[2013] FWC 1537

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FAIR WORK COMMISSION

DECISION

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

Ms Norma Dean-Villalobos
v
QGC Limited T/A QGC
(C2012/4915)

COMMISSIONER ASBURY

BRISBANE, 21 MARCH 2013

General Protections Dispute - Jurisdictional objection on the ground that the application was made under s.365 and the Applicant was not dismissed - Jurisdictional objection on the ground that the application was filed outside the time allowed in s.366(1) - Finding that the Applicant was dismissed is not a jurisdictional pre-requisite to the Commission holding a conference under s.368 - General protections provisions do not allow a single application to be made under both s.365 and s.372 - Application made under s.365 only - Application made one day outside time allowed under s.366(1) - Representative error - Exceptional circumstances established - Extension of time granted.

BACKGROUND

[1] Norma Dean-Villalobos (the Applicant) was employed by QGC Pty Limited (the Respondent) in the capacity of Lead Access Negotiator. The Applicant was involved in activities related to negotiation with landowners for access to their land, in order for the Respondent to conduct various activities associated with exploration and drilling for natural gas. The Applicant is a citizen of the United States and was working in Australia pursuant to a s.457 working visa under the Migration Act 1958.

[2] On 14 August 2012, the Applicant made an application for Fair Work Australia (now the Fair Work Commission) to deal with a general protections dispute involving an alleged contravention of Part 3-1 of the Fair Work Act 2009 (the Act) by the Respondent (the substantive application). It is stated in the substantive application that the alleged contravention involved the dismissal of the Applicant and that date of the dismissal was 13 June 2012.

[3] In its response to the substantive application, the Respondent raised a number of jurisdictional objections and indicated that it will not participate in a conciliation conference until those objections are dealt with. The Respondent asserts that the Applicant was not dismissed, but rather abandoned her employment and repudiated her contract, and that it adopted the Applicant’s repudiation and abandonment of employment effective 13 June 2012. On this basis the Respondent asserts that the Fair Work Commission (the Commission) has no jurisdiction to deal in any way with the substantive application and that it should be dismissed. The Respondent also objects to the application on the ground that it was lodged outside the time required by s.366 of the Act.

[4] Directions were issued requiring the parties to file and serve material in relation to the jurisdictional objections raised by the Respondent. The Respondent filed its material in accordance with those Directions. The Applicant’s legal representative then corresponded with the Commission advising that during the drafting of submissions in response to the Respondent’s objection, Counsel had raised a number of issues as to whether the Respondent’s objection on the basis that the Applicant was not dismissed is incompetent and whether a time limit applied to the application.

[5] The Applicant’s legal representative requested that the Directions be amended to allow for the exchange of material in relation to this point. Following a further conference with the parties the Directions were amended, and further material was filed and served by the parties in relation to the additional argument raised on behalf of the Applicant. Various extensions were sought to the timetable set in the Directions.

[6] The arguments advanced on behalf of the Applicant are that on a proper construction of s.365, the Commission is not required to determine whether the Applicant abandoned her employment before being empowered to conduct a conciliation conference, and that the application is made under both s.365 and s.372 of the Act, so that the Respondent’s jurisdictional objection is incompetent.

[7] Statements in support of the jurisdictional objections were made by Mr Brett Dixon, the Respondent’s Human Resources Director, and Ms Helen Donovan, Solicitor employed by Herbert Smith Freehills.

[8] The substantive application includes a document said to be the Applicant’s “personal statement” which runs to 33 pages and a further 48 appendices. Statements in opposition to the jurisdictional objection were made by the Applicant; Mr Canonero Brown, an attorney who represents the Applicant in the United States of America regarding her claim; and Mr David Marland, Solicitor employed by Creevey Russell Lawyers. Both parties advised that they did not seek to cross-examine persons who had made statements. Accordingly this matter is determined on the basis of the material on the file.

LEGISLATIVE PROVISIONS - GENERAL PROTECTIONS DISPUTES

[9] The provisions of the Act relevant to these proceedings as they were at the time this matter was heard are found in Chapter 3 - Part 3-1 of the Act which is entitled General Protections. The Guide to Part 3-1 is set out in s.334 and states, in relation to Division 8 Compliance, that in most cases a general protections dispute involving dismissal will be dealt with by a Court only if the dispute is not resolved by the Commission. Division 1 of Part 3-1 is an Introduction to the Part and sets out its objects at s.336, including the provision of effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of Part 3-1. Division 2 of Part 3-1 sets out the circumstances in which the Part applies.

[10] Division 4 deals with workplace rights and the protection of such rights. Section 340 provides that a person must not take adverse action against another person because the person has a workplace right, and by virtue of s.341(1)(c) a person has a workplace right if the person is an employee and is able to make a complaint or inquiry in relation to his or her employment.

[11] Section 342(1) sets out, in tabular form, circumstances in which a person takes adverse action against another person. Relevantly item 1 of the table in s.342(1) provides that an employer takes adverse action against an employee, if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

[12] Division 5 provides other protections including protection from discrimination. Section 351(1) provides, inter alia, that an employer must not take adverse action against an employee because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The circumstances under which s.351(1) does not apply to action are set out in s.351(2) and include action that is not unlawful under any discrimination law in force in the place where the action is taken.

[13] Division 8 of part 3-1 is headed “Compliance”. The division is broken into two subdivisions. Subdivision A deals with “Contraventions involving dismissal”. Subdivision B deals with “Other contraventions”. Section 365 is found in subdivision A and provides as follows:

365 Application for FWA to deal with a dispute

[14] Also found in subdivision A - Contraventions involving dismissal - are ss.366, 368 and 369 which provide as follows:

366 Time for application

[15] Section 372 is found in subdivision B - Other contraventions - and provides:

372 Application for FWA to deal with a dispute

If:

the person may apply to FWA under this section for FWA to deal with the dispute.

[16] Also found in subdivision B - Other contraventions - are ss. 374 and 375 which are in the following terms:

374 Conferences

(1) If:

FWA must conduct a conference to deal with the dispute.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

375 Advice on general protections court application

If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

[17] Each of subdivisions A and B contain separate provisions for applications to be accompanied by a fee as prescribed by the regulations (ss.367 and 373 respectively). The Fair Work Regulations 2009 at rr.3.02 and 3.03 make provision for application fees. The regulations are identical except that r.3.02 relates to a fee for making an application under s.365 of the Act and r.3.03 to an application under s.372.

THE ISSUES IN DISPUTE

[18] The Respondent submits that the Commission lacks jurisdiction to deal with the substantive application, and should not deal with it further, on the ground that there was no dismissal under s.386(1) of the Act because the Applicant abandoned her employment.

[19] The Respondent further contends that even if there was a “dismissal” for the purposes of s.386(a) of the Act (which is denied) the Commission lacks jurisdiction to deal with the matter because:

• The application filed on 14 August 2012 was made under s.365 of the Act;

• The application was not lodged with the Commission within the timeframe prescribed in s. 366(1) of the Act; and

• The Applicant has failed to establish “exceptional circumstances” under s.366(2) of the Act.

[20] According to the Applicant’s submissions, the issues for determination in this matter are:

• Does s.365 require the Commission to determine whether the Applicant has been dismissed before it can conduct a conference?

• If the Commission can determine the first matter, has the Applicant been dismissed from her employment within the meaning of that term as used in s.365 of the Act? and

• In relation to the out of time objection:

[21] The Applicant contends that on a proper construction of s.365 the Commission cannot determine the abandonment of employment objection. If the submission that the abandonment of employment objection is incompetent is accepted, the Respondent’s objection is rejected and the only matter for determination is the extension of time issue. In relation to this issue it is submitted for the Applicant that the time limit in s.366(1) applies only to an application made under s.365 and the application in this case is made under both s.365 and s.372.

[22] The Respondent maintains that the application is made only under s.365 of the Act and that an application cannot be made under both s.365 and s.372. The Respondent also maintains that the Commission must form a view about whether the Applicant has been dismissed, because it does not consent to attending a conciliation conference conducted by the Commission, and cannot be required to do so in circumstances where the Commission has no jurisdiction to deal with an application under s.365 or where the application is made under s.372.

