Yolande Victoria Frances Dubow v East Coast Law Pty Ltd
[2024] FWC 1140
•2 MAY 2024
| [2024] FWC 1140 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Yolande Victoria Frances Dubow
v
East Coast Law Pty Ltd
(C2024/1804)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 2 MAY 2024 |
General protections application involving an alleged dismissal – jurisdictional objection – application filed outside 21 day time limit – no exceptional circumstances – application dismissed.
Introduction
Ms Yolande Dubow lives alone in Dunedoo with about a hundred farm yard animals and five cats. She was admitted as a solicitor in New South Wales on 20 December 1984. For reasons I will shortly explain, Ms Dubow’s personal life has been “litigation heavy”[1] for many months.
On 20 March 2024, Ms Dubow lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is Ms Dubow’s former employer, East Coast Law Pty Ltd (East Coast Law).
Ms Dubow contends that East Coast Law contravened the general protections provisions in dismissing her from her employment. East Coast Law contends that it did not dismiss Ms Dubow and her application was filed outside the 21 day time period.
This decision only deals with East Coast Law’s contention that the application was filed outside the 21 day timeframe provided for in the Act and an extension of time should not be granted.
On 26 April 2024, I conducted a hearing in relation to the application by Ms Dubow for an extension of time. Ms Dubow gave evidence at the hearing. Ms Vicki Andrews, Senior Solicitor employed by East Coast Law, and Ms Michelle Rae, Administration Officer employed by East Coast Law, gave evidence for East Coast Law. Both parties made submissions on the extension of time issue.
Exceptional circumstances?
Section 366(1) of the Act states that a general protections application involving a dismissal must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). Ms Dubow’s employment with East Coast Law came to an end on 31 January 2024. Ms Dubow lodged her general protections application in the Commission on 20 March 2024. The application was therefore filed 28 days outside the 21 day period. Ms Dubow asks the Commission to grant a further period for the application to be made under s 366(2).
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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 can be considered exceptional.[3]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[5]
The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[6]
The relevant timeline of events may be summarised as follows:
In August 2023, East Coast Law offered Ms Dubow full-time employment as a solicitor based in Port Macquarie. Having been out of the workforce for a decade, Ms Dubow accepted the offer and moved to Port Macquarie to take up the job. East Coast Law provided payment of two weeks’ accommodation bond (refundable to East Coast Law upon the conclusion of Ms Dubow’s employment) to assist with her relocation costs.
On 11 September 2023, Ms Dubow commenced employment with East Coast Law in Port Macquarie. At that time, Ms Dubow was an undischarged bankrupt and the New South Wales Law Society was aware of two criminal charges against her, both of which were being contested.
On 9 November 2023, Ms Dubow was convicted in her absence at Dunedoo Local Court of a charge of intimidation relating to her neighbours in Dunedoo. Ms Dubow immediately applied at Port Macquarie Local Court for the annulment of that decision.
On 16 November 2023, Ms Dubow appeared in the Lithgow Local Court in relation to a strike out application in civil proceedings commenced by her in respect of a provisional Apprehended Violence Order taken out against her.
On 25 December 2023, Ms Dubow says she saw one of her neighbours at her farm in Dunedoo “running along the fence line with a stick pushing over my building materials”. Following a confrontation with Ms Dubow, the neighbour’s mother-in-law allegedly came out and started abusing Ms Dubow, kicking at the dividing fence to push over other building material and a privacy screen on Ms Dubow’s side of the fence. That screen was supported on Ms Dubow’s side of the fence by a wall of bricks. Those bricks fell when the neighbour’s mother-in-law kicked the fence. Ms Dubow believed that the kicking had stopped but while Ms Dubow was bending down to pick up the bricks, Ms Dubow alleges that the neighbour’s mother-in-law kicked the fence again and the bricks fell on Ms Dubow, injuring Ms Dubow’s right shoulder. Ms Dubow also says that her left wrist subsequently became swollen with overuse.
On 27 December 2023, Ms Dubow started an application for an Apprehended Violence Order against her neighbours.
On 28 December 2023, Ms Dubow saw a medical professional in Port Macquarie.
On 3 January 2024, Ms Dubow returned to work in Port Macquarie.
On 8 and 9 January 2024, Ms Dubow was absent from work on personal leave.
On 10, 11 and 12 January 2024, Ms Dubow attended work in Port Macquarie.
