Zengjing (Helen) Wang v Northern Beaches Council

[2020] FWC 5488

[2020] FWC 5488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 773—Termination of employment

Zengjing (Helen) Wang
v
Northern Beaches Council
(C2020/2932)

DEPUTY PRESIDENT SAMS SYDNEY, 16 OCTOBER 2020

Application alleging unlawful termination dispute - Council Project Specialist - employee employed under a NSW State Award - employee on probation - dismissal for an unlawful reason said to be the filing of a complaint against the employer - three jurisdictional objections to application - application lodged ‘out of time’ - employee not a national system employee - employee on probation - ‘out of time’ objection determined ‘on the papers’ - usual principles in ‘out of time’ application applied - reason for delay not accepted - prospects of success remote - ‘exceptional circumstances’ not made out - extension of time refused - application dismissed.

INTRODUCTION

[1] On 26 April 2020, Ms Helen Wang (the ‘applicant’) filed an application, pursuant to s 773 of the Fair Work Act 2009 (the ‘Act’), alleging an unlawful termination dispute (the ‘dispute’) as a consequence of her dismissal by Northern Beaches Council (the ‘Council’) on 3 April 2020. Ms Wang commenced employment with the Council on 9 January 2020 in the position of People Central Project Specialist, on a salary of $115,304.40 per annum plus superannuation. Ms Wang’s contract letter of offer, dated 23 December 2019, specified an end date of 6 January 2021, but also provided that ‘[i]f for operational or other reasons, it is necessary to terminate before this date, you will be given notice in accordance with the Award’ (the Local Government (State) Award NSW) (the ‘Award’). The contract also provided for a probation period of three months in accordance with the Council’s Probation Operational Policy and Procedures.

[2] Ms Wang’s unlawful termination dispute application cited the unlawful reason for her dismissal as ‘the filing of a complaint against an employer involving the alleged violation of laws or regulations or recourse to competent administrative authorities’ (s 772(e)). The complaint referred to was a formal complaint made by Ms Wang on 27 March 2020 to the Council’s Office of Integrity, alleging fraudulent behaviour on the part of her manager, Ms Clare Arundel. In the Council’s reply to the application, three jurisdictional objections were raised as to a challenge to the Commission’s powers to deal with the matter. These were:

‘1. As a Local Government body, Northern Beaches Council is covered by the NSW Industrial Relations Act 1996 as opposed to the Fair Work Act 2009. The Fair Work Commission does not have jurisdiction to conciliate or arbitrate on a matter covered by the Industrial Relations Act 1996. This is covered by the NSW Industrial Relation Commission.

2. Additionally, the applicant has made application outside the requisite 21 day period. Ms Wang’s services were terminated on 3 April 2020, her application was received on 28 April 2020.

3. Furthermore, Ms Wang was employed by Northern Beaches Council on a fixed term contract commencing 9 January 2020, and was on a probationary period at the time of her termination.’

[3] In accordance with the Commission’s limited powers under Part 6-4 of the Act, I convened a conference of the parties on 11 May 2020. The dispute was unable to be resolved and was adjourned in order for Ms Wang to seek legal advice. The Commission was subsequently advised the applicant intended to pursue her application and requested the Commission to exercise its discretion, pursuant to s 774(1)(b) of the Act, to extend the time for filing her application under s 774(2) as to ‘exceptional circumstances’. It is common ground that the application was filed two days late. The Commission issued directions for a hearing of the ‘out of time’ application and subsequently, with the consent of the parties, decided to determine the matter ‘on the papers’. I note the applicant’s submissions and evidence dated 14 July 2020, were prepared by Mr H Pararajasingham, Solicitor, Gorval Lynch, and the Council’s submission and evidence dated 30 June and 21 July 2020, were prepared by Ms E Radley, Partner, Moray & Agnew Lawyers. Statement evidence was filed from Ms Wang and Ms Karen Twitchett, the Council’s Director – Workforce and Technology.

Relevant statutory provisions

[4] At this juncture, I set out the relevant statutory provisions governing applications of this kind, and specifically s 774 dealing with ‘out of time’ applications in Part 6-4. They state as follows:

772. Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;

(c) non-membership of a trade union;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) absence from work during maternity leave or other parental leave;

(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

773. Application for the FWC to deal with a dispute

If:

(a) an employer has terminated an employee's employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee's employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

774. Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under subsection (2).

(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 employee to dispute the termination; 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.

