[2012] FWA 9043

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Alicia Atkinson
v
Vmoto Limited; Yi (Charles) Chen; Trevor Beazley
(C2012/3634)

COMMISSIONER SPENCER

BRISBANE, 26 OCTOBER 2012

Alleged contravention of Part 3-1 - out of time - s.366(2)

Introduction

[1] The Applicant, Ms Alicia Atkinson, made an application to Fair Work Australia (FWA) pursuant to s.365 of the Fair Work Act 2009 (the Act) claiming a contravention of the general protections provisions of the Act, involving the termination of her employment by Vmoto Limited (the First Respondent/the Employer), Mr Yi Chen (the Second Respondent) and Mr Trevor Beazley (the Third Respondent) (generally, “the Respondents”).

[2] The application for relief must be made within 60 days after the dismissal took effect (s.366(1)(a) of the Act). In accordance with section 366(1)(b), FWA may allow, under section 366(2), an application within a further period that is determined by FWA. FWA may extend the time for making the application, if it is satisfied that there are exceptional circumstances taking into account certain specified matters, as set out in section 366(2).

[3] The date of the dismissal was 11 August 2011. The Application was lodged on 2 May 2012, 202 days after the dismissal, therefore 142 days out of time. At the time of the dismissal, the Applicant was working at Vmoto Limited, on the Gold Coast. The Applicant had been employed by the Respondent since 15 December 2010.

[4] Directions were set by FWA for the determination of the jurisdictional issue, and the parties were requested whether they required a hearing. The parties filed their material, and whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered. A hearing was held in Brisbane, a further matter emerged at the hearing, the parties requested to file additional submissions. Further directions were set for these additional submissions.

[5] The Applicant was represented by Mr Dwyer, of Counsel, instructed by Mr Muller of QBM Lawyers. The Respondents were represented by Mr Amerena, of Counsel, instructed by Ms Leung of Austin Haxworth and Lexon.

Background

[6] A number of matters arising from the employment relationship between the Applicant and the first Respondent have been the subject of much disputation. Various matters have been the subject of extensive correspondence between the parties and at times before the Queensland Courts and now FWA. The following is a brief summary of the events leading to the s.365 application, the subject of this Decision.

[7] The Respondent’s business undertakes the manufacture and sale of electric scooters. The registered office of the business is in Perth. The manufacturing plant and operations are based in Lishui, China. The Applicant was employed by the First Respondent as its Chief Operations Officer, commencing on 25 January 2011.

[8] In April 2011, the Applicant raised the following matters of concern with the Respondents:

[9] On 14 April 2011, Mr Chen (a Director) notified the Applicant in writing that if certain matters, with respect to the discharge of the contract, did not occur within 5 business days, it would be deemed the Applicant had resigned. On 18 April 2011 representatives for the Applicant notified the Respondent, that the Applicant’s salary had not been paid. The Applicant suggested that the issues that had arisen between them be mediated. On 19 July 2011, Mr Chen noted that the salary would not be paid to the Applicant, until completion of the proposed mediation.

[10] Following these exchanges the Applicant caused to be served, on or about 5 August 2011, upon the Respondent, a statutory demand (dated 2 August 2011) for the outstanding wages which had been withheld in accordance with Mr Chen’s advice on 19 July 2011. The Respondent submitted that this was discharged by issuing a cheque dated 11 August 2011 forwarded to the Applicant under a covering letter of 16 August 2011. The material now before FWA shows that on 11 August 2011, the Respondents gave the Applicant notice of termination of her employment. No reason was provided on this notice.

[11] The Applicant made certain claims arising out of the termination of her employment, specifically relating to contractual entitlements she claimed arose under the contract of employment. Such claim was initiated by issuing a further statutory demand, dated 8 September 2011, this time for amounts owing in relation to notice payments.

[12] The Applicant’s contract of employment included the following clause 18:

[13] Part 8 of Schedule 1 states:

[14] In September 2011 this further statutory demand formed the basis of a winding up application in the Supreme Court. This action was dismissed by Chief Justice de Jersey with costs against the Applicant, which were not awarded because, the Respondent failed to file the required costs material within time.