[23] I have dealt with the issues in dispute as follows:

1. Is dismissal a jurisdictional pre-requisite to an application under s.365 of the Act?

2. Was the substantive application made under both s.365 and s.372 of the Act (and can such a single application be made under both provisions)?

3. Was the application made within the time required in s.366(1)?

4. If the application was not made within the required time, should the discretion to extend time in s.366(2) of the Act be exercised?

EVENTS LEADING TO THE CESSATION OF THE APPLICANT’S EMPLOYMENT

[24] There was a significant amount of evidence about events and dealings between the Applicant and various managers of the Respondent which preceded the cessation of the Applicant’s employment. Without recounting the full details of the relationship between the Applicant and the Respondent, it is necessary to consider some of those events and dealings to resolve the issues in dispute in these proceedings. At the point the Applicant’s employment with the Respondent ceased, she had been engaged in a long running dispute associated with complaints she had made in the course of her employment which can be categorised as:

• deficiencies in her employment contract in relation to her entitlements as an expatriate;

• treatment described as harassment, bullying, discrimination and threats by senior supervisors including sexual harassment and discrimination on the basis of sex and national extraction or social origin; and

• unethical and improper practices employed by employees of the Respondent in dealing with landholders and with respect to public land.

[25] The first formal complaint was made by the Applicant in January 2011. On or around 4 February 2011, the Applicant commenced working from home while her complaint was investigated. At some point the Applicant ceased working from home and went on paid leave. The Respondent engaged two legal firms to investigate the Applicant’s complaints and the investigation was completed by October 2011. Throughout the course of the investigation the Applicant made further complaints which included allegations that the investigation was not being conducted impartially.

[26] On 3 October 2011, Mr Dixon sent a letter by email to the Applicant to inform her of the outcome of the investigation. The outcome, as conveyed in Mr Dixon’s letter, was that some of the Applicant’s complaints were substantiated, and some were not. It is sufficient to say that the majority of the Applicant’s complaints, including those relating to sexual harassment, racial harassment and stalking, were found to be unsubstantiated. The letter also indicated that there would be a further investigation in relation to whether some of the Applicant’s complaints were made frivolously or maliciously.

[27] Thereafter there were a series of exchanges by email between the Applicant and the Respondent, during which Mr Dixon sought that the Applicant attend a meeting to discuss the outcome of the investigation and her return to work. The email correspondence from the Applicant to Mr Dixon was not responsive to that request and the Applicant further complicated matters by moving to Houston, Texas and engaging two Houston based attorneys in close succession - Mr Benedict and Mr Brown - who respectively took up the matter on her behalf.

[28] Some of the correspondence from the Houston attorneys is incomprehensible. The correspondence also contains a number of contradictions. Each attorney, upon taking carriage of the matter, made requests for background material from the Respondent and indicated that they would seek to reopen and re-agitate the Applicant’s complaints, which from the Respondent’s perspective had already been investigated.

[29] The first correspondence from Mr Benedict to the Respondent on behalf of the Applicant was dated 23 September 2011 1 and by November 2011 Mr Benedict was referring to himself in correspondence as the Applicant’s “Houston Counsel in the early stages of your findings” and asking that all correspondence be forwarded to him.2

[30] Between 25 October 2011 and 19 March 2012, Mr Dixon corresponded on seven occasions with the Applicant and her legal representatives requesting that the Applicant specify a date and time for a meeting to confirm her continued participation in the investigation process to close it out and arrange a return to work. A number of meeting dates were proposed and the Applicant was also invited to propose a date for the meeting.

[31] Correspondence from the Applicant and her legal representatives during this period did not respond to the matters raised in the letters from Mr Dixon. In a letter of 28 December 2011, Mr Benedict, on behalf of the Applicant, corresponded with Mr Dixon to advise that the Applicant “was not in a position to have a meeting on the requested date [22 December 2011]”.

[32] On 13 January 2012 the Applicant advised Mr Dixon that she had obtained new legal counsel. In response to a request to attend a meeting on 18 January 2012, the Applicant forwarded an email to Mr Dixon stating that her elderly father had suffered a massive heart attack and that she was in transit to the United States. 3 Mr Dixon said that due to the Applicant’s personal circumstances, efforts to arrange a meeting were not resumed until 26 January 2012 when a further email was sent to the Applicant.

[33] On 29 February 2012, Mr Brown corresponded with the Respondent and advised that he was now representing the Applicant. 4 On 20 March 2012, Mr Dixon forwarded a letter to the Applicant in relation to her employment with the Respondent, stating that:

• the Applicant had refused a request to attend a meeting with the Respondent on 22 December 2011;

• the Applicant had refused on four subsequent occasions to attend such a meeting;

• the persistent refusal to attend meetings was despite the Applicant being on paid leave and remaining bound by her obligations as an employee;

• the Applicant’s actions had prevented the Respondent from finalising its investigation; and

• the Respondent must now consider the future of the Applicant’s employment due to her continued failure to comply with its lawful and reasonable instructions.

[34] The letter concludes by requesting that the Applicant provide reasons that the Respondent should take into account in deciding why it should not terminate the Applicant’s employment, and requires a response to be provided by close of business Friday 23 March 2012 (Brisbane time).

[35] A response to that letter was received from the Applicant’s legal representative, Mr Brown, stating that the Applicant was not refusing to meet with the Respondent and requesting that a meeting be held in Houston or by video conference between Brisbane and Houston. The letter also went on to advise that the Respondent should not make any decisions in relation to the Applicant’s employment status until there was an opportunity to discuss issues and facts regarding the Applicant’s claim, and that a termination prior to such a discussion would be treated as a “retaliatory termination”.

[36] A video conference between the parties was held on 3 April 2012. Mr Dixon said that he indicated the purpose of the conference was to discuss returning the Applicant to work, and that her legal representative, Mr Brown, continued to raise issues about the investigation and to question why the Applicant could not work in the United States. Mr Dixon said that he was frustrated because Mr Brown continued to raise those issues and he asked that Mr Brown put them in writing.

[37] Mr Brown corresponded with Mr Dixon by letter dated 10 April 2012 outlining a number of issues that had been the subject of complaint by the Applicant and her previous attorney, and stated that the letter “constitutes a preliminary position and is subject to change”. On 27 April 2012 Mr Dixon responded to Mr Brown’s letter setting out a summary of the history of the matter and indicating that the Respondent had finalised its investigation and did not intend to commence this process again or engage in a further detailed exchange of information. The letter maintained that a full and proper investigation of the Applicant’s complaints had been conducted and finalised. The letter concluded: 5

“As you can see from the above, we have travelled considerable ground to meet her concerns, investigate her complaints, implement the outcomes and endeavour to meet her and agree a return to work program. We are not in a position to let this continue any longer. She has been on full pay for 7 months since the investigation outcomes, and 6 months since we tried to return her to work.

She no longer resides in Australia.

In all the circumstances, we require Ms Dean to show cause why we should not consider:

Her reply should be in writing and should reach us by Wednesday 9 May 2012...”

[38] Mr Dixon said that no response was received to the “show cause” letter. Accordingly, a letter was forwarded to the Applicant on 13 June 2012, under the signature of Mr John Crosisca, the Respondent’s Vice President Legal (Acting), in the following terms: 6

“By letter dated 27 April 2012, to your legal advisor, QGC asked you to show cause why it should not:

Other than a demand for compensation for alleged damage and loss, we have not received a response to the show cause letter. QGC is entitled to make a decision on the basis of the information it currently has.

Notwithstanding all the assertions provided to you to return to work, you have failed to respond to reasonable and lawful requests to settle on a return to work program. This is a breach of your contract of employment and a repudiation of your obligations under the contract. Further, you have failed to return to work and removed yourself from Australia.

QGC adopts the repudiation of your contract and the abandonment of your employment, effective from 13 June 2012.

We will arrange payment of any entitlements to accrued leave. Without prejudice notwithstanding we have no requirement to pay notice, we will also pay you an amount equivalent to four weeks pay. Payment will be made to the nominated bank account on your personnel file.

