which to make the Application and was given an opportunity to provide further information about the matters in s. 366(2) of the Act. The Respondent made a submission in opposition to the Applicant being allowed a further period in which to make the application.

LEGISLATION

[5] Section 366(2) of the Act provides as follows:

(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 similar position

[6] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or



• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 2

[7] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 3 The Applicant must provide a credible reason for the whole of the period that the application was delayed.4 The circumstances from the time of the dismissal must also be considered and ultimately whether that reason constitutes exceptional circumstances.5

[8] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.366(2) of the Act. I will consider each of those matters in turn.

CONSIDERATION

Reasons for the delay

[9] The reasons for the delay advanced by the Applicant at the hearing were that upon being informed of her dismissal, it was necessary for her to take care of her spiritual wellbeing by undertaking cultural practices of going back to her country and making a connection with her indigenous family again. This involved sitting down on country, speaking to people and reconnecting with land, talking about Dreamtime and hearing stories to remind her about where she is from and why she is here. The Applicant also described this process as taking care of her mental health.

[10] The Applicant tendered a patient summary from a medical practitioner indicating that she was diagnosed with “Depression, reactive” on 1 August 2017. The Applicant said that this was the date she had seen the doctor but the condition commenced prior to that date. The patient summary does not state that the Applicant was suffering from a medical condition which impacted on her ability to file her application within the required time.

[11] The Respondent pointed to the fact that from 24 July 2017 to 7 August 2017, the Applicant composed and sent a number of emails to the Respondent as follows:

• Email of 24 July 2017 complaining to the Respondent and the Department of Community Services, Child Safety and Disability about the manner in which her employment ended and the reasons for her dismissal;



• Email of 31 July 2017 to the Respondent providing contact details and advising that the Applicant would be happy to be contacted to discuss her complaint;



• Email of 31 July 2017 to the Respondent requesting a separation certificate; and



• Email of 7 August 2017 posing questions about an investigation to be conducted by the Respondent into the Applicant’s complaint.

[12] The complaint email from the Applicant dated 24 July 2017 indicates that the Applicant has given the matter “enormous consideration” before deciding to complain about the term of her employment and the notification of her employment ending. The email goes on to allege that the Applicant had been harassed after reporting concerns about a situation that was detrimental to clients, staff and the Applicant. The Applicant also expressed concerns about lack of feedback about her performance during the course of her employment and that the steps taken in ending her employment would affect her ability to apply for employment with the same funding provider. In response to the Applicant’s complaint dated 24 July 2017 the Respondent informed her that her voice was being heard and her concerns would be communicated through the appropriate channels. The Applicant responded by email dated 31 July 2017, in the following terms:

“I thank you for your understanding and commitment to my concerns being addressed objectively.

I also thank you for ensuring that concerns raised by MIRS clients, and forwarded to myself, have been forwarded to the appropriate TSA representatives.

I would be happy to be contacted directly regarding this matter. My updated mobile contact number is…”

[13] The Respondent also tendered a copy of a letter from the Commission dated 22 August 2017 indicating that the Applicant had withdrawn an application for an unfair dismissal remedy. The Commission’s records indicate that the Applicant made an application for an unfair dismissal remedy on 21 August 2017. On that date, the Applicant was contacted by staff of the Commission by telephone and email and informed that on the basis of information contained in her unfair dismissal application, the period of her employment did not appear to meet the minimum employment period necessary for her to make an unfair dismissal application. The Commission’s records indicate that the Applicant informed staff that she would withdraw her application and make an application under the general protections provisions of the Act.

Any action taken by the person to dispute the dismissal

[14] The Applicant sent a letter of complaint to the Respondent on 24 July 2017 and filed an application for an unfair dismissal remedy on 21 August 2017. The Respondent points to the fact that neither of these actions were taken within the time required in s. 366(2) of the Act and maintains that the first time that it was aware that the Applicant had any issue with her dismissal was 24 July 2017 when it received her email of complaint.