[15] Further proceedings were commenced by the Applicant in October 2011, in the District Court claiming payment of the contractual entitlements as a debt. The statement of claim in that matter was struck out in March 2012 with the Court finding that the termination did not give rise to an obligation to pay a debt.

[16] The Applicant lodged the current matter with Fair Work Australia on 2 May 2012 and the Respondent filed the jurisdictional objection with FWA on 23 May 2012, in relation to the matter being lodged out of time.

[17] The Applicant primarily contended that the First Respondent contravened s340(1)(c)(ii) by dismissing the Applicant, after she had endeavoured to enforce a ‘workplace right’; that is the right to be paid wages in relation to her employment.

[18] The Applicant submitted that the Second and Third Respondents had also contravened s340 by virtue of s550 as they had:

Relevant legislation

[19] The relevant sections of the Act are as follows:

Summary of Submissions on behalf of the Applicant

[20] The Applicant submitted that one of the reasons for the delay in filing the Application was due to initiating civil action for the recovery of the debt (associated with the dismissal), through the Courts. The Applicant also submitted that the delay was due to representative error. The Applicant submitted that she was not advised of her rights in relation to the general protections provisions in the Fair Work Act 2009 (Cth). The Applicant further submitted that soon after the Judgment was issued by the District Court, she learnt of this option and then initiated this matter before FWA.

[21] The Applicant submitted that she took immediate action against the non-payment of her salary, and then the resulting termination of her employment in accordance with legal advice; however not before FWA. The Applicant noted that these actions mitigated the prejudice that may be caused against the employer because the Respondents have been on notice of the allegations during the period since from her dismissal.

[22] It was agreed that the Applicant was jurisdictionally barred from filing an unfair dismissal application. The Applicant submitted that she had acted in good faith in commencing the earlier proceedings before the Court to pursue firstly, the unpaid wages, a right arising from her employment, and later termination moneys, and accordingly, she should not be prevented from now commencing proceedings before FWA. It was submitted that when she became aware of such a right via further legal advice, she acted promptly to file the application.

Summary of Submissions of the Respondent

[23] The Respondents (in summary terms) submitted that the application is without substance. The Respondent denied, as is alleged, by the Applicant that she was dismissed due to her issuing the statutory demand for payment of overdue wages. The Respondent submitted that the dismissal was based on the pre-existing dispute regarding the Applicant’s refusal to attend to her duties in China as per her contract.

[24] The Respondents stated that their prompt response in meeting the statutory demand counteracts this as a reason for the dismissal and demonstrated that the Respondents accepted that the Applicant was entitled to the wages and to demand and be paid such. At the time of the dismissal, the Applicant had not been paid the wages.

[25] The Respondents also argued that the demand for these wages was made pursuant to her contract of employment, and that a contract of employment did not provide a benefit under a ‘workplace instrument or order made by an industrial body’. Nor was the benefit established under the National Employment Standards and therefore the application does not fall within s340 or s341 of the Act.

[26] Further the Respondents argued that the process of making a statutory demand does not equate to a complaint or inquiry or a process or proceeding under a workplace law or within the meaning of s341(1)(c) of the Act.

[27] The Respondents denied that the summary dismissal; represented adverse action related to the service of the first statutory demand. The Respondents submitted the summary dismissal was based on serious misconduct in respect to the Applicant not meeting her contractual obligations. The Respondent also argued that the Applicant had engaged in a deception and misled the Respondent to obtain the employment contract and that this contributed to the dismissal.

Multiple applications

[28] During the course of proceedings, in relation to the extension of time, a question was raised by FWA with the parties regarding the possible application of the provisions of the Act dealing with multiple applications.

[29] The relevant sections of the Act in relation to multiple actions are:

[30] Further Directions were issued at the conclusion of the Hearing to enable the filing of further submissions in relation to the application Part 6-1, Division 3, Subdivision B of the Act.