You are required to return all property held by you and belonging to or provided by QGC (including your laptop and mobile phone) by 30 June 2012. Please courier all such property to... QGC... by registered post or parcel delivery. Upon receipt of proof of payment by email to [QGC] and delivery of the equipment, the relevant amount will be paid into the same nominated bank account.

Any personal effects currently left at your workstation will be forwarded to your attorney’s address by [QGC].

In accordance with Australian law your visa will be cancelled from 31 July 2012...”

[39] The letter was sent to two email addresses from which the Applicant had been communicating with the Respondent, and to Mr Brown, her American legal advisor. There is no record in evidence of when the email was sent or opened. The Applicant appended the letter of 13 June 2012 to her witness statement but does not state the date upon which it was received.

[40] There is evidence of discussions between the Applicant and her American legal representatives and various managers of the Respondent in relation to resolving her claims (or claims she believed she had made or could make against the Respondent), and that these discussions were taking place at the same time as the exchanges between the Applicant and her US attorneys and Mr Dixon in relation to the “show cause” letters.

[41] In this regard, there is a letter in evidence from the first of the Applicant’s legal representatives dated 23 December 2011 proposing a settlement of the Applicant’s “claims against” the Respondent, and a number of references in the witness statements to discussions and communications on a “without prejudice basis” the details of which have not been provided. Further, a letter from Mr Dixon to Mr Benedict, the Applicant’s first American attorney, dated 10 January 2012 requesting that the Applicant attend a meeting to discuss her return to work, states: 7

“Your letter makes reference to ‘this dispute’; ‘[your] client is willing to settle the matter’; and ‘resolving this matter shortly’. We were not aware that your client is, or was ever, in dispute as such with QGC. Accordingly, any ‘settlement’ you (sic) client wishes to propose is a separate issue to the investigation and as such, is a matter for your client.”

[42] The Applicant gave evidence of negotiations she was undertaking on a “without prejudice” basis with Mr Varvari, Vice President Legal, and Mr Crosisca on behalf of the Respondent. In the chronology set out in her witness statement in these proceedings, the Applicant referred to correspondence from Mr Varvari dated 30 April 2012 requesting that the Applicant enter into without prejudice negotiations to resolve the dispute and a letter from her attorney Mr Brown to Mr Varvari, setting out details of unresolved issues and a claim for settlement. The Applicant also said that the letter from Mr Varvari dated 30 April 2012 stated that it was sent “notwithstanding the formal response”. The Applicant said that she assumed that this referred to the letter of 27 April 2012 requiring her to “show cause” why her employment should not be terminated, and that because the letter from Mr Varvari was later, she did not have to respond to the “show cause” letter.

[43] The Applicant said that these letters related to discussions with her attorney in Houston attempting to resolve “outstanding issues” in relation to her employment to achieve a “mutually beneficial resolution” to those issues. The Applicant also said that she believed that her employment with the Respondent was becoming untenable, and that she hoped to negotiate a transfer to Houston or to another office.

IS DISMISSAL A JURISDICTIONAL PREREQUISITE TO AN APPLICATION UNDER S.365?

[44] Both parties have referred to what are said to be competing authorities, in the form of decisions of members of the Commission, in relation to whether the Commission is required to determine that it has jurisdiction to deal with a general protections matter before it can hold a conference. There are a number of decisions where members of the Commission have held that the Commission’s role in relation to a general protections dispute under s.365 is limited to conducting a conference to deal with the dispute (s.368); issuing a certificate if the dispute is unresolved (s.369); and providing advice on a general protections court application if it considers that such an application would have no reasonable prospects of success (s.370). Those decisions have also held that the role of the Commission in relation to general protections disputes does not include determining any preliminary jurisdictional point, other than whether time in which to make an application under s.365 should be extended. 8

[45] There is Full Bench authority supporting the proposition that the Commission’s jurisdiction in relation to unlawful termination applications under s.773 (and by extension general protections disputes) is limited to conducting a conference and indicating to the parties in appropriate cases, that the application would not have reasonable prospects of success, and that the Commission is not otherwise empowered to determine the application or otherwise impose an outcome on the parties. 9

[46] There are also a number of decisions where members of the Commission have held that the question of whether an employee has been dismissed is a jurisdictional fact that operates as a prerequisite to a valid application under s.365. 10

[47] After considering the submissions of the parties and the decisions of members of the Commission referred to in those submissions, I have concluded that there is no requirement for the Commission to be satisfied that an employee making a general protections application was dismissed and that this matter is not a preliminary jurisdictional fact or question which must be determined prior to the Commission taking any action in relation to an application under s.365 of the Act. I have reached this conclusion for the following reasons.

[48] General Protections are dealt with in Part 3-1 of Chapter 3 of the Act, and the objects of the Part include the provision of effective relief for persons who have been discriminated against, victimised or otherwise adversely affected, by contraventions of the part. Sections 365 and 372 are provisions for dealing with disputes alleging contraventions of Part 3-1 of Chapter 3.

[49] Section 365 is found in Division 8 which is headed “Compliance” under the sub-heading “Subdivision A - Contraventions involving dismissal”. Headings to Chapters, Parts, Divisions or Subdivisions are part of an Act. 11 The rules with respect to the use of headings in the interpretation of an Act were set out by Murray CJ in Ragless v District Council of Prospect:12

• If the language of the sections is clear and is actually inconsistent with the headings, the headings must give way;

• If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings; and

• If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.

[50] The arguments advanced by the parties in this matter indicate that the language of s.365 is ambiguous, and the construction I favour is consistent with the heading to the section.

[51] Section 365 is not structured in an exclusionary manner, but is predicated by the term: “If” and goes on to state at subsection (a) “a person has been dismissed”. The conjunction “and” is used to link subsection (b) of s.365, so that if the person has been dismissed and alleges that the dismissal contravenes Part 3-1, the person (or industrial association entitled to represent the person) may apply to the Commission for the Commission to deal with the dispute. The section does not specifically require the satisfaction of the Commission that the person making the application has been dismissed. Rather, it requires that the person making the application alleges that the contravention involves dismissal.

[52] If the legislature had intended that the Commission be satisfied that an applicant under s.365 had been dismissed, rather than that an applicant alleged that he or she had been dismissed in contravention of Part 3-1, then a formulation of the role of the Commission such as that found in s.385 of the Act could have been utilised. Section 385 makes it clear that before considering whether an employee has been unfairly dismissed, the Commission must be satisfied that the person has been dismissed as defined in s.386 of the Act.

[53] In contrast, s.365, read as a whole, and in the context of the other provisions in Division 8 of Part 3-1 simply requires that an applicant allege that he or she has been dismissed and that the dismissal contravenes Part 3-1. The allegation is sufficient to establish a dispute in relation to a contravention involving dismissal. There is no requirement that the Commission is satisfied about either point before it conducts a conference. In my view the term “dispute” in s.365(1) of the Act is sufficiently wide to encompass a dispute about whether there has been a dismissal and whether the dismissal contravenes Part 3-1. This is the case regardless of whether the term “dismissed” in s.365 of the Act has the meaning in s.386 or whether it carries its ordinary meaning, which in any event, requires some action on the part of the employer.

[54] Authority for taking a broad view of the term “dispute” in s.365 is found in a judgement of his Honour Justice Dodds-Streeton of the Federal Court in Shea v TruEnergy Services Pty Ltd (No 1). 13 In that case, his Honour was considering whether “the dispute” in a general protections court application was limited to claims set out in an application to Fair Work Australia pursuant to s.365, alleging that the person’s dismissal was in contravention of Part 3-1 of the Act.

[55] In holding that the dispute was not so limited, his Honour noted that:

[56] His Honour also said that:

“In my opinion, the context of Subdivision A does not support the limitation of the dispute in s.371(1) to that contained in the FWA application. Moreover the phrase ‘in relation to’ indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.

So to hold would endorse a one-sided and temporally limited characterisation of the dispute comprising only the claims and contentions of the applicant set out in the FWA application. It not only excludes developments after the issue of the certificate, but takes no account of the respondent’s possible claims or the possible enlargement or alteration of either party’s claims in the FWA conference and conciliation process. ...

