[2011] FWAFB 975 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
VICE PRESIDENT LAWLER |
MELBOURNE, 16 FEBRUARY 2011 |
Appeal against decision [2010] FWA 6989 of Commissioner Cambridge at Sydney on 9 September 2010 in matter number C2010/3932.
[1] This is an application for permission to appeal and, if permission is granted, an appeal against a decision of Commission Cambridge 1 on 9 September 2010 declining to extend time for, and as a consequence dismissing, the appellant’s originating application for Fair Work Australia (FWA) to deal with a general protections dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) - an application of a type described in the FW Act as a “general protections FWA application”.
[2] Pursuant to s.366(1) of the FW Act, an application under s.365 must be made within 60 days “or within such further period as FWA allows under s.366(2)”.
[3] The Commissioner’s decision to refuse an extension of time was a discretionary decision and, as such, an appeal against that decision is governed by the principles in House v The King: 2
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Background
[4] The appellant was dismissed from her employment with the respondent on 24 February 2010 and filed her general protections FWA application on 3 June 2010, 99 days after her dismissal (that is, 39 days out of time).
[5] The Commissioner set out a chronology that does not appear to be contentious:
“[5] The applicant had worked for the employer for approximately 5 months. On 24 February 2010, the applicant was advised of her termination of employment. The applicant’s dismissal occurred during a probationary period established at the commencement of the employment. The basis for the decision to dismiss the applicant involved alleged failure to meet the employer’s performance expectations.
[6] In March 2010 the applicant made a formal complaint to the Fair Work Ombudsman (FWO). Apparently that complaint was not received by the FWO.
[7] During April 2010 the applicant’s father was hospitalised for bowel cancer surgery and the applicant drove to Queensland to support her father through his illness.
[8] On about 14 April 2010 the applicant made enquiries with the FWO regarding her complaint. That agency had no record of her complaint and therefore on 19 April 2010, the applicant filed a fresh complaint with the FWO. That complaint related to the applicant’s dismissal.
[9] On 21 April 2010 the FWO advised the applicant that the aspect of her complaint that related to an alleged unfair dismissal was a matter which needed to be lodged with FWA within 14 days from the date of the dismissal.
[10] On or about 26 April 2010 the applicant lodged a letter of complaint with the Human Rights and Equal Opportunity Commission (HREOC). This complaint related to the applicant’s dismissal and other matters regarding her employment.
[11] On or about 7 May 2010 the applicant was advised that as a consequence of investigations by the FWO, an underpayment in respect of car allowance was to be rectified. On 26 May 2010 the FWO closed the file in respect of the applicant’s complaint and advice to that effect was issued to both the applicant and the employer. That advice also stated that any unfair dismissal application needed to be made with FWA within 14 days from the date of the dismissal.
[12] In early June 2010 the applicant made telephone enquiries with FWA about the lodgement of any unfair dismissal claim. These enquiries confirmed the 14 day time limit for lodgement of any unfair dismissal claim. However the applicant was advised that she was able to apply for a breach of general protections application. Consequently the application in this matter was lodged on 3 June 2010.”
[6] It may be noted that HREOC was renamed as the Australian Human Rights Commission (AHRC) with effect from 1 January 2010.
[7] It is desirable to note two further events. On 18 June 2010 a conciliation conference was conducted by the Commissioner (we infer that the respondent consented to a conciliation occurring before the hearing of its jurisdictional objection based on the application being filed out of time). On 20 July 2010 the appellant orally withdrew her complaint to HREOC (AHRC). The appeal book contains an email from an officer of the AHRC noting:
“I understand from our discussion, that due to your proceedings in Fair Work Australia against Blue Star Group, you do not want the Australian Human Rights Commission to continue with its inquiry into your complaint. ... As we also discussed, the Commission does not have legal cases to provide you about discrimination against gay people in the workplace.”
[8] It is unclear whether that email was in evidence before the Commissioner although it is clear that the Commissioner was aware that the complaint had been withdrawn.
Section 366 and “exceptional circumstances”
[9] Section 366 provides:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.”