[31] The Applicant primarily submitted in this regard that the previous Court proceedings, were applications made in accordance with common law principles and that for the purposes of s.732 were not an ‘application or complaint under another law’ (emphasis in original).

[32] In this regard her Honour DCJ McGinness found:

[33] This is no doubt in reference to the statement of claim in matter D460/11 of the District Court of Queensland which claims the following relief:

[34] The Respondent contended that in properly construing Part 6-1 FWA should give a purposive interpretation consistent with the text of the Act taking into account the Act as a whole, the general law and precedent and extrinsic material (where permissible). In doing so it was submitted that the phrases regarding “another law”, “a law of the Commonwealth (other than this Act)” and “a law of a State or Territory” are not defined but that in general parlance these are words of wide scope that comprehend both legislation and common law. The Applicant’s submission that the Court proceedings were based on common law “principles”, it was said, disguises the fact that common law has the force and effect of law. 6

[35] Further it was also submitted that the previous actions were, when properly viewed, in relation to the dismissal. In this regard the Respondent also points to the pleadings in the Court proceedings which specifically pleaded the termination as giving rise to the action. The Respondent submitted that the decision of Deputy President Bartel in Cook v ACI Operations Pty Ltd 7 which was relied upon by the Applicant, was not authority for the proposition that the phrase “in relation to the dismissal” should be read narrowly.

[36] In regard to multiple applications the Explanatory Memorandum to the Act provides:

[37] Section 733 allows for a separate application to be made in pursuit of a benefit to which the dismissed person is entitled to, as result of the dismissal. The Applicant was pursuing the entitlements available to her as a consequence of the termination that she alleged was without cause as per clause 18.1.

[38] Whereas in contract the s.365 application relates to the Respondent’s response to the Applicant’s complaint, regarding the non-payment of wages, by way of the statutory demand for wages, which is a separate matter.

Considerations

[39] Section 366(2), sets out the matters to be taken into account to ascertain whether exceptional circumstances exist in order to extend the period of time for making the s.365 application.

The reason for the delay

[40] The Applicant submitted that the reason for the delay was that the Applicant considered (based on legal advice) that a remedy lay in a civil action for the debt related to monies owing on termination. It was further argued on behalf of the Applicant, that this was a case akin to representative error.

[41] It was submitted by Counsel for the Applicant that the representative error, amounted to an exceptional circumstance:

[42] The Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 9 assessed the terms of s.366, the late filing of a s.365 application, which was predominantly due to representative error.

[43] In that decision the Full Bench stated:

[44] The Full Bench in D La Rosa v Motor One Group Pty Ltd 14 noted the following extract in regard to representative error causing a short delay as per the current circumstances:

[45] In assessing representative error in the current matter, in cross-examination Counsel for the Respondent pressed the Applicant in relation to the initial instructions given to her legal advisors at the time of termination. The following exchange took place between Counsel for the Respondent and the Applicant:

When you were dismissed, did you seek advice from your solicitor?---Yes. 16

...

Can you tell me - I know it may be difficult, but do the best you can just to tell me the words, and if you can’t remember the exact words the effect of the words, as you asked for his assistance. What advice you were asking for?---Asking for advice on which way to approach obtaining the financial remuneration that was due upon their termination of my employment in breach of that - - -

In other words, that $155,000?---Sorry?

About $155,000?---That was my understanding, yes.

Yes. All right.  17

MR AMERENA: By that stage, I take it, you wanted the money not your job back?---I would have quite happily - if I was able to resolve the issues with Vmoto I would quite happily have continued to work with Vmoto if we had been able to resolve it.

But - - -?---But in the event that it was - that we were at an in pass, then obviously I required the remuneration under the contract.

That's what you were looking for, because when you brought your proceedings in the District Court and D460 of 2011, the initial statement of claims sought only a payment of money under clause 18 in the sum of $155,000. That's correct, isn't it?---Yes.

You said the company was in breach for not paying you, and you purported on the base of your pleading to accept that as a wrongful repudiation and bring the contract to an end. Is that correct?---Yes.