The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating, as a prerequisite to litigation, a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution”. 14

[57] This approach is consistent with the Guide to Part 3-1 in s.334 of the Act, which states in relation to Division 8, that: “In most cases a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by FWA.” In my view, a broad approach where the Commission conducts a conference where a dispute alleges a dismissal in contravention of the provisions of Part 3-1 is to be preferred over an approach where the Commission cannot require parties to attend a conciliation conference without first dealing with any question as to whether an applicant has been dismissed.

[58] The fact that s.587(2) of the Act provides that the Commission must not dismiss an application made under s.365 or s.773 on grounds that such an application is frivolous, vexatious or has no reasonable prospects of success further indicates that the Commission’s powers to dismiss applications made under these provisions are limited to considering whether an extension of time should be granted. It is significant that both s.365 and s.773 deal with disputes in relation to dismissal (s.365) or termination of employment (s.773) other than disputes over whether an employee has been unfairly dismissed (s.394). In my view, this is a further indication that the legislative scheme provides for the Commission to deal with unfair dismissals by arbitration or other determinative processes and with general protections disputes involving dismissal and unlawful dismissal disputes by conciliation.

[59] That this broad approach is to be preferred is also apparent from the Explanatory Memorandum to the Fair Work Bill 2008, which provides in relation to clause 365 (now s.365 of the Act) as follows:

Clause 365 - Application for FWA to deal with a dispute

1478. Clause 365 provides that a person who alleges that they have been dismissed in contravention of Part 3-1, may apply to FWA for a conference to attempt to settle the dispute. An industrial association entitled to represent the industrial interests of the dismissed employee may also make an application to FWA under clause 365.

[60] The Explanatory Memorandum can be used in the interpretation of Act in the circumstances set out in s.15AB of the Acts Interpretation Act 1901 including when the meaning of a provision is ambiguous.

[61] Accordingly, I do not accept the submission of the Respondent in the present case that the Commission does not have the power to conduct a conference pursuant to s.368 of the Act, in the absence of a finding that the Applicant has been dismissed as defined in s.386. I dismiss the jurisdictional objection in relation to that point.

CAN A SINGLE APPLICATION BE MADE UNDER S.365 AND S.372?

[62] I do not accept the submission on behalf of the Applicant that the substantive application is made under both s.365 and s.372. The substantive application asserts that the following sections of the Act have been contravened:

[63] It is assumed that the reference to “s.342 (a) (b) (c) and (d)” is intended to be a reference to the various forms of adverse action listed in the table in s.342(1) item 1 with respect to action taken by an employee against an employer. The substantive application is made under s.365 and makes no mention of s.372, other than the heading on the Form F8 upon which the application is made. Clearly it is made under s.365 and not s.372.

[64] Further, I generally do not accept the proposition that a single application, however pleaded, can be made under both sections. The Form F8 is simply a multi-purpose form, which can be used to make either type of application. The form requires an applicant to indicate whether or not the alleged contravention involves dismissal.

[65] Part 3-1 of Chapter 3 categorises disputes as disputes involving dismissal or disputes involving other contraventions. Persons alleging contraventions involving dismissal may make an application under s.365 of the Act for the Commission to deal with the dispute, and persons alleging disputes involving contraventions who are not entitled to make an application under s.365, may make an application under s.372 for the Commission to deal with such disputes. The distinguishing feature is whether the alleged contravention involves dismissal.

[66] This distinction is critical because:

[67] While neither s.365 nor s.372 is worded in a way suggesting that the provisions are mutually exclusive, it is clear from the structure of Division 8 that a single application cannot be made under both sections. To hold otherwise would result in a situation where the time limit that the legislature clearly intended to apply to contraventions alleged to involve dismissal, could be subverted, by virtue of the ability for an applicant to make an application under s.372 containing such an allegation, outside of the time limit in s.366 and without establishing exceptional circumstances for an extension of time. Where an application is made under s.372 an applicant may elect to proceed directly to the court without attending a conference before the Commission. If an application alleging a contravention involving dismissal could be made under s.372, the mandatory conciliation process established by s.368 would also be subverted.

[68] Further, a construction that allowed a person alleging a contravention involving dismissal to simply make an application under s.372 rather than s.365, would render the provisions of s.371 of no effect. Section 371 limits the circumstances in which a person can make a general protections court application in relation to a dispute under s.365 (ie. a dispute in relation to an alleged contravention involving dismissal) in circumstances where the Commission has not issued a certificate under s.369, to cases where the general protections court application includes an application for an interim injunction. Further, s.371 imposes a 14 day time frame for a general protection court application to be made, once the certificate under s.369 has been issued.

[69] Section 372 can be contrasted with s.365, in that s.372 applies to disputes where the person making the application alleges a contravention of Part 3-1 and is not entitled to apply to the Commission under s.365. The only logical effect that s.372 can have in the context of Part 3-1 is to provide a mechanism for persons who allege a contravention of Part 3-1 that does not involve an allegation of dismissal.

[70] In such cases, a person alleging such a contravention may apply to the Commission to deal with the dispute by conducting a conference, or may make an application directly to the Court to deal with the dispute. Where an applicant applies to the Commission to deal with the dispute, the Commission may only conduct a conference where the parties agree to participate. There is no time limit in which an application under s.372 must be made, and the person making the application does not require a certificate from the Commission in order to proceed to make a general protections court application.

[71] In my view the intention of the legislation is to establish a regime that directs applications alleging a contravention of Part 3-1 of the Act involving dismissal, into a process imposing time limits and mandatory conciliation before the Commission, before an application to the court can be made in respect of the same dispute. This is consistent with the Guide in s.334 of the Act, which states in relation to Division 8 that in most cases a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by the Commission.

[72] However, there is no requirement for an application under s.365 to be limited to pleading that the adverse action is dismissal. Other forms of adverse action may also be pleaded in an application under s.365. This is apparent from the use of the term “involves” in s.365. Adverse action as defined in s.341 of the Act, includes dismissal and other action taken by persons against other persons, which injures, prejudices or discriminates against persons in employment or contractual relationships.

[73] Thus, as in the present case, an application may be pleaded so that an applicant contending that there has been a contravention of Part 3-1 may apply to the Commission to deal with a dispute in relation to allegations of dismissal and other injurious, prejudicial or discriminatory action. Where such an application alleges that the adverse action involves dismissal, the application must be made under s.365 notwithstanding that it may involve other adverse action. Where an application alleges a contravention of Part 3-1 involving dismissal and other forms of adverse action, the application cannot be brought under s.372 of the Act.

[74] I am also of the view that there is nothing to prevent separate applications being made under s.365 and s.372 in circumstances where the application under s.365 alleges that a person has been dismissed in contravention of Part 3-1 and the application under s.372 alleges that other adverse action has been taken prior to or after the dismissal. 15

[75] As the substantive application in the present case was made under s.365 of the Act, it is necessary to consider whether it was made within the time required in s.366 of the Act, or whether the time for making the application should be extended.

EXTENSION OF TIME

Legislative provisions in relation to extension of time

[76] By virtue of s.366 (1) of the Act an application under s.365 must be made within 60 days after the dismissal took effect, or within such further period as FWA allows taking into account the matters set out in s.366(2).

[77] The discretion to extend time in s.366(2) is predicated on the Commission being satisfied that there are exceptional circumstances, taking into account the specified matters. In Nulty v Blue Star Group Pty Ltd a Full Bench of the Commission noted that the expression “exceptional circumstances” has its ordinary meaning, and requires consideration of all the circumstances, going on to say: 16

“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.”

