Whitton and Secretary, Department of Employment and Workplace Relations
[2024] AATA 83
•30 January 2024
Whitton and Secretary, Department of Employment and Workplace Relations [2024] AATA 83 (30 January 2024)
Division:GENERAL DIVISION
File Number: 2021/8655
Re:Tina Whitton
APPLICANT
AndSecretary, Department of Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:30 January 2024
Place:Perth
The Reviewable Decision is affirmed.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
FAIR ENTITLEMENTS GUARANTEE – entitlement to redundancy payment – claim for advance on redundancy payment – whether Applicant entitled to an advance under the Fair Entitlements Guarantee Act 2012 (Cth) for redundancy pay – whether Applicant made an effective claim – Applicant filed claim after the relevant time period – no discretion to extend time period – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J(1)
Fair Entitlements Guarantee Act 2012 (Cth) ss 5, 10, 10(1)(h), 14, 14(2), 14(2)(a), 14(2)(b)
CASES
Azizi and Secretary, Department of Employment [2016] AATA 890
Brown and Secretary, Department of Employment [2017] AATA 96
Browne and Secretary, Department of Employment [2015] AATA 978
Merante and Secretary, Department of Employment [2017] AATA 1178
Mills and Secretary, Department of Employment [2016] AATA 121
Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Pace and Secretary, Department of Employment [2016] AATA 474
Porciello and Secretary, Department of Employment [2017] AATA 819
Tickner and Secretary, Attorney-General's Department [2022] AATA 837
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
30 January 2024
BACKGROUND TO THE REVIEWABLE DECISION
Ms Whitton was employed by a company called Protective Services 1 Pty Ltd (the Employer Company). She commenced her employment on 8 September 2014.
On 6 June 2019 Ms Whitton’s employment was terminated by an insolvency practitioner.
A liquidator was appointed to the Employer Company on 7 June 2019.
On 10 September 2021, Ms Whitton made a claim under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act).
The FEG Act, in summary, provides for the Commonwealth to pay advances to eligible employees for unpaid employment entitlements in certain circumstances such as where an employer becomes insolvent or bankrupt.
Ms Whitton claimed a total amount of $19,954.52 in unpaid wages, leave entitlements, payment in lieu of notice and redundancy entitlements.
On 20 September 2021, a delegate of the Respondent decided that Ms Whitton was not eligible for an advance under the FEG Act. The delegate decided that Ms Whitton had not made an effective claim because it was lodged after the 12 month timeframe prescribed by s 14(2) of the FEG Act. I will refer to this decision as the Original Decision.
On 13 October 2021, Ms Whitton sought internal review of the Original Decision. In her application for review she explained her reasons for making the application, and provided an explanation for the delay:
My claim was rejected as it was not made within the 12 months of the insolvency date. As stated within my claim, due to COVID, Deloittes took longer than normal to complete their investigations. I was only advised of my entitlements a few months ago and considering the amount I have outstanding, and the chaos that has been caused worldwide by COVID I therefore wish to have this decision reviewed due to COVID 19 and the impact that this had on my claim process and the lateness of submitting my FEG claim.
I believe it is very unfair of FEG to hold to a 12 month time frame considering the worldwide pandemic and the effects its had on me as an individual, Deloittes as an organisation and all the other issues that has been caused across Australia during this time. In requesting this review I wish for my FEG entitlements to be paid (and the delay has entirely been caused by COVID and is outside my control).
I appeal to FEG to show empathy when dealing with my claim as any such delay was outside my control.
However, on 22 October 2021, a different delegate of the Respondent affirmed the Original Decision for the same reasons (the Reviewable Decision).
MS WHITTON’S APPLICATION TO THIS TRIBUNAL
On 16 November 2021, Ms Whitton lodged an application in this Tribunal seeking review of the Reviewable Decision. In response to the question in the application form, “Why do you claim the decision is wrong?”, Ms Whitton stated:
FEG have advised I am ineligible as my claim was not made within the 12 months of the date of my employer’s insolvency.
Unfortunately due to COVID and all the restrictions this caused I was only recently advised by the insolvency practitioner of my outstanding employee entitlements, which I made to FEG.
Due to COVID and the pandemic and the lateness of which I received the information regarding my claim, the position taken by FEG is I believe wrong considering all of the circumstances that COVID has caused, and would like the department’s decision reviewed.
After Ms Whitton lodged her application for review, there were delays in her application proceeding through the Tribunal’s conferencing process due to her representative being seriously ill. The parties agreed that the application could be determined on the papers pursuant to s 34J(1) of the Administrative Appeals Tribunal Act 1975 (Cth), but due to a listing error, the application was not allocated to a member for determination. The application was eventually listed for me to determine on 24 January 2024.
I have considered the following submissions and evidence:
·Respondent’s Statement of Issues dated 10 January 2022.
·Respondent’s Statement of Facts, Issues and Contentions dated 28 April 2022.
·Section 37 Documents labelled T1 to T10 and comprising pages 1 to 83.
Ms Whitton did not file any submissions or evidence.