By this time it was obvious the in pass about how long you were to work in China was not going to be resolved?---Amongst other things, yes. 18

[46] The issue that this raises in the context of an argument akin to representative error in this matter is the distinction drawn by the Commission in Clark between delay that can be properly apportioned to the Applicant’s representative rather than to the conduct of the Applicant.

[47] On the evidence no instructions were given by the Applicant to challenge the dismissal itself by either common law claim or through some legislative claim (eg a general protections application). Ms Atkinson’s evidence was that she was not aware she could seek a remedy under the Fair Work Act 2009 (Cth) until 19 April 2012 after the application in the Courts had failed and further advice was sought.

[48] The circumstances that arise in this matter are analogous to the circumstances that many Applicants find themselves in immediately following a termination. Most people are not legally qualified and do not have expertise in human resources. And most people are, unfortunately, not aware of their rights and entitlements pursuant to the Act in this respect. However in applications for an extension of time, where this has been pressed as the reason for the delay, the Tribunal does not accept this mere ignorance as representing “exceptional circumstances”.

[49] The fact that Ms Atkinson sought legal advice does not assist her in this matter. If, at the time of dismissal the Applicant was concerned about the dismissal in the sense of a ‘wrongful’ dismissal then her instructions to her lawyers would no doubt have been wide enough to consider such matters. The evidence here is that the Applicant only instructed her lawyers in terms of the recovery of monies that she felt was owing pursuant to the employment contract.

[50] The reason for the delay in this matter as submitted is not a valid reason and weighs against the exercise of discretion to extend time.

Any action taken by the person to dispute the dismissal

[51] The Applicant took action from the time of refusal of wages and immediately upon the dismissal to pursue her entitlements. The Respondent was aware from the time of dismissal that the Applicant was pursuing her entitlements. The actions taken by the Applicant provide explanation for the period of the delay. However she did not engage in conduct aimed at disputing the dismissal. The Applicant acted promptly to have the FWA application filed as soon as she sought advice given her actions for her entitlements were barred. Only at this stage did she seek alternatives. By this stage the statutory timeframe relevant to a s.365 application had already expired. This weighs against the exercise of the discretion in favour of the Applicant.

Prejudice to the employer (including prejudice caused by the delay)

[52] In terms of prejudice it was argued that the Respondent should not be put to the cost of defending yet another action simply because the Applicants chosen course was stopped. However it was argued on behalf of the Applicant that she was entitled to file this application and to prevent such would forever prejudice her in not being able to conduct the proceeding.

[53] The acceptance of this application aimed at now disputing the dismissal, so far out of time would prejudice the Employer.

The merits of the application

[54] It was submitted on behalf of the Applicant that she had an arguable case given the proximity of the Respondent’s actions to dismiss her after providing the statutory demand for wages. It was further submitted that at no time did the Respondent have a right to withhold wages whilst resolving the contractual issues.

[55] The Respondent submitted that the application lacks merit. Specifically in this regard FWA directed the parties to file further written submissions in relation to the specific nature of the dispute regarding the alleged workplace right.

[56] The facts of this matter are that the Employee refused to attend China to work for the period the Employer required. In response to this and other issues between the parties, the Employer stopped paying her wages.

[57] The contract of employment cannot be relied on to give rise to a workplace right for the payment of wages. The contract of employment is not a ‘workplace instrument’ as defined in s.12. The contract has not been afforded ‘legal life by a statutory enactment’. 19

[58] However the right to remuneration is a fundamental tenet of the employment contract. In Mallinson v Scottish Australian Investment Co Ltd 20, Knox CJ observed that the existence of the employee-employer relationship and the performance of services therein confers upon the employee the right to remuneration. The Applicant sought payment of these wages by means of a statutory demand. These circumstances fall within the meaning of a workplace right as per s.341(1)(c)(ii), that is a complaint or inquiry, of an employee, in relation to her employment.