[78] In Robinson v Interstate Transport Pty Ltd, 17 a Full Bench of the Commission held that depending on the particular circumstances of a case, representative error may constitute exceptional circumstances and be a sufficient reason to extend time. In that case the Full Bench held that the conduct of the Applicant is a central consideration to deciding whether representative error provides an acceptable explanation for delay. In particular the Full Bench distinguished the case of an applicant who leaves the matter in the hands of a representative and takes no steps to inquire as to the status of their claim, from one where an applicant gives clear instructions to the representative to lodge a claim and the representative fails to carry out those instructions, through no fault of the applicant. In the latter case an applicant is blameless and it is more likely that a finding that there are exceptional circumstances will be made.18

Date the alleged dismissal took effect

[79] It is asserted in the submissions for the Applicant, that there is a question as to whether the substantive application was made outside the time allowed in s.366(1). It is submitted that the Respondent bears the onus of establishing that it gave a written notice to the Applicant. The dismissal letter dated 13 June 2012 satisfies the requirement of being a written notice of termination, but the use of the expression “give” in s.117 of the Act requires that the notice be served on the Applicant by giving it to her personally or leaving it at, or sending it to, the address of the place of residence last known to the Respondent (s.28A Acts Interpretation Act 1901). The Applicant submits that the Respondent did not adopt either of those means but chose to email the written notice of termination.

[80] The Respondent submits that if the Commission finds that the letter of 13 June 2012 terminated the employment relationship, then the dismissal took effect on 13 June 2012 Australian Eastern Standard Time.

[81] The Respondent also submits that the letter of 13 June 2012 did not purport to be notice under the National Employment Standards and in any event, s.28A of the Acts Interpretation Act 1901 applied, and provision is made under that Act and the Electronic Transactions Act 1999 for notice to be provided by email. In this regard, s.9 of the Electronic Transactions Act 1999, provides that where information under a law of the Commonwealth is required to be given in writing, that requirement is taken to have been met by means of electronic communication where:

(a) ...at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

...

(d) ...the person to whom the information is required to be given consents to the information being given by way of electronic communication.

[82] The Respondent submits that these requirements have been met in circumstances where the Applicant had set out an email address in correspondence dated 18 January 2012, and indicated that this was the correct address to use in corresponding with her about her employment. The Respondent also points to the fact that the Applicant’s solicitor was using the same email address to contact her, as evidenced by correspondence from her Solicitor appended to Mr Dixon’s Witness Statement as Appendix 21. Further, the Respondent contends that the Applicant bears the onus to rebut the presumption created by s.161(1)(c) of the Evidence Act 1995 that the email from the Respondent to the Applicant dated 13 June 2012 was sent on 13 June 2012 (Australian Eastern Standard Time).

Reasons for the delay

[83] The Applicant and her legal representatives advanced a number of reasons for any delay in making the application. These can be summarised as:

• Communication issues associated with time differences between the Applicant and her legal representatives, because the Applicant was living in the United States at the time the application was required to be filed and for a period prior to that date;

• The size and complexity of supporting material that was required to be lodged with the application and difficulties transmitting that information; and

• Inadvertence on the part of the Applicant’s legal representatives in not filing the application within the required time.

[84] It is clear that at the point the Applicant’s employment with the Respondent ceased, she had left Australia and was residing in Houston, Texas in the United States. The Applicant gave conflicting evidence about when she left Australia. In her witness statement in these proceedings, the Applicant said she returned to the United States on 3 December 2011 with the approval of the Respondent, to assist her father who was ill. The Applicant said that her father died on 11 December 2011, and she remained in the United States over the Christmas period to arrange her father’s affairs, with the acceptance and understanding of the Respondent. 19

[85] Mr Dixon appended to his witness statement, an email from the Applicant dated 18 January 2012, which states: 20

“Subject: Elderly Father had Massive Heart Attack and in Transit to America

Dear Brett

I am in transit to America. My father had a massive heart attack and I am in transit to America.”

[86] Mr Dixon also said that around December 2011 he became concerned that the Applicant had left Australia. For some time the Applicant had been claiming her meals, accommodation, car rental and car parking expenses. When Mr Dixon made inquiries of the Respondent’s HR Advisor about the status of these payments, he was informed that the car had been returned to the hirer in November 2011, and a staff member at the apartments where the Applicant was staying had stated in response to an inquiry that the Applicant was not staying at the property.

[87] Ms Donovan said that on Friday 19 October 2012, she typed the phrase “Norma Gladys Dean” into the Google search engine and found information relating to a “trade” in the month of January 2012 involving shipping of 1346kg of used household goods and personal effects between Brisbane and the United States, with the buyer being “Norma Gladys Dean Groff”. The address for notification about the delivery shown on the documents exhibited to Ms Donovan’s statement is the same address as that set out in the substantive application as the Applicant’s address. Ms Donovan also states that from her involvement in this matter and documents provided by the Respondent, she understands that the Applicant previously used the name Norma Gladys Dean-Groff.

[88] The Applicant did not give any evidence about when she received the letter dated 13 June 2012 informing her that the Respondent considered her employment had ended and did not indicate that the date on which she received the letter had any impact on the delay in lodging her application. The Applicant said that shortly after receiving the letter dated 13 June 2012, she contacted Mr Marland of Creevey Russell Lawyers in Australia, to obtain legal advice about her rights under Australian employment law.

[89] Mr Marland said that the Applicant initially contacted the Firm on 14 June 2012 and he conducted a telephone conference with the Applicant and her legal representative in the United States on 15 June 2012. Thereafter the Applicant began to forward various documents by email. According to the chronology of events set out in Mr Marland’s Affidavit of 19 October 2012, the Applicant’s personal statement was sent on 15 June 2012, and the appendices to that statement were sent by email between 16 and 19 June 2012.

[90] The Applicant did not advise Mr Marland that she had been dismissed until 19 June 2012. On that date, the Applicant forwarded the letter of 13 June 2012 to Mr Marland and sought advice on the time limit for making an unfair dismissal application. A costs agreement was signed by the Applicant on 19 June 2012 and was returned to Creevey Russell Lawyers. Thereafter there were a series of exchanges between the Applicant and Creevey Russell Lawyers where additional information and clarification of points was sought.

[91] Mr Marland said that the material provided by the Applicant in the personal statement and the appendices was not compiled in a cohesive or comprehensive manner and there were instances where the personal statement was incomprehensible and contained spelling and grammatical errors. There was also significant material that existed from the end of the investigation of the formal complaint through to the Applicant’s termination, and further requests for information about that material were made to the Applicant. There were difficulties in the exchange of information because of time differences, but the Applicant responded to requests for information in a timely manner.

[92] According to Mr Marland’s evidence, legal advice including advice on time limits in relation to a general protections application was provided to the Applicant on 9 August 2012 and he advised the Applicant on that date that the date by which that application was required to be filed was 13 August 2012. Mr Marland said that he made this calculation by looking at the letter of 13 June 2012 and did not consider when the Applicant received the letter. Instructions to proceed with the general protections application were received by Creevey Russell Lawyers from the Applicant on 10 August 2012.

[93] Mr Marland drafted the substantive application and forwarded the Form F8 to the Applicant at 7.56am on 13 June 2012. The Applicant returned the signed application at 8.39am on 13 June 2012. The signed application was dated 12 August 2012, as that was the date in Houston when the Applicant signed it.

[94] Mr Marland said that he compiled the relevant material ready for review by his partner Mr Russell for filing on the morning of 13 August 2012, and while doing this noticed that some material was incorrect or not properly tabulated and could not be filed until corrected. Mr Marland departed for a speaking engagement in Wandoan after leaving instructions with his secretary to find the correct documents and prepare the application for submission. Mr Marland reviewed the material while travelling to Wandoan and noted further errors and issued instructions for the application to be amended. He was unable to review the application again prior to his speaking engagement, which finished at 10.00 pm on 13 August 2012. Mr Marland arranged for the lodgement of the substantive application with the personal statement appended to it at 1.18 pm on 14 August 2012. The appendices to the Applicant’s personal statement were not filed with the Application.

[95] On 20 August 2012, Creevey Russell Lawyers corresponded with the Commission on behalf of the Applicant stating that an incorrect copy of the personal statement had been filed and requesting that the original version be disregarded and replaced with the “clean” copy attached to the letter. The second version of the statement has the same number of paragraphs as the original version but appears to have had information inserted where the previous version was blank. The covering letter advises that Creevey Russell Lawyers is waiting on relevant material from the Applicant in support of her personal statement and has received electronic copies of 48 appendices which will be provided to the Commission after being compiled. The appendices were filed on 21 August 2012, together with another copy of the personal statement in identical terms to the version filed on 20 August 2012.