In about mid-January 2024, Ms Dubow no longer had her rental accommodation in Port Macquarie and was finding it difficult to obtain alternative accommodation, particularly with her pets. As a result, Ms Andrews authorised Ms Dubow to stay overnight in the Port Macquarie office of East Coast Law for two nights, so that Ms Dubow would have somewhere to sleep and bathe. But this was not a position which East Coast Law was willing to agree to on an ongoing basis.
At 8:20am on 16 January 2024, Ms Andrews sent an email to Ms Dubow asking where Ms Dubow would be staying that week and pointing out that Ms Dubow could not continue to stay living in the Port Macquarie office. At 9:13am, Ms Dubow responded by email in the following terms:
“Would you like me to resign as at 31 January or wait until 15 February for your leave?
The situation is untenable and I am on a lot of pain killers and not making any money.”
At 9:47am on 16 January 2024, Ms Andrews replied in the following terms:
“Sadly, I agree with you about the situation. I have spoken to Paul [director of East Coast Law] and the firm accepts your resignation. I would like you to stay on until 31/1…”
There is no dispute that Ms Dubow remained in employment with East Coast Law, and was paid her wages, until 31 January 2024, at which time her employment came to an end by way of her resignation. In light of the absence of any dispute about these matters, I do not need to address Ms Dubow’s argument that “the acceptance of a resignation by an unauthorised officer of the Company may not be sufficient to ground a resignation”.
On 16 January 2024, Ms Dubow appeared, by audio visual link, in the Mudgee Local Court in relation to her annulment application.
On 19 January 2024, orders were made in proceedings in which Ms Dubow is a party in the NSW Civil & Administrative Tribunal requiring Ms Dubow to file and serve documents by 16 February 2024. These proceedings relate to Ms Dubow’s accommodation bond for the property she rented in the Port Macquarie area.
In late January 2024, Ms Dubow discussed with Ms Andrews the possibility of her continuing some work for East Coast Law after her resignation on 31 January 2024 in relation to various criminal matters on which Ms Dubow had been working during her employment. Those discussions did not result in Ms Dubow undertaking any such work for East Coast Law after her resignation.
On 29 January 2024, Ms Rae contacted Ms Dubow about an alleged overpayment of wages arising from her limited accrual of personal leave and annual leave during her limited period of employment with East Coast Law. A payment plan for voluntary repayment of the alleged debt was forwarded to Ms Dubow. She declined to sign it.
On about 30 January 2024, Ms Dubow commenced a Criminal Victims Claim in respect of the injury she sustained on 25 December 2023. Ms Dubow says that this claim was rejected because the police refused to act.
On 30 January 2024, Ms Dubow appeared, by audio visual link, in the Mudgee Local Court in relation to her application for an Apprehended Violence Order against her neighbours. The proceedings were stood over until 24 February 2024.
On 1 February 2024, Ms Dubow wrote to the New South Wales Law Society to cancel her practising certificate so that she could obtain a partial refund. It was cancelled on 2 April 2024 and has since been reinstated.
On 2 February 2024, Ms Dubow appeared, by audio visual link, in the District Court at Orange in relation to her civil proceedings which had been in the Lithgow Local Court.
On 5 February 2024, East Coast Law provided Ms Dubow with a separation certificate stating that she resigned.
On 24 February 2024, Ms Dubow appeared, in person, in the Mudgee Local Court in relation to her application for an Apprehended Violence Order against her neighbours. The proceedings were stood over until 2 April 2024.
On 26 February 2024, Ms Dubow appeared, in person, in the District Court at Dubbo in relation to her appeal from an annulment application at Mudgee Local Court.
In the period between 14 February 2024 and 20 March 2024, as well as dealing with her personal litigation, Ms Dubow applied for about 40 jobs.
In early to mid-March 2024, Ms Dubow received correspondence from a debt collector engaged by East Coast Law in relation to the debt she allegedly owed concerning the overpayment of wages and the two weeks’ accommodation bond which she was required to repay on the termination of her employment.
On 18 March 2024, Ms Dubow was sent a letter from a law firm (Wiggins Legal) acting on behalf of East Coast Law in relation to the debt allegedly owed by Ms Dubow. In that letter Ms Dubow was informed that the law firm was in the process of “lodging with the Local Court at Newcastle the necessary documents required to have a Summons issued in this matter”. Ms Dubow characterised this letter in her evidence as a communication from the debt collectors engaged by East Coast Law.
On 20 March 2024, Ms Dubow filed her general protections application in the Commission.