SUBMISSIONS

[5] After referring to the chronology of events and the relevant statutory provisions, Mr Pararajasingham dealt with each of the criteria in s 774(2). As to the reason for delay, Ms Wang contends that her application was filed out of time as she was awaiting the outcome of an Internal Review (the ‘Review’) of her dismissal, and held a mistaken belief that if the Review was unsuccessful, she could refile her proceeding after having discontinued her earlier application on 20 April 2020. The applicant’s evidence was that an unnamed person at the Commission advised her to do so. Mr Pararajasingham noted that the applicant is wholly unfamiliar with the tenets of Australian employment law, and has difficulty comprehending English.

[6] Mr Pararajasingham submitted that the applicant’s delay was not caused by any dilatory conduct, but by Ms Wang’s desire to resolve the issues without litigation, and she acted in good faith by hoping to preserve the employment relationship. He said that this case was distinguished from the facts and circumstances of Prasad v Alcatel-Lucent Australia Ltd [2011] FWAFB 1515.

The Council’s response

[7] Ms Radley submitted that the applicant’s reason for the delay was not credible. The following timeline was relevant:

‘(a) at 4:24pm on 17 April 2020, Council notified Ms Wang that it anticipated finalising its internal review into her dismissal by 24 April 2020;

(b) at 8:10pm on 17 April 2020 – less than four hours after receiving Council’s notification referred to in paragraph (a) above – Ms Wang filed an initial application under s 773 of the Act (Initial Application);

(c) at this time, Ms Wang was aware of the 21 day time limit for filing an application under s 773 of the Act, and claims to have lodged the Initial Application because Council “continued to delay the outcome” of its internal review;

(d) on 20 April 2020, the Initial Application was discontinued despite none of Ms Wang’s stated concerns being in any way resolved by the internal review process at that time;

(e) at 3:14pm on 24 April 2020, Council notified Ms Wang of the outcome of its internal review into her dismissal, with the timing of this communication aligning with that previously foreshadowed to Ms Wang;

(f) at 3:58pm on 26 April 2020 – more than 48 hours after receiving Council’s notification referred to in paragraph (e) above – Ms Wang filed the Application; and

(g) the Application’s F9 form was in substantially identical terms to the Initial Application’s F9 form, with the only differences of substance being:

(i) at item 2.3, in respect of timing, Ms Wang added two brief dot points to address her delay in filing the Application; and

(ii) at item 4.1, in respect of remedies, Ms Wang added a short reference to it taking longer than normal to find another job due to COVID-19.’ (footnotes omitted)

s 774(2)(b) - Any action taken by the employee to dispute the termination

[8] Mr Pararajasingham relied on Ms Wang’s lodgement of the Review and her initial unlawful termination application, as demonstrating the applicant’s prompt attention to disputing her dismissal.

The Council’s response

[9] Ms Radley submitted that the fact the applicant took steps to review the decision and filed an initial application, do not of themselves constitute ‘exceptional circumstances’ and her late filing does not demonstrate ‘promptness’ in filing this application.

s 774(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[10] Mr Pararajasingham observed that a two-day delay, and the fact the Council did not identify any actual (only potential) prejudice, tells in favour of Ms Wang.

The Council’s response

[11] Ms Radley submitted that there was potential prejudice to the Council if the application was accepted out of time. She noted that even if actual prejudice is not identified, the mere absence of prejudice is an insufficient basis to grant an extension of time; see: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (‘Brodie-Hanns’).

s 774(2)(d) - The merits of the application

[12] Mr Pararajasingham submitted that the applicant’s claim is highly meritorious. She had been dismissed for complaints she raised against Ms Arundel, her Manager, in February 2020. These complaints related to her not being allocated tasks aligned to her position, and having not been invited to Team workshops and meetings. These actions were in breach of her contract of employment and the Award.

For the Council

[13] Ms Radley submitted that there is no merit in the applicant’s claim as:

(a) Ms Wang’s allegations are not complaints or grievances alleging breaches of laws or regulations under s 772(1)(e).

(b) Ms Wang’s 27 March 2020 complaint could not have been a reason, let alone an unlawful reason, for her dismissal, because it was lodged after she was informed of her termination of employment.

(c) Ms Wang has failed to disclose or identify any complaint or participation in proceedings of a nature contemplated by s 772(1)(e).

(d) The decision to dismiss Ms Wang was because:

‘(a) her skillset and expertise was not consistent with the expertise required for the People Central Project Specialist role as part of the Project;

(b) Council's Payroll team had no requirement for work to be performed by Ms Wang, such that relocating her to Council’s Payroll department was not an option;

(c) Ms Wang's skills and experience were not required in any other part of Council's operations; and

(d) for no other reason.’

[14] These reasons and the direct evidence of Ms Twitchett are reliable and discharge the reverse onus of proof; see: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 342 and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150.

s 774(2)(e) - Fairness as between the person and other persons in a like position

[15] Both parties accept this factor is a neutral factor in this case.