[96] It is submitted for the Applicant that the essential and operative reason for the delay is that the Applicant’s solicitors were not able to file the application by the deadline. The Applicant is blameless and fulfilled her part by getting the signed application to her legal representative for filing. It was also submitted that consideration should be given to the fact that the Applicant being located in Houston, Texas had made communication difficult. Reference was also made to the large number of documents provided by the Applicant and the considerable number of issues to be traversed. The inclusion of all relevant matters in the application was prudent and avoided arguments later about what was included in the dispute. Further, it was submitted that even at the time the application was lodged, the Applicant’s legal representatives still required relevant information to be included in the application, and it had to be amended to include further grounds of contraventions of s.365 and s.372.

[97] The Respondent submits that this submission is inconsistent with the evidence, because no reference was ever made to s.372 in the substantive application and the Applicant and her legal representatives were proceeding on the basis of a s.365 application only. The Respondent also submits that there are deficiencies in the statement of the Applicant such that it is not clear what steps she took to prosecute her application. In this regard the Applicant does not give evidence about what the difficulties or delays with her providing material were.

[98] Further there is no dispute that the Applicant received the letter in relation to abandonment of her employment on 13 June 2012, and the six day delay in the Applicant informing her legal representatives of the termination of her employment was not explained. The Respondent also pointed to delays set out in the chronology provided by Mr Marland between 8 and 13 July, 16 and 23 July, 24 and 31 July 2012, and the lack of explanation as to the reasons for those delays.

[99] It is submitted that Mr Marland has not provided any explanation as to what the errors in the Applicant’s material were, who they were made by, and why the application could not have been filed without annexures. The fact that the Applicant is located overseas should not provide grounds for extending the limitation period. If an individual chooses to locate overseas and litigate in Australia, no leniency should be granted or is required in relation to limitation periods, and there is nothing exceptional about such circumstances.

Action taken to dispute the dismissal

[100] The Applicant submits that she has actively disputed the findings of the investigation conducted by the Respondent and its outcomes from October 2011 until her dismissal in June 2012. It is also submitted that the Respondent could have been under no illusion that the Applicant would be proceeding with the matter and that findings in regard to her complaint were disputed. Further, the Respondent could reasonably have expected that the dismissal would be challenged given that the Applicant was engaged in without prejudice negotiations with the Respondent through her attorney in Houston, in relation to issues concerning her employment.

[101] The Respondent submits that there is no evidence that the Applicant took any steps to dispute her dismissal, and no objection was taken or contact made with the Respondent until 61 days later, when the substantive application was filed in the Commission. The Respondent further submits that the action the Applicant took to dispute the findings of the investigation is irrelevant to consideration of the matters in s.366(2)(b) of the Act.

Prejudice to the respondent including prejudice caused by the delay

[102] The Applicant submits that there is no prejudice to the Respondent because, assuming that the notice of dismissal was given on 13 June 2012, the delay was one day. Prejudice would arise if witnesses were not available or documents lost. The Respondent has engaged two of the largest law firms in Australia to conduct the investigation into the Applicant’s complaints, and it is impossible to conceive that there is something that could happen to material generated by the lawyers in the space of that one day, which would be irretrievably lost so as to prejudice the Respondent.

[103] The Respondent submits that it is suffering prejudice as a result of the delay as it has resulted in the Respondent expending legal fees in bringing its jurisdictional objection in circumstances where the Applicant has limited prospects of success, given there was no dismissal. The Respondent also submitted that its main witness now works in London and several other witnesses no longer work for the Respondent.

Merits of the application

[104] The Respondent contends that there are significant problems with the substantive application, including that:

• It has limited prospects of success given that there was no “dismissal” under s.386 of the Act;

• No attempt has been made in the material filed to even allege any evidence of the necessary causal relationship between the Applicant’s action in making a complaint and any alleged termination; and

• The clear evidence is that there is no connection, as the Respondent wanted to deal with the Applicant’s complaint and its findings and return her to work under a return to work program, but she refused to do so.

[105] In relation to the assertion that the Applicant was not dismissed, it is submitted by the Respondent that the Applicant evinced a clear intention not to be bound by her contract of employment by:

• Failing to respond to reasonable and lawful requests to settle on a return to work program;

• Failing to return to work; and

• Leaving Australia to return to the United States.

[106] In this regard, reference was made to the correspondence between the Applicant and Mr Dixon, and the non-responsiveness of the Applicant to requests to specify a time and date for a meeting to confirm her continued participation in the investigation process and to arrange a return to work. Even when a meeting was held on 4 April 2012, the Applicant was not prepared to discuss her return to work and she did not address this in her subsequent correspondence. The Respondent submits that all of the objective facts indicate that the Applicant had abandoned her employment. In particular the Applicant’s relocation to the United States; engagement of a US attorney; relinquishing the lease on her apartment; returning a hire vehicle; and ceasing to claim expenses in relation to these matters and other expenses alleged to be owing on the basis that she was an expatriate, are said to be evidence of abandonment.

[107] Further, the Respondent submits that the Applicant’s contention that she returned to the United States with the agreement of the Respondent should not be accepted and that the reality was that the Applicant notified the Respondent on 18 January 2012 that she was in transit to the United States as her father had suffered a heart attack, and while the Respondent did not object to the Applicant travelling to the United States for this reason, did not give approval, and continued its attempts to contact her. The Respondent also points to the inconsistencies in the Applicant’s evidence about the date upon which she returned to the United States, and contends that she simply left Australia while on full pay and while the Respondent was trying to contact her.

[108] According to the Respondent, the submission that the Applicant believed that in April and May 2012 she was negotiating a settlement of her complaint and that this was not consistent with abandonment, should fail because:

• The subjective intention of the Applicant is not relevant to determining from objective facts whether she had abandoned her employment;

• It is inconsistent with the evidence for the whole period;

• It does not explain the Applicant’s abandonment from December 2011 through to April 2012 and a view that negotiation is consistent with her intention never to return; and

• The Respondent made it clear in previous correspondence and in the open letters of 20 March and 27 April 2012 to show cause, that her abandonment was a separate issue to settling her issues over her complaint.

[109] According to the Respondent, it is clear from the objective evidence that the Applicant abandoned her employment; that the Respondent gave her every chance to explain that she had not abandoned her employment; and the Applicant refused to explain her absence and failed to disavow her abandonment. The Applicant’s abandonment brought an end to the employment relationship and her actions were the primary and principal contributing factor leading to the termination of that relationship. Accordingly the Applicant has not been dismissed as defined in s.386.

[110] It is contended for the Applicant that the true complexion of what the Respondent did was that it treated the Applicant’s conduct as a breach of contract in the nature of repudiation and this is the basis for the termination.

[111] It is also submitted that at the point the Applicant received the letter terminating her employment dated 13 June 2012, she was in negotiations with the Respondent in relation to her employment. In this regard, the Applicant points to the fact that the letter of 27 April 2012 from Mr Dixon requiring the Applicant to “show cause” with respect to abandonment of employment and other matters, was received on the same day as a “without prejudice” letter from Mr Varvari dated 30 April 2012, in relation to negotiations about resolution of her issues, which was said to have been sent “notwithstanding the formal response”.

[112] Given that the letter from Mr Varvari was dated later than the letter from Mr Dixon, it was reasonable for the Applicant to form the view that the Respondent intended to negotiate about the Applicant’s future employment, with the letter of 27 April 2012 being sent by the Respondent to preserve its position. It was also reasonable that the Applicant focused on the negotiations rather than on the “show cause” letter. It was further submitted that in a letter dated 31 May 2012, Mr Crosisca, seemingly in Mr Varvari’s place, sent correspondence addressing earlier correspondence from the Applicant’s attorney Mr Brown, and indicating that this correspondence was being considered. The letter from Mr Crosisca did not make any mention of the “show cause” letter dated 27 April 2012.