Towards the end of March 2024, Ms Dubow commenced a private criminal prosecution against her neighbour’s mother-in-law who had allegedly kicked the fence into Ms Dubow on 25 December 2023. Prior to commencing this prosecution, it had taken Ms Dubow three months of investigation and asking locals for help to identify the defendant from a photograph Ms Dubow took on the night of the incident.
Throughout February and March 2024, Ms Dubow says that her focus was on maintaining her record free of criminal antecedents, remaining safe from her “barbaric neighbours”, and defending her reputation as an honest lawyer so that she could maintain a right to work as a solicitor. Ms Dubow says that her life at this time “was clearly litigation heavy with substantial consequences and in some disarray given my ability to lift my right arm or hold things in my hands”.[7]
In her general protections application form Ms Dubow gave the following explanation for the delay in filing her application:
“I did not realise I would need the protection of General Provisions until the employer has forwarded a claim to the debt collectors for money paid in advance as contribution to the Rental Bond which has been frozen by the Real Estate Agent and is subject to hearing under tenancy law on 17 May 2024.
The injury I suffered was supported by medical evidence and medical certificates for the time taken off work. I am not malingering, and will resume work as soon as possible. In the meantime, it does seem to be a breach of my General Protections that the salary paid by the employer and the Contractual Bond loan which is held frozen by other circumstances is now the basis of a “debt” against me.
The termination of my employment was a constructive dismissal. There was no notice period applied or indeed respect for my right to not be terminated whilst injured.”
Ms Dubow’s written submissions in support of her application for an extension of time include the following in relation to the reason for her delay:
“The Applicant suffered a disabling injury. There was a tear to the right rotator cuff which was full-thickness and caused significant delay in obtaining medical treatment and advice. There is no evidence (judicial notice) but the Applicant is right hand dominant and the injury took many months to self heal. The Applicant is 62 years of age and invasive surgery was considered unhelpful.
It is unusual and an exceptional circumstance for an employer to pay once per month. There was consequences for an employee in being so paid, but there were also consequences for an employer who took an intractable position regarding working from home, leave absence and difficult circumstances.
The payback of bond monies will be remedied once a bond is released. The clawback of wages earned, over a period of difficulties is unreasonable. The employer is in a better position to wear that expense than the employee, terminated without a valid reason other than the injury suffered whilst employed and aggravated by the circumstances of that employment.
There would not have been a complaint regarding the termination in breach of protections, if that did not result in a significant debt accumulated and pursued by the Employer (see Wiggins Lawyers letter received 26 March 2024). At the time of the dismissal from employment with East Coast Law the litigation to retain a practising certificate as a solicitor within the employer law firm took precedence. As did the process for the return of Bond money, through further litigation for return to the employer. If reinstatement was to be sought, a practising certificate would be necessary. The injury not being treated and healing naturally meant a certain period of rest and delay was inevitable. My ability to litigate is the reason I was employed.
The injury is the reason for the delay: the injuries the reason for the dismissal.
The injury made continuation with an effort to retain a practising certificate even more necessary in an attempt to return to work, any work and get out of Dunedoo, isolated, injured and without resources, the delay is not surprising.”