ISSUES
The central issue that I need to consider is whether Ms Whitton met the conditions of eligibility for an advance in accordance with s 10 of the FEG Act.
This requires a consideration of whether she made an “effective claim” as required by s 10(1)(h) of the FEG Act, and as defined by s 14 of the FEG Act.
In this application s 14(2) of the FEG Act is relevant because it deals with the timing of an effective claim.
CONSIDERATION
Section 10 of the FEG Act sets out the conditions of eligibility for an advance under the FEG Act. Relevantly, s 10(1)(h) of the FEG Act provides that the Respondent needs to be satisfied that the person has made “an effective claim” for them to meet the eligibility requirements.
Section 14 of the FEG Act sets out the requirements for an effective claim. One of those requirements concerns the timing of the claim. Specifically, s 14(2) provides:
(2)The claim must be made before the end of 12 months after the later of the following events:
(a) an insolvency event happens to the employer;
(b) the person’s employment by the employer ends.
An “insolvency event” is defined in s 5 of the FEG Act. The relevant part of that definition is:
“insolvency event”: an insolvency event happens to an employer of a person:
(a) when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001; …
The liquidator was appointed to the Employer Company on 7 June 2019 (s 14(2)(a) of the FEG Act). Ms Whitton’s employment was terminated on 6 June 2019 (s 14(2)(b) of the FEG Act). Therefore, Ms Whitton needed to make her claim before the end of 12 months after 7 June 2019. Unfortunately, Ms Whitton did not make her claim for an advance under the FEG Act until 10 September 2021, approximately 15 months later than this statutory deadline.
I have sympathy for Ms Whitton who was late in lodging her claim due to circumstances outside of her control including receiving late advice from the insolvency practitioner about her outstanding entitlements. I will therefore consider whether there is any discretion to extend the time.
Subsection 14(2) of the FEG Act uses the word “must” which denotes an obligation (to make the claim in the 12 month period) and a lack of discretion (to allow a claim outside of that period).
Such a construction was confirmed in other decisions made by this Tribunal.
In Browne and Secretary, Department of Employment [2015] AATA 978 at [43], Deputy President Kendall, as His Honour then was, stated:
It is clear that the Act does not permit the Secretary any discretion to extend the time period for making an effective claim.
In Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [55] Deputy President Alpins stated:
I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended …
In Mills and Secretary, Department of Employment [2016] AATA 121 at [24], Deputy President Kendall stated:
In relation to the 12 month time limit for making a claim, the FEG Act does not give the Secretary (or the Tribunal on review) any power to extend the period of time for making a claim, whether in exceptional circumstances or otherwise.
In Pace and Secretary, Department of Employment [2016] AATA 474, Senior Member Poljak stated, at [36]:
The Act does not permit the Secretary or the Tribunal any discretion to extend the time period for making an effective claim. Under the Act, a person will only be eligible for an advance if the Secretary is satisfied that an effective claim has been made, and on time.
In Brown and Secretary, Department of Employment [2017] AATA 96 at [40], Deputy President Kendall stated:
The requirement to make a claim within the relevant period is a strict requirement. The Tribunal has no discretion to extend the legislative 12 month timeframe …
In Merante and Secretary, Department of Employment [2017] AATA 1178, Deputy President Forgie considered the same provisions as in this application and concluded, at [10]:
These provisions do not leave any room for the implication of a power to extend the time within which to make a claim for an advance. No express power is given and so, as unfortunate as it is, I do not have power to extend the time within which Mr Merante could make his claim by just two days.
More recently, in Tickner and Secretary, Attorney-General's Department [2022] AATA 837 at [41], Member Mitchell stated:
The FEG Act clearly places the obligation on the employee to make a claim or to have a claim made on their behalf. The requirement to make a claim within the 12 month period is a strict requirement of which no discretion to extend that period has been provided by the FEG Act. As such the circumstances surrounding why the Applicant’s claim was not made within the 12 month period are irrelevant to the outcome of the Applicant’s claim under the FEG Act. In the absence of an effective claim, the Applicant’s application must fail.
(Footnote omitted.)
Other Tribunal authorities have also stated that there is no discretion to extend the 12 month period (Porciello and Secretary, Department of Employment [2017] AATA 819 at [8]; Azizi and Secretary, Department of Employment [2016] AATA 890).
I agree that these Tribunal authorities have correctly interpreted the FEG Act and there is no discretion for me to extend the time.
Thus, by lodging her claim after the 12 month period, Ms Whitton did not make an effective claim and she did not meet the conditions of eligibility for an advance.
Although the reasons expressed by Ms Whitton for the delay are entirely understandable and I am sympathetic to her predicament, unfortunately the FEG Act does not give me any discretion to extend the time in s 14(2) of the FEG Act for making the claim.
This means that Ms Whitton cannot succeed with this application.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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Associate
Dated: 30 January 2024
Date of determination on the papers:
24 January 2024
Representative for the Applicant:
Mr Philip Couper, Travaglini Corporate Advisory
Representative for the Respondent:
Mr Peter Lehmann, Attorney General’s Department
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