[113] The Applicant contends that viewed objectively, the employment relationship was still on foot throughout the negotiations. The subject matter of the negotiations concerned the future of employment and negotiating over this matter is inconsistent with abandonment of employment. The behaviour of the parties indicates, objectively, that both regarded the relationship as still on foot until the Respondent’s letter of 13 June 2012.

[114] The Applicant also contends that the Respondent terminated the Applicant’s employment by the letter dated 13 June 2012, and that this is clear from the terms of the letter itself. At the time the letter was received the Applicant was in negotiations about the future of her employment and disputing the outcome of the investigation. The Respondent was of the view that it could require the Applicant to return to work, notwithstanding her concerns about her safety, and that her conduct in not returning to work was a repudiation of her contract which entitled it to terminate the contract. That is the true effect of the letter of 13 June 2012, and in those circumstances, the termination was at the initiative of the employer.

Conclusion in relation to extension of time

[115] The time period in s.366(1) runs from the date a dismissal takes effect. There is no specific indication in s.366(2) that the Commission is required to consider whether a person became aware of a dismissal after it took effect, in deciding whether to extend time, although this may be a relevant consideration with respect to reasons for delay in making an application. This can be contrasted with s.394(2)(b) where the question of whether a person became aware of a dismissal after it took effect, is a matter to be considered in deciding whether to extend time in which an unfair dismissal application is required to be made.

[116] There is no indication in the Act that written notice is required to make a dismissal effective, or that a dismissal is of no effect if there is a failure on the part of the employer to give the minimum period of notice as required in s.117 of the Act. Failure to comply with such provisions may constitute a breach of the Act, but does not render a dismissal of no effect.

[117] The Applicant, in all of the material filed in connection with these proceedings, has raised no issue about when the letter of 13 June 2012 was received. There is no dispute that it was emailed to her on 13 June 2012 or that it was received on that date. The fact that the Applicant first contacted Creevey Russell Lawyers on 14 June 2012 is also indicative that she had received the letter on 13 June 2012.

[118] The Applicant’s Australian legal representatives who drafted the substantive application assumed that the dismissal was effected on 13 June 2012 and that the time for making the application expired on 13 August 2012. The substantive application as drafted by the Applicant’s legal representatives states that the Applicant was dismissed on 13 June 2013. The Applicant signed the substantive application.

[119] In all of the circumstances, I am satisfied that the Applicant’s employment ceased on 13 June 2012 and that the 60 day time limit in which to make her application ran from that date, and expired on 13 August. The application was made on 14 August 2012, one day outside the time required in s.366(1) of the Act.

[120] It is therefore necessary to consider whether the discretion to extend time in s.366(2) of the Act should be exercised. There are many factors in this case militating against an extension of time. A number of the reasons advanced on behalf of the Applicant for the delay in making the substantive application do not constitute exceptional circumstances.

[121] There is nothing exceptional about the fact that the Applicant chose to relocate to the United States. The Applicant made conflicting statements about when she returned to the United States. In her witness statement in these proceedings the Applicant said that she returned to the United States on 3 December 2011 to assist her father who was ill and that her father died on 11 December 2011. The Applicant also said that she returned to the United States at this time, with the acceptance and understanding of the Respondent and remained there over the Christmas period. This evidence is at odds with the email that she sent to Mr Dixon on 18 January 2012, stating that her elderly father had suffered a massive heart attack and that she was in transit to the United States. It is also at odds with the fact that the Applicant apparently remained in the United States after the Christmas period and continues to reside there.

[122] In my view, it is also probable that the reason that the Applicant’s US attorney advised on 28 December 2011, that the Applicant “was not in a position to have a meeting” and believed that another meeting would “serve no purpose” was because the Applicant had left Australia and had no intention of returning for a meeting. In circumstances where the Applicant was on paid leave while her complaints were investigated, her conduct in this regard was inappropriate.

[123] I accept that the illness and death of a close family member in another country, and the need for a person to travel overseas for a period may provide a reason for delay in making an application under the Act within a required time frame, such that it could be said that there were exceptional circumstances. However, in this case, the Applicant has made conflicting statements about when the death of her father occurred, and regardless of the truth of the matter, this circumstance does not appear to have any relevance to the delay in filing the substantive application, given that the Applicant was dismissed on 13 June 2012 and her application was made on 14 August 2012.

[124] That the Applicant chose to remain in the United States while she pursued her application, is entirely a matter for the Applicant and does not constitute exceptional circumstances. Further, any difficulties arising from time differences between Australia and the United States are not exceptional circumstances and are simply matters which should have been taken into consideration by the Applicant and those who represented her given that she was resident in the United States.

[125] It is also the case that there are a number of periods within the 60 day time frame in which the substantive application was required to be made, where no explanation was provided by the Applicant for her failure to progress the matter. There is no dispute that the Applicant received the letter dated 13 June 2012 in relation to the cessation of her employment, on that date. Mr Marland also gave evidence that the Applicant sought legal advice on 14 June 2012, but did not advise Creevey Russell Lawyers that she had received the letter. According to Mr Marland’s evidence, the Applicant did not inform the firm of the receipt of the letter of 13 June 2012, until 19 June 2012, when she sought advice about the time limit for making an unfair dismissal application. There was no evidence from the Applicant as to why she delayed in advising her lawyers that she had received such a critical letter.

[126] However, notwithstanding the conduct of the Applicant, it is clear that on 9 August 2012 she was advised of the deadline of 13 August 2012 for filing a general protections application and gave instructions on 10 August 2012 for the application to be drafted and sent to her. It is also clear that her legal representatives did not comply with this instruction until 7.56am on 13 August 2012 - the day that the application was due to be filed. The Applicant signed and returned the substantive application to Creevey Russell Lawyers by 8.39 am on 13 August 2012. Accordingly, within the time limit established by s.366(1), the Applicant had done all that she could do to ensure that the substantive application was filed. Thereafter, the matter was left in the hands of her legal representatives.

[127] In my view, there is evidence of conduct on the part of the Applicant’s legal representatives which contributed significantly to the substantive application being made outside the time required in s.366(1) of the Act.

[128] The failure on the part of Creevey Russell Lawyers to provide the Applicant with the substantive application until 7.56am on the date it was required to be filed, was not explained. As previously noted the Applicant had given instructions in relation to drafting the substantive application on 10 August 2012, in circumstances where her legal representatives were well aware that it was required to be filed by 13 August 2012, having advised the Applicant on 9 August 2012 of the deadline for filing.

[129] The Applicant also said in her evidence that she was advised by Creevey Russell Lawyers that it was necessary to file her personal statement and appendices with the substantive application, and that she had difficulty in transmitting the documents via email because of their size and complexity.

[130] I do not accept the submission that it was desirable that all of the relevant material was filed with the substantive application to avoid argument about the scope of the dispute. There was no necessity to attach a 33 page personal statement and 48 appendices, running to four binders of material, to an application for the Commission to deal with a contraventions dispute under s.365 of the Act. The Form F8 completed by Creevey Russell Lawyers and signed and returned by the Applicant at 8.39 am on 13 August 2012, set out all the information that was required to make the application. Further, if it was necessary to file all of the documents, this could have been done after the application was made.

[131] In any event the chronology provided by Mr Marland indicates that the Applicant had transmitted her personal statement by 15 June and the appendices by 19 June 2012. Thereafter, further clarification was sought from the Applicant about that material. If there were difficulties with the contents or formatting of statements and appendices, or additional information was required from the Applicant, there was ample time before the Application was required to be filed for these matters to be addressed. Mr Marland states in his evidence that the Applicant responded in a timely manner to all requests for information made by the Firm.

[132] It is also the case that Creevey Russell Lawyers had sufficient material to complete the Form F8 ready for the Applicant to sign, by 13 August 2012. There does not appear to be any information contained in the Form F8 (or evidence about information in the Form F8) which is additional to that which could have been extracted from the original version of the personal statement sent to Creevey Russell Lawyers by the Applicant on 15 June 2012, or through further conferences with the Applicant so that the application could have been filed within the required time.