[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers 3 a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The decision below
[16] The Commissioner stated the following in relation to the criterion in s.366(2)(a):
“Subsection 366 (2) (a) - the reason for the delay
[22] The applicant advanced that exceptional circumstances were created by a combination of her father’s illness and technological and other problems associated with the lodgement of a claim with FWO. These factors need to be examined separately and in combination.
[23] The serious illness of a close relative would often provide a basis to establish exceptional circumstances. In instances where a (potential) applicant may have been understandably preoccupied with concern and attention for a close relative who was suffering serious illness, there would usually be an understandable acceptance that matters such as the lodgement of a general protections claim might be of second or third order priority. Consequently in this instance I would be prepared to accept that a valid reason for the delay in the lodgement was established in respect to that period connected with the applicant’s travel to Queensland to provide support for her sick father.
[24] However, two countervailing aspects relating to the applicant’s sick father need to be considered. Firstly, the period associated with the applicant’s travel to Queensland in respect of her father’s sickness only accounts for at most, a 20 day period during the overall 99 day period between dismissal and the lodgement of the application in this matter. Secondly, during the period that can be directly connected to the applicant’s concern for her father the applicant was able to successfully launch a variety of other claims and applications with various agencies.
[25] There was no evidence provided which verified the alleged technological problems that the applicant claimed prevented the successful lodgement of a claim with FWA. It did appear that the applicant was informed in about mid-March that an unfair dismissal claim needed to be filed within 14 days. In addition, the applicant would have likely received information about the impact of her short length of employment as a potential impediment to an unfair dismissal claim. During April and May the applicant successfully pursued claims with inter alia, the FWO. The finalisation of the applicant’s FWO claim stimulated further enquiries with FWA which alerted the applicant to the potential to make a general protections claim as opposed to an unfair dismissal claim.
[26] Consequently the evidence very strongly points to the reason for the delay to be more accurately associated with some ignorance about the potential for making a general protections claim. Therefore the stimulus for activating these proceedings came from “The FWA consultant” who told the applicant that she was not eligible to make an unfair dismissal claim because she had only been employed for about 5 1/2 months, but she was able to apply for a breach of general protections claim.”
[17] After considering the other matters specified in s.366(2), the Commissioner held:
“Exceptional Circumstances
[36] Having examined each of the factors contained within subsection 366 (2) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in (a) to (e) was unusual or out of the ordinary.
Conclusion
[37] In this instance the exercise of the discretion to extend time has been required in respect to a significant delay of some 39 days after a time limit of 60 days, thereby the total period between dismissal and date of lodgement was 99 days.
[38] The reasons offered for the delay were not satisfactorily supported by the evidence. Although I would be prepared to accept that the serious illness of a close relative can provide justifiable basis for an extension of time, in this case it has become clear that factors other than the illness of the applicant’s father represented the true reason for the delay in the lodgement of the claim.
[39] The claim was only made after the applicant had been informed of the longer lodgement period combined with no minimum qualifying periods permitted for general protections applications, compared with the more stringent requirements for unfair dismissal applications.
[40] Further, there was some obvious difficulty associated with the potential prospects for success of the claim. The other factors under consideration either did not significantly assist the applicant’s claim for FWA to exercise the discretion to extend time or were of neutral impact. Importantly, none of these factors had any unusual characteristic that might provide basis for a finding that exceptional circumstances existed.
[41] Consequently, in the absence of exceptional circumstances FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 366 (1) of the Act. Therefore the application must be dismissed.”
Grounds of Appeal
[18] We turn to consider the appellant’s grounds of appeal.
[19] Grounds 1, 2, 6 and 8 of the notice of appeal are contentions that the Commissioner failed to give sufficient or adequate weight to various matters. The principles governing when a failure to give sufficient weight to a relevant consideration will constitute an error correctable on appeal were set out by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Farquharson v Qantas Airways Ltd 6 and come down to the following proposition:
“In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. [Lovell v Lovell (1950) 81 CLR 513 at p 519 per Latham CJ ]”
[20] The Commissioner referred to the matters in question and clearly took them into account. We can discern nothing in the Commissioner’s decision that, consistent with the relevant principles, would justify interfering in his decision on the basis advanced by the appellant. We are not persuaded that the Commissioner’s treatment of the matters in question “really amounts to a failure to exercise the discretion actually entrusted to [the Commissioner]”.