[15] The Respondent submits that the complaint email on 24 July 2017 does not indicate that the Applicant is seeking any remedy and the Applicant has not attempted to dispute her dismissal within the statutory time period or put the Respondent on notice that the dismissal is contested. 6

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

[16] Prejudice to the employer will weigh against granting a further period for an application to be made. However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”. 7 The Respondent does not press that the granting of a further period for the application to be made would result in prejudice.

Merits of the application

[17] In the matter of Kornicki v Telstra-Network Technology Group 8the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 9

[18] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 10

[19] In terms of the merits of the present application, there is a factual dispute over the circumstances which led to the dismissal of the Applicant on 19 June 2017. Insofar as there are factual disputes regarding the circumstances surrounding the termination of the Applicant’s employment, I regard the merits of the matter as a neutral factor with respect to the extension of time issue.

Fairness as between the person and other persons in a similar position

[20] Considerations of fairness relative to other persons in similar positions were not addressed by either party, and I do not find this factor to be relevant in this matter, other than to note that in my view, if the basis for a further period being allowed that was advanced by the Applicant succeeded, it would be inconsistent with other cases where a further period has been refused.

CONCLUSION

[21] Having considered all of the matters raised by the Applicant and required by the Act, I am not satisfied that there are exceptional circumstances which would justify a further period being granted for the application to be made. The Applicant was provided with several opportunities to address the considerations in s. 366(2). The Applicant did not provide any time frame in which she engaged in cultural activities. There was no medical evidence to suggest that she suffered a medical condition which impacted on her ability to make the application within the time required in s. 366(1) of the Act.

[22] The Applicant was able to write a letter of complaint to the Respondent in relation to the termination of her employment three days after the time frame for making a general protections application expired. The Applicant has not explained what occurred in the period from her dismissal to 21 July such that she was not able to lodge her general protections application. Further, the Applicant has not explained why she was able to correspond with the Respondent about her dismissal but was not able to lodge an application with the Commission. The Applicant was asked to explain these matters at the hearing and could not do so.

[23] I accept the Respondent’s submission that the complaint email does not contest the dismissal. The email does not indicate that the Applicant is considering any other action in relation to her dismissal or that she is seeking a remedy in respect of it. Rather, the email is directed at client issues and seeking an explanation of the reasons for the dismissal to enable the Applicant to seek further employment. The Respondent’s reply to the complaint email does not provide any basis for the Applicant to have believed that her dismissal would be reversed or reconsidered through the investigation that she requested and she continued to engage in discussion about the investigation rather than taking any step to file an application with the Commission.

[24] The first indication that the Applicant was contesting her dismissal was on 21 August when she filed an unfair dismissal application. That application was made 52 days after her dismissal and 31 days outside the 21 day time limit. This is not a case where the Applicant incorrectly filed a particular application within the required time frame or even close to it, and then withdrew and filed a further application within time or shortly after time had expired.

[25] There is no prejudice to the Respondent from the delay, other than the prejudice that would flow if the application was made within the required time and the Respondent was put to the cost and effort of defending it. Merit is a neutral consideration. Notwithstanding these matters, to find exceptional circumstances would be inconsistent with other cases where further periods have been refused.

[26] For these reasons the Applicant’s request for a further period in which to make her application was refused, and an Order was issued on 18 October 2017 dismissing her general protections application.

DEPUTY PRESIDENT

Appearances:

Ms T. Phillips appeared on her own behalf.

Mr D. Kensey and Ms N. Luhrs on behalf of the Respondent.

Hearing details:

Brisbane.

18 October.

2017.

 1   PR596903.

 2   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 3 Ibid at [15].

 4   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

 6   Dwyer v Verifact Pty Ltd [2013] FWC 2634; Wilson v Woolworths [2010] FWA 2480.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Ibid.

 10   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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