[133] Mr Marland gave evidence to the effect that he noted on 13 August 2012, after compiling the application for filing, that some material was incorrect or not properly tabulated, and that he believed that the application could not be filed until these errors were corrected. It is improbable that these errors related to the Form F8, given that an obvious error in the reference to the statutory provisions relating to the adverse action, was not corrected and that the version of the Form F8 that was filed was the one returned by the Applicant at 8.39am on 13 August 2012. When the substantive application was filed, on 14 August 2012, one day beyond the time required, the version of the Applicant’s personal statement appended to it, was not the correct version. The correct version of the personal statement was not filed until 20 August 2012, and the appendices to the personal statement were not filed at all, until 21 August 2012.

[134] Accordingly, the explanation that the substantive application was filed a day late, to enable material either appended to it or contained within the Form F8 to be corrected or properly tabulated, is at odds with the documents that were actually filed. Further, it is apparent that the documents filed on 20 and 21 August 2012 still meet the description provided in Mr Marland’s statement, in that they are not compiled in a cohesive or comprehensive manner.

[135] I also do not accept the submission for the Applicant that at the time the substantive application was filed, relevant information was required by her legal representatives, and the application had to be amended to include further grounds of contravention of s.365 and s.372. The application makes no reference to s.372, and there was no amendment to it to reflect such a reference, either before or after it was filed. There was no reference to s.372 at all, until the Respondent made its submissions in relation to the Respondent’s jurisdictional objection.

[136] The only addition to the substantive application was that after it was filed, a “clean” copy of the personal statement appended to the application, and the appendices to the personal statement, were filed. In short, nothing was served in terms of the documentation of the Applicant’s case, by delaying the filing of the application by one day. In my view, the delay occasioned by the Applicant’s legal representatives deferring the filing of the substantive application to enable superfluous and unnecessary documentation to be appended to it, was a clear case of representative error. Other than that she was the author of that material, the Applicant was blameless in relation to the decision to append it to the substantive application and to delay the filing of that application.

[137] In relation to action taken by the Applicant to dispute the dismissal, I do not accept the submission to the effect that because the Applicant disputed the findings of the Respondent’s investigation into her complaint, the Respondent should have known that the dismissal would be challenged. I am also of the view that the fact that the Applicant may have been engaged in “without prejudice” negotiations with the Respondent prior to her dismissal, is not relevant to the consideration of whether she took action to dispute her dismissal. The reference point for considering whether action is taken to dispute a dismissal is the point at which the dismissal occurs, or at least the time period immediately prior to the dismissal.

[138] The Applicant asserts that she was dismissed on 13 June 2012. At that point the Applicant had received two letters requesting that she “show cause” as to why the Respondent should not terminate her employment or consider that she had abandoned her employment. The “show cause” letters were preceded by letters requesting her to attend a meeting to discuss a return to work, and indicating that the Respondent considered her refusal to attend such a meeting to constitute failure to comply with a reasonable and lawful direction. I do not accept that the Applicant and her legal representative in Houston could have been in any doubt about the need to respond to the “show cause” letter, particularly the letter dated 27 April 2012. The repercussions of failing to respond could not have been more clearly spelled out.

[139] The documentary evidence about the “without prejudice negotiations” suggests that the negotiations were about the Applicant parting ways with the Respondent, and is at odds with her assertion that she was negotiating about her ongoing employment.

[140] Even if the Applicant did not appreciate the significance of the show cause letter of 27 April 2012, there can have been no failure to understand the letter of 13 June 2012 in relation to the cessation of her employment. Any “without prejudice” negotiations clearly ended upon receipt of that letter. The Applicant took no steps to dispute the termination between the receipt of the letter on 13 June 2012 and the filing of the substantive application on 14 August 2012. Further, there is no evidence that the Applicant and the Respondent continued any “without prejudice” negotiations after the letter sent by the Applicant’s attorney on 15 May 2012. The Applicant took no steps to dispute her alleged dismissal, other than filing the substantive application, one day outside the time limit for doing so.

[141] There is no evidence of prejudice to the Respondent if the time limit is extended, other than an assertion in submissions that an unidentified key witness is now residing in London and other unidentified witnesses are no longer working for the Respondent. The Respondent also points to prejudice suffered as a result of expending legal fees in bringing its jurisdictional objections. I do not accept this submission, given that a significant element of those objections - that the Applicant was not dismissed - could have been advanced even if the Application was made within the required time.

[142] It is also the case that the Respondent may have avoided at least some of the expense of mounting its jurisdictional objections by reserving its position in relation to them and attending a conciliation conference. At the very least, it is likely that a conciliation conference would have narrowed the issues in dispute between the parties.

[143] In relation to the merits of the application, I accept that it is strongly arguable that the true reason for the cessation of the Applicant’s employment was her inappropriate behaviour with respect to her non-responsiveness to reasonable requests to discuss closing out the investigation and her return to work. I also accept that it is strongly arguable that the Applicant made a significant contribution to the cessation of her employment by relocating to the United States while she was on paid leave to allow the investigation into her complaints to be finalised, and misleading the Respondent about the fact that she had relocated.

[144] It is also the case that the question of whether or not the Applicant was dismissed and the contribution her conduct made to the cessation of her employment will be resolved by the Court in the event that the Applicant makes a general protections court application. Further, the substantive application is not limited to a contravention involving dismissal and also alleges other contraventions. Any deficiencies in the pleadings are not insurmountable and can be rectified in the event that the matter proceeds to the Court.

[145] In relation to fairness as between the Applicant and other persons in a similar position, this is not a case where the applicant has obtained legal representation but failed to provide proper instructions or to execute documents in a timely manner. In this case, the Applicant took necessary steps to instruct her legal representatives to make an application and has executed necessary documents within the time in which the application is required to be made. The Applicant returned the signed application at 8.39am on the day it was required to be filed, having received it 43 minutes earlier and could reasonably have expected that the necessary steps to file the application would be taken by her legal representatives. This is particularly so given that there were 8 hours remaining before close of business on that day.

[146] As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.

[147] On balance - albeit a very fine balance - I am satisfied that there are exceptional circumstances, involving error on the part of the Applicant’s legal representatives and I am of the view that the conditions necessary to trigger the discretion to extend time in s.366(2) of the Act have been established. I am also of the view that in all of the circumstances, the discretion in s.366(2) should be exercised. Accordingly, I extend the time for the application in C2012/4915 to 14 August 2012. The matter will now be listed for conference as required by s.368 of the Act.

COMMISSIONER

 1   Witness Statement of Norma Dean Villalobos - Annexure “NDV-3”.

 2   Witness Statement of Brett Dixon - Attachment 5.

 3   Ibid - Attachment 14.

 4   Ibid - Attachment 17.

 5   Ibid - Attachment 22.

 6   Ibid - Attachment 23.

 7   Ibid - Attachment 10.

 8   Hansen v Apex Cleaning and Polishing Supplies Pty Ltd T/A Apex Cleaning Supplies [2011] FWA 1566 per Cribb C; Howie v Norilsk Nickel Australia Pty Ltd and others [2012] FWA 2853 per Williams C.

 9   Heatherington-Gregory v Harrington Village Motel [2012] FWAFB 2104 per Watson SDP, Richards SDP and Cambridge C.

 10   Tse v Ready Workforce (A Division of Chandler Macleod) Pty Limited [2010] FWA 8751 per Cloghan C; Jasevski v Australia Post [2010] FWA 9472 per Roe C; Boyar v The House of Life [2011] FWA 7953 per Ryan C; Lord v Worksafe Victoria [2012] FWA 4569 per Ryan C.

 11   Acts Interpretation Act 1901 s.13.

 12   [1922] SASR 299 at 311.

 13   [2012] FCA 628 (15 June 2012).

 14   Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 (15 June 2012) [77] - [78], [81].

 15   Danby v DLW Health Services Pty Ltd T/A Essendon Aged Care and Footscray Aged Care [2011] FWA 7430 per Gooley C.

 16   [2011] FWAFB 975 at [13].

 17   [2011] FWAFB 2728.

 18   Ibid at [25].

 19   Witness Statement of Norma Dean Villalobos at [42].

 20   Witness Statement of Brett Dixon - Attachment 15.

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