[21] Ground 3, 4 and 5 are related and are as follows:
“(3) The Commissioner failed to give sufficient weight to the reasons for delay in filing the application in so far as the circumstances of this matter are exceptional and uncommon, whereby the Applicant was led on a course of conduct by a public body/s, the advice of which she was entitled to trust which has attributed to a delay in her ultimate application under s.365 of the Fair Work Act.
(4) The Commissioner failed take into account the fact that the Applicant was unsure of her legal rights being self represented and as a consequence the Applicant fell into confusion about the identity of the correct application and public body to make that application, which was partly attributable to the delay in making the application.
(5) The Commissioner did not take into consideration that the Applicant appears to have made this application in a confused state, believing that a claim to the Fair Work Ombudsman was in effect a claim to Fair Work Australia, and the two claims, like the two organisations, were one in the same.”
[22] To the extent that ground 3 relates to a failure to give sufficient weight to the matter specified, it is covered by our conclusion in paragraph [20] above. To the extent that ground 3 is a complaint that being misled by a public body constitutes an exceptional circumstance, we agree that this is so.
[23] In relation to ground 4, we note that the Applicant had the benefit of legal advice from her father who was a senior solicitor with a not insignificant firm of solicitors. We are not persuaded that the Commissioner failed to take account of the fact that, formally, the appellant was self-represented and not legally skilled, a common occurrence in the Tribunal. A consideration of that factor is implicit in the Commissioner’s reasons.
[24] More generally in relation to grounds 3 to 5, we note that there was no copy of the complaint made to the FWO on 19 April 2010 in the evidence before the Commissioner. Only the front page of the complaint appeared in the appeal book, apparently as ‘new evidence’ upon which the appellant wished to rely. However, it may be inferred that the complaint had a number of aspects including an allegation of unfair dismissal and an allegation of non-payment of entitlements. Apparently, that latter aspect of the complaint was investigated by the FWO and led to a further payment by the respondent.
[25] The FWO certainly interpreted the form as containing a complaint of unfair dismissal and on 21 April 2010 a standard letter was issued advising that “Complaints for Unfair Dismissal are required to be lodged with Fair Work Australia within 14 days”. Further, on 13 May 2010 the FWO officer with the carriage of the complaint advised the appellant that “as the complaint related to Unfair Dismissal a Complaint would need to lodged with Fair Work Australia.” Because the full complaint was not in evidence before the Commissioner it is unclear whether it identified that the appellant had been employed for less than 6 months and was therefore not able to make an unfair dismissal application on account of not having completed the minimum period of employment as required by s.382(a) and s.383. In any event, the appellant subsequently became aware that she was unable to make an application for an unfair dismissal remedy because she had not completed the statutory qualifying period.
[26] We accept that, generally speaking, acting on incorrect advice from a relevant government agency will constitute an exceptional circumstance for the purposes of s.366(2).
[27] The appellant’s complaint about the FWO advice appears to be that FWO should have recognised that the appellant did not have a viable unfair dismissal claim (because she had not completed the qualifying period) but that she did have a potential claim under s.365 and advised her to consider commencing an application under s.365. It is not clear on the evidence before the Commissioner that the FWO was aware that the appellant had been dismissed after only five months let alone that the FWO was in a position recognise that the appellant had a potential claim under s.365. We are not persuaded that there is a sufficient evidentiary foundation for a finding that the FWO gave incorrect advice in relation to the facts as the appellant conveyed them to the FWO.