[59] In the matter of George v Northern Health (No.3) 21 O’Sullivan FM was satisfied that the Employee had a right to make a complaint or inquiry.22 In that matter it was submitted by the Respondent that the emails of the Applicant, alleged to be a ‘complaint’ for the purposes of s.341(1)(c)(ii), were not a complaint and that to hold such would have gone beyond the protection intended by the Act.23 However O’Sullivan FM, after referring to Ramos v Good Samaritan Industries (No.2)24, accepted that the Applicant had a workplace right in the circumstances of the case, but was dismissed for reasons unrelated to her complaint or inquiry.

[60] Here the statutory demand represents ‘a complaint or inquiry’ to the Court regarding non-payment of wages. There is an arguable case as alleged by the Applicant, that the Respondent being informed of such statutory demand prepared a cheque dated 11 August 2011 to meet the demand, but also in response took adverse action against the Applicant for the making of a complaint or inquiry (in relation to a workplace right arising from her employment) in the form of a statutory demand for her employer to pay her outstanding wages.

[61] In this matter the actions of the Respondent in dismissing the Application (without reasons) after receiving ‘a complaint or inquiry’ for the non-payment of wages is more than questionable conducted when arguing s.341(1)(c). However, the distinction is that after the dismissal, the Applicant simply pursued her entitlements and did not pursue a general protections case until 142 days after the dismissal.

Fairness as between the person and other persons in a like position

[62] There were no specific persons in a similar position.

Conclusion

[63] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 25 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)26 as set out below:

[64] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

[65] Taking into account all of the circumstances of the matter, I am not persuaded that ‘exceptional circumstance’ exist to justify extending the statutory timeframe by 142 days.

[66] The Applicant sought firstly to recoup her unpaid wages. Whilst the Applicants argues a link between the initial statutory demand made for this purpose and the resulting dismissal, the Applicant took action only in relation to the statutory demand. These monies were paid, granted after dismissal but again her further action after the termination was again only in pursuit of her entitlements on dismissal, in accordance with her instructions. Accordingly representative error cannot be justified.

[67] Only when these actions failed was an alternative course of action, pursuant to s.341(1)(c) raised and pursued. By this time more than 150 days had passed since the dismissal.

[68] The reasoning does not equate to exceptional circumstances and the delay cannot be justified.

[69] Accordingly I refuse to exercise my discretion pursuant to s.366(2). The statutory timeframe is not extended and the application is therefore dismissed. I Order accordingly.

COMMISSIONER

Appearances:

J Dwyer of Counsel for the Applicant.

M Amerena of Counsel for the Respondent.

Hearing details:

2012.

Brisbane:

26 July.

Final written submissions:

Applicant, 3 August 2012.

Respondent, 13 August 2012.

 1   Annexure 1 of the Form 8A Response by the First Respondent

 2   Extract from employment contract, Annexure to Exhibit 5, statement of Ms Annette Leung.

 3   Extract from employment contract. Annexure to Exhibit 5, statement of Ms Annette Leung.

 4   Paragraph 4.4.1 & 4.4.2 of Annexure A of the Form 8 Application of the Applicant

 5   Atkinson v VMoto Ltd [2012] QDC at [5]-[6].

 6   Lange v ABC (1997) 189 CLR 520 at 564; see also more generally at 562 to 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.

 7   [2011] FWA 3715.

 8   Transcript PN542-PN548.

 9   [2011] FWAFB 2728.

 10   (1997) 74 IR 413.

 11   Print Q0784.

 12   [2011] FWAFB 466.

 13   Ibid at [35].

 14   PR924583, decision of Watson SDP, Kaufman SDP and Foggo C, 12 November 2002.

 15   PR924583 at para 24.

 16   Transcript at PN333.

 17   Transcript at PN360-PN363.

 18   Transcript at PN371-PN375.

 19   Barnett v Territory Insurance Office [2011] FCA 968 at [29]-[42].

 20   (1920) 28 CLR 66 at 73.

 21   [2011] FMCA 894.

 22   ibid at [55].

 23   Ibid at [52]

 24   [2011] FMCA 341.

 25  Wheelan C, [2009] FWA 1638, [30] and [31].

 26   Lawler VP, [2010] FWA 1394.

 27   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

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