Trudy-Ann Howse v Regis Aged Care
[2020] FWC 3305
•24 JUNE 2020
| [2020] FWC 3305 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 773 - Application to deal with an unlawful termination dispute
Trudy-Ann Howse
v
Regis Aged Care
(C2020/3469)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 JUNE 2020 |
Unlawful termination – late application – redirection of mail due to COVID-19 protocols – exceptional circumstances – extension granted – national system employer – section 723 – no jurisdiction – application dismissed
[1] Trudy-Ann Howse (Ms Howse or the Applicant) has applied to the Commission under section 773 of the Fair Work Act 2009 (FW Act) to deal with an unlawful termination dispute 1.
[2] Ms Howse alleges that the termination of her employment on 17 April 2020 by Regis Aged Care Pty Ltd (Regis or the Respondent) was for a reason prohibited by section 772.
[3] The application is opposed by Regis which, in its response 2, initially raised two jurisdictional issues: that the application was filed out of time; and that the application is barred from proceeding by section 723 of the FW Act.
[4] I directed 3 that Ms Howse and Regis provide views on the jurisdictional matters at a directions hearing on 12 June 2020. At that hearing, for reasons outlined below, Regis did not oppose an extension of time but pressed the section 723 objection.
[5] Following the hearing I further directed 4 that Ms Howse file materials by 18 June 2020 on the section 723 objection should she wish to do so. This period was provided for Ms Howse to follow-up earlier efforts to secure legal advice, should she so wish. I indicated that, in the absence of such materials, I would determine the issue on the material before me.
[6] No further submissions were filed nor has the application been discontinued. Accordingly the Commission determines the jurisdictional matters.
Extension of time
[7] Section 774 of the FW Act requires this application to be made within 21 days after the employment was terminated.
[8] It is agreed that the termination occurred on 17 April 2020. The application dated 22 April 2020 (five days after termination) was not stamped as received by the Commission until 12 May 2020 (25 days after termination). The application is four days out of time. For it to proceed, an extension of time would be required.
[9] Taking into account the factors in section 774(2) of the FW Act I conclude there are exceptional circumstances warranting an extension. The reason for delay is attributable to protocols established by the Adelaide Registry of the Commission for handling postal applications in light of the COVID-19 pandemic which caused the postal service to divert Ms Howse’s application to Melbourne, Victoria.
[10] The relevant facts are:
• Ms Howse mailed her application by express post to the Adelaide Registry (Riverside Centre, North Terrace) on or about 22 April 2020;
• Unknown to Ms Howse, on 27 March 2020 the Commission closed the Adelaide Registry to the processing of mail due to COVID-19 and instructed Australia Post to re-direct mail to a central repository at the Melbourne Registry. That redirection remains in place;
• Based on tracking information, on 7 May 2020 Australia Post (in Adelaide) re-directed Ms Howse’s application to the Commission’s on-forwarding address in Melbourne;
• The application was received by Commission staff in Melbourne on 12 May 2020 and immediately recorded as lodged that day.
[11] In light of these facts, Regis did not oppose an extension of time.
[12] Subject to jurisdiction otherwise being established, it is appropriate to order that the time be extended for the filing of Ms Howse’s section 773 application.
Section 723 objection
[13] Section 723 of the FW Act provides:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[14] Regis, being a constitutional corporation (Regis Aged Care Pty Ltd ABN 75125223645), was (and remains) a national system employer 5. Ms Howse was thereby a national system employee6. A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to an alleged contravention of Part 3-1 of the FW Act7. Applications under Division 2 of Part 4-1 are able to be made by national system employees with respect to alleged conduct by national system employers.
[15] I conclude that, at the time of her termination, Ms Howse was entitled to make a general protections court application.
[16] Accordingly, section 723 operates as an absolute bar to this application proceeding. As Ms Howse was not entitled to make the application which she filed, the Commission has no jurisdiction to further hear and determine the matter.
[17] I add for the sake of completeness that the Commission file indicates that administrative staff of the Commission on 12 and 20 May 2020 suggested to Ms Howse that she may wish to seek legal advice on whether her application could proceed. It was in this context that, on 12 June 2020, I provided further time for Ms Howse to access such advice and make submissions on the matter.
Conclusion
[18] An Order 8 dismissing Ms Howse’s application will be issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Ms T Howse, the Applicant on her own behalf.
Ms M Cole, Ms E Shaw and Mr Christie of and for Regis Aged Care.
Hearing details:
2020.
Adelaide (by telephone):
June 12.
Printed by authority of the Commonwealth Government Printer
<PR720450>
1 F9 22 April 2020
2 F9A 8 June 2020
3 Correspondence from Chambers 1 June 2020
4 Directions by email 12 June 2020
5 Section 14 FW Act
6 Section 13 FW Act
7 Section 368(4) FW Act
8 PR720455
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