[28] It is tolerably clear that the appellant’s essential complaint at the time of her dismissal (and, inferentially, her essential complaint to the FWO) was that her dismissal was unfair because she had been bullied and harassed and that her performance was not in fact poor as alleged by the respondent. This would have suggested an unfair dismissal application as the appropriate remedy. The appellant’s reliance on a breach of the general protections provisions became a matter of focus only after she appreciated that she did not have a viable unfair dismissal claim. In other words, it is far from clear on the evidence before the Commissioner that the FWO gave incorrect advice or an incorrect suggestion in its letter of 21 April 2010 and in associated discussions between the appellant and an officer of the FWO.
[29] More importantly, the alleged incorrect advice from the FWO does not explain a significant portion of the appellant’s delay in filing her originating application. The appellant knew by shortly after 21 April 2010 that the FWO did not deal with unfair dismissal claims, that such claims should be directed to FWA and that there was a 14 day time limit for filing an unfair dismissal claim. In other words, by shortly after 21 April 2010 the appellant knew that she was well out of time for an unfair dismissal claim. If she was operating under a continuing belief that the FWO advice was correct and that an unfair dismissal claim was the correct remedy, notwithstanding it being out of time, she should have filed an unfair dismissal claim expeditiously after 21 April 2010. 7 That did not occur.
[30] On 25 April 2010 the 60 day period for the appellant to file a general protections FWA application expired. On 3 June 2010 the appellant filed her general protections FWA application. The advice of the FWO cannot afford a proper explanation for the period of delay commencing shortly after 21 April 2010. We can see no proper explanation for that period of delay of more than a month other than ignorance of the remedy and associated time limits. That is not an exceptional circumstance.
[31] Ground 7 is as follows:
“(7) The Commissioner erred in finding at [31] by stating the application ‘did not specify the nature of the alleged contravention’. The Commissioner ought to have considered that albeit it was not formally stated in the application to Fair Work Australia on 3 June 2010 (due to the Applicant being self represented), it was highlighted in evidence provided to the Commissioner prior to the hearing and given in evidence on the hearing date of 13 August 2010 as Exhibit 1, whereby it was made clear that the Applicant was pursuing a breach of general protection claim.”
[32] The Commissioner was correct in stating that the originating application did not specify the nature of the alleged general protections contravention. At the appeal hearing the appellant was invited to point to where in her application the nature of the general protections contraventions relied upon were specified and could not do so. That is because none are in fact specified in the application or the material that accompanied it, let alone with any particularity that would allow the respondent or the tribunal to understand with any precision the nature of the general protections contraventions alleged.
[33] Grounds 9 to 14 relate to the Commissioner’s consideration of the merits of the application, one of the matters specified in s.366(2), and are as follows:
“Merits of the Applicant
(9) The Commissioner erred in having regard to evidence where no such evidence was produced, placing undue reliance on Mr Matthew Bates’ testimony.
(10) The Commissioner erred in placing emphasis on the Respondent’s evidence to which was not produced in evidence to the Commissioner by the Respondent.
(11) The Commissioner allowed extraneous matters to guide or effect his decision, whereby he allowed Mr Bates statements on the Applicant’s performance to unfairly effect his decision, particularly when there were substantial disputes of fact and no such evidence had been produced by the Respondent.
(12) The Commissioner erred in placing emphasis on the performance levels put forth by Mr Matthew Bates as being accurate as it was asserted by the Applicant as being incorrect and subject to substantial disputes of fact.
(13) The Commissioner ought not to have entertained the truthfulness of Matthew Bates evidence since there were substantial disputes of fact and no such evidence was produced other than the witness statement of Mr Bates.
(14) The Commissioner failed to take into account that the merits of the application could not be properly canvassed nor could they have been canvassed in the hearing on 13 August 2010 with any care or diligence or accuracy due to the early nature of the claim and evidence yet to be produced, particularly by public bodies.”
[34] The Commissioner’s consideration of the merits of the application was as follows:
“Subsection 366 (2) (d) - the merits of the application
[30] It would appear that this factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination. The employer submitted that there was ample evidence to establish justifiable reason for the applicant’s dismissal relating to a failure to meet reasonable performance requirements. Further, the employer mentioned that the applicant was engaged on a probationary basis and the dismissal needed to be considered in the context of performance assessments understood to be relevant to probationary periods of employment.