CONSIDERATION

Relevant principles and applicable authorities

[16] Applications under Part 6-4 Division 2 of the Act are relatively rare. In the last reporting year, 2018/2019, the Commission had received only 127 such applications (98% of which were settled in conciliation), compared to 13,928 unfair dismissal applications and 4,508 general protections disputes involving dismissal (Source – Annual Report – Fair Work Commission 2018/2019). Relevantly, all three areas of the Commission’s jurisdiction have a time limit of 21 days for the filing of an application and provisions allowing the Commission to exercise a discretion to extend the time for filing, where the Commission is satisfied that ‘exceptional circumstances’ exist, taking into account a number of factors.

[17] Section 366 of the Act deals with these factors in a general protections dispute, which contain exactly the same criteria in s 774(2), and in unfair dismissal matters, s 394(3) replicates the same criteria and adds one more – s 394(b) – ‘whether the person first became aware of the dismissal after it had taken effect’.

[18] With this in mind, and given that one principle of statutory construction requires that words or phrases which appear in different sections of an Act are taken to have the same meaning, unless the contrary intention is expressly stated, it is apposite to have regard to decisions of the Commission which have considered the meaning of ‘exceptional circumstances’.

[19] In Tamu v Australia for UNHCR [2019] FWCFB 2384, a Full Bench of the Commission (albeit in s 366(2) of the Act) summarised the relevant principles to have regard to in applications of this kind, at [16] – [20] as follows:

‘[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time 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 like position.”

[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted)

[20] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, the High Court said at para 19:

‘19. "Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.’

[21] It must also be stressed that a finding of ‘exceptional circumstances’ is a classic exercise of discretion, as is apparent from the inclusion of the word ‘may’ in s 774(2). The discretion is only enlivened if the Commission is satisfied there are ‘exceptional circumstances’. That test has been said to be a ‘high hurdle’ for an applicant to overcome when seeking an extension of time; see: Qantas Airways Limited v McRae [2017] FWCFB 4033. However,in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, Lawler VP concluded that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’, in that it would be sufficient for an applicant to meet the relatively high hurdle of ‘exceptional circumstances’ where one, or more, or in combination of the criteria in s 394(3) establishes circumstances which are ‘unusual, out of the ordinary, special or uncommon.’

[22] More recently, in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 (‘Stogiannidis’),a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 which had concluded that in order for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. Until that time, this approach had been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [38]-[40]:

‘[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

See also: Cannon v Quad Services [2019] FWCFB 2097.

[23] I turn now to each of the matters the Commission is required to take into account in order to be satisfied that the applicant has established ‘exceptional circumstances’ for the late lodgement of this application.

[24] At the outset, it is necessary to stress firstly, that the onus for establishing ‘exceptional circumstances’ rests on the applicant and secondly, even if the respondent does not object to the application being accepted ‘out of time’, the Commission cannot accept such an application unless the applicant’s onus is established to the satisfaction of the Commission. In other words, consent to jurisdiction is not determinative.

s 774(2)(a) - The reason for the delay

[25] Ms Wang submits that she was waiting for the Review to be finalised before finalising her s 773 claim. In my view, this reason is not credible and is inconsistent with the applicant’s own evidence.

[26] Firstly, Ms Wang had lodged an earlier unlawful termination application on 17 April 2020, less than four hours after being advised that the Review would be completed by 24 April 2020. This is inconsistent with her claim that she was awaiting the outcome of the Review before lodging her claim.

[27] Secondly, the applicant had lodged her first application being fully aware there was a time limit of 21 days for doing so.

[28] Thirdly, it is somewhat disingenuous for Mr Pararajasingham to place weight on Ms Wang’s unfamiliarity with Australian workplace law and difficulty comprehending English, when in her own statement, Ms Wang said, ‘I was aware that an application for an Unlawful Termination had to be filed with the FWC within 21 days of dismissal’, and in fact, had already filed such an application.

[29] Fourthly, by email dated 3:14pm on 24 April 2020, Ms Wang was advised the Review was complete, her allegations were found unsubstantiated and told ‘Council now considers the matters closed and no further action will be taken’. In other words, Ms Wang knew the Review was complete two days before she refiled her application, in virtually the same terms as her discontinued first application.

[30] Fifthly, it is not unusual for some employers to have an internal review policy of a decision made to dismiss an employee. It is a risky strategy for the employee to await the outcome of the Review based on a hope they will be vindicated, and the decision reversed. At best, the filing of an application within time, with the hope of a favourable outcome, does not jeopardise a claim being lost if the result is unfavourable. It is a simple process to discontinue the application, as the applicant had already done with the first application.