Taking into account all the circumstances, I do not consider the matters relied on by Ms Dubow, individually or together, to be an acceptable or reasonable explanation for the 28 day delay in filing her general protections application. Ms Dubow was aware that there was a 21 day period following her alleged dismissal for her to lodge a general protections application in the Commission. Ms Dubow clearly chose to prioritise other matters, including the various pieces of personal litigation in which she was involved and applying for other employment, over commencing her general protections application against East Coast Law. I accept that Ms Dubow was injured on 25 December 2023, and as a result she attended a number of medical appointments in the following months. I also accept that Mr Dubow’s injury made it more difficult than usual for her to prepare documents and undertake legal work in the period between 31 January 2024 and 20 March 2024, however it is clear from the summary of relevant events set out above that Ms Dubow was not incapacitated such that she was not able to prepare a general protections application prior to 20 March 2024. It is clear from both Ms Dubow’s oral evidence and the reasons she gave for the delay in her general protections application that the main reason for her commencing her general protections application on 20 March 2024 was the letter she received from Wiggins Legal dated 18 March 2024, informing her that they were lodging documents in the Local Court at Newcastle in relation to the debt allegedly owed by Ms Dubow to East Coast Law.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 20 March 2024 weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Ms Dubow relies on the personal litigation in which she was involved in the period between 16 January 2024 and 20 March 2024, as summarised above, to submit that she took action to dispute her dismissal. I do not accept this submission. The litigation in which Ms Dubow was involved in this period of time was not action taken by Ms Dubow to dispute her dismissal. Most of the litigation had no connection to her employment at all. Even Ms Dubow’s litigation pertaining to the unfreezing of her accommodation bond was not action to dispute her dismissal; it was action to address a situation which arose in connection with Ms Dubow’s rental accommodation. Accordingly, this factor does not weigh in support of Ms Dubow’s contention that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to East Coast Law if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
In her general protections application Ms Dubow contends that East Coast Law has contravened s 340 of the Act but does not identify or explain any particular workplace right on which she relies. Ms Dubow’s submissions and witness statement filed in support of her request for an extension of time allege that she was dismissed because of her injury in breach of s 352 of the Act. There is no dispute that Ms Dubow was injured on 25 December 2023 and she remained injured during January, February and March 2024. However, I consider that Ms Dubow’s claim that she was dismissed because she was temporarily absent from work because of her injury is a weak one. The contemporaneous emails exchanged between Ms Dubow and Ms Andrews on 16 January 2024, to which I have referred above, provide support for the reason for the cessation of Ms Dubow’s employment with East Coast Law being the fact that Ms Dubow did not have, and could not find, ongoing accommodation in which she could live in the Port Macquarie area while she worked for East Coast Law.
Further, I consider Ms Dubow’s claim that she was dismissed to be weak one. Ms Dubow contends that she was forced to resign because East Coast Law, via Ms Andrews, sent her an email on 16 January 2024 informing Ms Dubow that she could not continue to stay living in the Port Macquarie office and asking her where she would be staying. The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) of the Act is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[8] The requisite employer conduct is the essential element.[9] On the limited material before the Commission, it would be a weak argument to contend that East Coast Law intended to bring Ms Dubow’s employment to an end by informing her that she could not continue staying at the office overnight. That was undoubtedly a reasonable step for East Coast Law to take. There was a suggestion in Ms Dubow’s submissions that East Coast Law did not have enough work available for her to undertake and so took the opportunity to bring her employment to an end. Ms Andrews gave evidence that East Coast Law has been trying to find a replacement for Ms Dubow, but Ms Andrews was not aware of whether advertisements had been placed for the role. Evidence was also adduced as to how East Coast Law had to resource criminal law work in the months following Ms Dubow’s departure, which provides some support for the need for a solicitor to replace Ms Dubow in the Port Macquarie office. Ms Dubow also referred to evidence that the director of East Coast Law, Mr Paul Bollen, was “not unhappy” when he heard that Ms Dubow had tendered her resignation. This could refer to any number of things, including that Mr Bollen would not (following Ms Dubow’s resignation) have to continue to deal with the difficult position of one of his solicitors effectively being homeless in the town in which they were employed to work. As to an argument that termination of Ms Dubow’s employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign, Ms Dubow had the option to find alternative accommodation within a reasonable distance from Port Macquarie. Although it may be challenging to find such accommodation, it would be difficult for Ms Dubow to succeed in an argument that, as a professional solicitor of many years standing, she could not find any accommodation (at a reasonable cost) within a reasonable distance from the offices of East Coast Law in Port Macquarie.
For the reasons explained, and on the basis of the limited material before the Commission, I am of the view that Ms Dubow’s prospects of success in relation to her general protections application are weak. Having regard to all the circumstances, I consider the merits of the application to weigh against Ms Dubow’s argument that there are exceptional circumstances.
Fairness as between the person and other persons in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
I do not consider that there are any relevant matters concerning this consideration. I therefore consider this to be a neutral consideration.
Conclusion on extension of time application
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by Ms Dubow, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2).
Outcome
Ms Dubow’s general protections application is dismissed because it was lodged in the Commission more than 21 days after her alleged dismissal took effect and there are not any exceptional circumstances to warrant an extension of time being granted.
In light of my decision not to extend time for the application to be lodged in the Commission, I do not need to make findings as to whether Ms Dubow’s resignation was “forced” within the meaning of s 386(1)(b) of the Act.
DEPUTY PRESIDENT
Appearances:
Ms Y Dubow, Applicant
Mr P Moore, for the Respondent
Hearing details:
2024.
Newcastle
April 26
[1] Ex A1 at [30]
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Ex A1 at [30].
[8] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)].
[9] Ibid.
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