[31] There was an understandable tendency for the parties to contemplate this matter as if it was an unfair dismissal claim. If the extension of time was granted the determination of the matter would only occur via a general protections court application. In this context it is important to stress that the application did not specify the nature of the alleged contravention. It was only as a result of questioning by FWA that the applicant asserted that the alleged contravention involved discrimination against her on the basis of her sexual preference.
[32] The basis for any potential success of a general protections court application relating to alleged discrimination on the basis of sexual preference was not the subject of any formal evidence put before FWA. The absence of any mention of this particular alleged contravention from the application documentation meant that when that issue was revealed during proceedings the employer appeared to be genuinely surprised. The employer’s representative made strong believable assertions that he was completely unaware of the applicant’s sexual preference until such time as that had been revealed in response to questions by FWA in the proceedings.
[33] Consequently I believe that based on the limited material that had been put before FWA, the alleged contravention involving discrimination against the applicant because of her sexual preference may have only limited prospects for success.
[35] None of grounds 9 to 14 are sustained by these reasons.
[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d). The Commissioner summarised the contentions of the respondent, as was entirely proper. He neither accepted nor rejected the evidence of Mr Bates and made no findings in respect of the respondent’s contentions in relation to poor performance.
[37] Critical to a consideration of the merits in this case was the failure by the appellant to adequately particularise the general protections breaches that she alleged. The essential complaint emerging from the material attached to the originating application is one of bullying and harassment by a particular manager and unjust performance appraisals after the appellant complained to the general manager about that alleged bullying and harassment.
[38] Nowhere in the evidence or submissions before the Commissioner, including the oral submissions made during the hearing before the Commissioner, did the appellant identify how it was alleged that the respondent breached the general protections provisions of the FW Act.
[39] The Commissioner’s decision identifies the general protections breach relied upon by the appellant as discrimination on the grounds of the appellant’s sexual preference (a contravention of s.351). It seems that this was the basis advanced during the conciliation conference conducted by the Commissioner on 18 June 2010. 8 However, the appellant appears to have accepted that the relevant managers of the respondent did not know of her sexual preference and, ultimately, that claim was not pressed before the Commissioner and was not pressed at the hearing before us. A “letter of evidence” attached to an email of 29 July 2010 addressed to the Commissioner and the representative for the respondent (a document which is part chronology and part submission) states “I am will (sic) withdraw the personal discrimination claim after obtaining further legal advice regarding this issue.”
[40] That “letter of evidence”, which is about 11 single spaced pages in length, contains the following:
“Blue Star Print Group General Manager have breached of General Protection Fair Work Act (sic)
Section 340 Protections
Section 349 Misrepresentation
Division 4 Section 348 Coercion.”
[41] This is the only reference in the document to General Protections. It does not particularise how the nominated sections are said to have been breached.
[42] Strictly speaking, the Commissioner erred in focussing only on the “the alleged contravention involving discrimination against the applicant because of her sexual preference”, a claim that had been withdrawn. However, given the way in which the case was conducted by the appellant, the Commissioner’s mistake in this regard is understandable. The withdrawal of the appellant’s claim of discrimination on the ground of her sexual preference is buried the “letter of evidence”. Given the terms and structure of that document it was easily overlooked. The appellant did not correct the Commissioner when he adverted to that alleged contravention during the hearing. Indeed, the transcript before the Commissioner reveals that no coherent case on how the General Protections were breached was advanced by the appellant. The same may be said in relation to the argument before us.
[43] Nevertheless, we have considered whether a consideration of the provisions identified by the appellant in her “letter of evidence” could have led to a different outcome.
[44] Sections 348 and 349 are as follows:
“348 Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see Part 4-1).
349 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person’s obligation to engage in industrial activity;
(b) another person’s obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
[45] The factual contentions in the appellant’s evidence and submissions before the Commissioner have nothing whatever to do with industrial activity or any misrepresentation in relation to an obligation to engage in industrial activity or to make a disclosure of the sort referred to in s.349(1)(b). In short, there was no material whatever before the Commissioner which, if accepted, was capable of making out a breach of s.348 or s.349.