[31] Sixthly, Ms Wang does not appear to be a ‘shrinking violet’ when pursuing her workplace rights and insisting on formality and procedural fairness. I note she claims that an unnamed person told her to discontinue her first application. Given Ms Wang’s knowledge and willingness to pursue her rights, I find it improbable that she did not record the name of the Commission staff member. Moreover, from my knowledge of the Commission’s Registry staff, it would be highly unlikely advice of the kind Ms Wang says she was told, was offered or even suggested.

[32] For these reasons, I find that this criterion tells against a finding of ‘exceptional circumstances’ being established.

s 774(2)(b) - Any action taken by the employee to dispute the termination

[33] I accept Ms Wang took two steps to contest her dismissal. However, this works both ways. If Ms Wang was said to be prompt in seeking a Review and filing her first application, it ‘begs the question’ why she was not prompt and cautious in ensuring her contesting of the outcome of dismissal was not attended to by filing this application within time.

[34] Nevertheless, I am prepared to treat this factor as a neutral consideration in this case.

s 774(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[35] The Council did not identify any actual prejudice but submitted it may be subject to potential prejudice. As both parties relied on Brodie-Hanns, I intend to apportion no weight to this criterion.

s 774(2)(d) - The merits of the application

[36] In considering the merits of the substantive application, the Commission is not in a position to make findings of fact on contested issues. This is particularly so in unlawful termination applications, where the Commission’s only function under Part 6-4 is to convene a conference and, in the event of unsuccessful conciliation, issue a s 776(3) Certificate to that effect. This crucial step triggers the capacity of the applicant to pursue his/her case in the Federal Circuit Court of Australia or the Federal Court of Australia. That said, I refer to the observation of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[37] In Kornicki v Telstra-Network Technology Group AIRC Print P3168 22 July 1997, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) 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 merits of the substantive application for relief in the context of an extension or 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.’ (my emphasis)

[38] I do not apprehend, that the Council has abandoned its two other jurisdictional objections to Ms Wang’s application; see: [2] above. For convenience, the parties have agreed that the ‘out of time’ issue should be determined first. That said, I have my own reservations as to whether the Commission has jurisdiction on these other grounds, and intend to make some preliminary observations only.

[39] Mr Pararajasingham submitted that the applicant’s claim is highly meritorious because she had been dismissed for not being allocated tasks aligned to her position and was not invited to Team meetings. In my view, there is a rather large disconnect between a relatively routine employment complaint about an employee not being allocated tasks she believed she could have been allocated or being excluded from Team meetings, and the stated unlawful reason in s 772(1)(e) of the Act. On another view, if there is a claim of a breach of her contract or the Award, then s 773 of the Act is not the vehicle for such a claim. In any event, Ms Wang’s allegations were reviewed and found to be without substance. She presumably does not accept that conclusion.

[40] My prima facie view is that Ms Wang’s allegations are not complaints or grievances alleging a breach of laws of regulations. Rather, in her own words, she refers to adverse action. This is not a factor in an unlawful termination dispute.

[41] Further, to the extent a formal integrity complaint about Ms Arundel on 27 March 2020 may be a complaint contemplated by s 772(1)(e) of the Act, it is no coincidence that this was the same day after Ms Wang was informed her employment was to be terminated. Leaving aside the inference of what this ‘coincidence’ would seem to imply, it could not possibly have been a basis for termination of employment, because her complaint was made after she was told of her termination.

[42] In addition, it would appear Ms Wang’s claim that the Council had dismissed her in breach of its own probation procedures was misconceived, given that the policy did not apply to her.

[43] Finally, there may still remain a fundamental jurisdictional hurdle to Ms Wang being able to bring such a claim under the Act, when in her own case, it is not in dispute she was engaged under the Award, an instrument established under the Industrial Relations Act 1996 (NSW), and that the Council is not a national system employer for the purposes of the Act.

[44] For these reasons, I consider the merits of Ms Wang’s application are poor, and her prospects of success are remote, at best. This factor tells against the granting of an extension of time.

s 774(2)(e) - Fairness as between the person and other persons in a like position

[45] It is common ground that this is a neutral factor in this case. I agree with this designation.

CONCLUSION

[46] Taking into account all of the matters in s 774(2) of the Act, I am satisfied that whether viewed either individually or collectively, no ‘exceptional circumstances’ have been established. Three criteria are neutral and two important criteria – reasons for the delay and the application’s merits – tell against a finding of ‘exceptional circumstances’.

[47] Accordingly, I decline to exercise my discretion to extend the time for the filing of this application. Application C2020/2932 is therefore dismissed.

DEPUTY PRESIDENT

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