[46] Section 340 provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[47] The meaning of “workplace right” is relevantly defined in s.341(1):
“Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
[48] As noted, it became apparent during the appeal hearing that the alleged breach of s.340 was based on the complaint of bullying and harassment against Mr Bates made by the appellant to the general manager. Section 340 would have been breached if the respondent took adverse action of a kind specified in item 1 in the table in s.342 (in this case, dismissal) because the complaint to the general manager amounted to the exercise of a “workplace right” within the meaning of s.341(1)(c)(ii).
[49] The issue is whether the criterion in s.341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it not and that s.341(1)(c)(ii) contemplates that the employee is “able” to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. However, the appellant made no submissions on s.341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.
[50] For present purposes it is sufficient to note that on the material before the Commissioner, he was not in a position to assess the factor in s.366(2)(d) as favourable to the appellant. It should be apparent that we agree with the Commissioner’s conclusion that the appellant only has limited prospects of success on her general protections application, albeit for different reasons.
[51] Ground 15 is as follows:
“Prejudice to the Employer
(15) The Commissioner ought not to have entertained the Respondent’s suggestion that the Applicant acted with a level of vexatiousness so as to prejudice the Respondent [at 29], as the Applicant being self represented acted on advices received from public bodies, those of which she was entitled to trust, and that after the Applicant received the correct advice as to the correct application, the Applicant took immediate action to complete and lodge a corrected application to the correct public body being Fair Work Australia.”
[52] The Commissioner’s reasons on the topic were as follows:
“Subsection 366 (2) (c) - prejudice to the employer (including prejudice caused by the delay)
[29] The employer suggested that as it had been required to defend the various other matters that the applicant had initiated, there was considerable “overlap” in respect of the issues that underpinned the various complaints made by the applicant. There was implicit in the employer’s position, a suggestion that the proceedings were being initiated by the applicant with a level of vexatiousness and therefore the employer suggested it would be prejudiced if it was required to defend a further claim.”
[53] The very point of a probationary period or, more particularly, the minimum period of employment required by s.382(a) and s.383 of the FW Act, is that an employer should be able to dismiss an employee if the employer is dissatisfied with the employee’s performance during that period without being exposed to an unfair dismissal claim - and not have to face an argument about whether its assessment of poor performance is justified.
[54] The appellant, having been dismissed after some five months of employment and before the expiry of her probationary period (and the qualifying period in the FW Act):
[55] In circumstances where the respondent was contending that it had substantial evidence that the appellant’s performance was poor such that it was entirely proper to dismiss her during her probation period, it is hardly surprising that the respondent made the submission recorded by the Commissioner. Be that as it may, the Commissioner did not in fact make an express finding that the appellant was vexatious. To the extent that the Commissioner should be taken as having accorded some weight to the Respondent’s submission, we are not persuaded that he was necessarily wrong in doing so.
[56] At this point some mention should be made of s.725 of the FW Act which provides:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
[57] Sections 727 and 732 are as follows:
“727 General protections FWA applications
(1) This section applies if:
(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
[58] There is no dispute that the appellant’s complaint to AHRC related to the appellant’s dismissal. Although no copy of the complaint was in evidence, the complaint must have been made under the Australian Human Rights Commission Act 1986 9 and, as such, is a complaint that comes within the description in s.732. The complaint did not fail for want of jurisdiction and no certificate under s.369 had issued in relation to the appellant’s general protections FWA application. However, the complaint was withdrawn by the appellant on or about 20 July 2010, that is, some time after she lodged her general protections application but before the hearing at first instance.
[59] Thus, the undisputed facts of this case raise an issue as to whether, as a result of the appellant lodging a complaint with the AHRC on 26 April 2010, Fair Work Australia had no jurisdiction in relation to the appellant’s general protections FWA application because of the operation of s.725 in combination with sections 727 and 732, notwithstanding the fact that the AHRC complaint was withdrawn shortly before the extension of time hearing was held.
[60] The resolution of that issue turns on whether the reference to “make an application or complaint” in s.725 is directed to the point in time that an application or complaint is lodged or whether it has an ambulatory operation and is concerned, on its true construction, with the point in time when the operation of s.725 falls to be considered in any given case (that is, an application is properly considered as being “made” while ever it is being pressed). The possible application of s.725 was raised by this bench for the first time during the hearing of the appeal and neither party was properly prepared to argue it. Given that we have decided in any event that permission to appeal should be refused we have decided against expressing a view on that issue in the absence of considered argument.
[61] Ground 16 is as follows:
“Fairness as between the person and other persons in a similar position
(16) The Commissioner erred in finding that at [34], ‘evidence was produced by the employer that suggested that other employees who had failed to make their sales targets were treated similarly to the applicant’, as the only evidence produced and relied upon by the Commissioner was that of a witness statement of Matthew Bates, the supervisor who the Applicant had issues of bullying and harassment with. On this point, the Commissioner ought to have considered that there were substantial disputes of fact as asserted by the Applicant contrary to the Respondent’s assertions made, and the fact that this evidence has yet to be canvassed or produced to the Fair Work Australia by either the Respondent or the Applicant.”
[62] The Commissioner’s reasons on the topic were as follows:
“Subsection 366 (2) (e) - fairness as between the person and other persons in a similar position
[34] There was evidence provided by the employer that suggested that other employees who had failed to make their sales targets were treated similarly to the applicant. These other employees were not serving a period of probation at the time at which the employer raised complaint with them about a failure to meet sales targets. Disciplinary action in the form of written warnings and performance improvement programmes were apparently implemented in respect of these employees.
[35] It is difficult to assess this factor particularly as the basis for the applicant’s complaint has been revealed to relate to her sexual preference. It is difficult to contemplate an assessment with respect to these other employees without some evidence of their sexual preferences. In the absence of any detailed evidence about the treatment of other employees who may or may not have been in a similar position to the applicant I have decided to treat this factor as being neutral.”
[63] For the reasons given in paragraph [35], the Commissioner did not act on the observations in paragraph [34]. However, the Commissioner was in fact correct to treat the criterion in s.366(2)(e) as neutral: the evidence in question did not relate to employees in a similar position to the appellant because none of those employees was still within their probationary period.
Conclusion
[64] In our view, in the particular circumstances of this case and for the reasons given above, the Commissioner was correct not to regard the advice given by the FWO - or, more precisely, the failure of the FWO to give advice about the possibility of a general protections FWA application - as an exceptional circumstance that justified an extension of time. Even if it be accepted that the FWO gave incorrect advice in response to the appellant’s complaint (a matter that is far from clear), that incorrect advice does not explain the appellant’s delay in the period from late April 2010 to 3 June 2010.
[65] One of the matters relied on by the appellant was the need to travel to Queensland to support her father who had to undergo surgery for a very serious illness. The Commissioner was (correctly) satisfied that this constituted an exceptional circumstance but concluded that it accounted for, at most, 20 days of the period between dismissal and the filing of the general protections FWA application. It is apparent from the Commissioner’s reasons that he was not satisfied that there was a satisfactory explanation for the balance of the delay and that, consequently, the discretion to extend time should not be exercised in favour of the appellant.
[66] We are not persuaded that the Commissioner’s decision is affected by an error that would have altered that outcome. In our view the Commissioner reached the correct conclusion on the material before him. On that material we would reach the same conclusion.
[67] In all the circumstances we have come to the view that permission to appeal should be refused and we do so.
VICE PRESIDENT
Appearances:
C. Nulty on her own behalf.
K. Stenner for Blue Star Group Pty Ltd.
Hearing details:
2010.
Sydney:
October 27.
2 (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ
4 [2007] FCA 388 (27 March 2007)
5 at paras [23]-[27]
6 (2006) 155 IR 22 at [35] - [36]
7 Transcript at PN273ff
8 See Transcript at PN296-7 - the reference to “first hearing” would appear to be a reference to the conciliation conference on 18 June 2010.
9 See s.46P - and the appellant conceded as much during oral submissions at the appeal hearing.
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