Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 1 May 2019, Ms Angella Everingham (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant was employed by Candice Care Inc t/as Candice Care (the Respondent) in March 2018 and terminated on 5 March 2019. The Second Respondent in this matter is Candice Dover, Founder and CEO of Candice Care. For the purposes of this decision I refer to the First and Second Respondents jointly as the Respondents.

[2] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 57 days after the Applicant was dismissed, which is 36 days out of time.

[3] Legal representatives for both the Applicant and Respondent sought permission to appear. Following consideration of their arguments, I permitted legal representation to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, on the basis that it would be unfair not to permit representation and fairness between the parties.

[4] The Applicant was engaged in the position of Chief of Operations, which involved the role of human resources manager, compliance and quality control duties. The Applicant submits that she exercised a workplace right by complaining about an alleged sexual assault by an aged care resident on her daughter, who also worked for the Respondent. She submits that her complaint to the Respondents on 26 November 2018 concerned a complaint that there should be policies and procedures to prevent such incidents and to protect the health and safety of staff.

[5] The Applicant submits she made complaints to the Aged Care Quality and Safety Commission on or around 28 November 2018 about the lack of policies and procedures held by the Respondent. The Applicant also submits she made further complaints to the Second Respondent in early December 2018 and in January 2019 about her daughter's safety and the alleged lack of action from the Respondent.

[6] The Applicant submits she made a further complaint (date not disclosed) to the Aged Care Quality and Safety Commission regarding the incident involving her daughter and made further allegations regarding the Respondent.

[7] The Applicant submits that the reasons given for the dismissal was that she made inquiries to WorkCover Queensland. She contends that the inquiry to WorkCover Queensland is a workplace right.

[8] Ms Shannon Brewer (daughter) was a witness for the Applicant. Ms Brewer worked for the Respondent and in November 2018 alleged to have been sexually assaulted by a 90-year-old client. The witness admitted that she made a police report 2 and a half months after the alleged sexual assault and that she was the only person from among the team that had handled the client that made a police report. The witness also admitted under cross examination that her WorkCover claim was rejected on appeal. Serious allegations were made against the Respondents both in the witness statement and under oath. I found the purpose of the witness to discredit the Respondents with such serious allegations troubling. Her evidence was unimpressive, and I have considered the weight of her evidence accordingly.

[9] The Applicant submits that her role entailed responsibility to ensure that the Respondent complied with laws relevant to the business, namely health and safety obligations pursuant to the Work Health and Safety Act 2011 (Qld) and with the Anti-Discrimination Act 1991 (Qld).

[10] It is contended that the dismissal was an adverse action against the Applicant for exercising her right to complain to, and about the Respondents, and she alleges she was excluded from company communications. She further contends that the letter of termination is "bogus"[1].

[11] In her application, the Applicant contends that the contraventions of the Act by the Respondents relate to:

• s.340 on the basis that she exercised one or more workplace rights to make a complaint to a person or body and having the capacity under workplace law to seek compliance with that law.[2]

[12] The Respondent contends that the Applicant was dismissed from her position on grounds relating to performance and conduct, which were referred to in her letter of termination. The Respondents dispute the allegations that the Applicant was dismissed for any reason other than that contained in her letter of termination. Further the Respondents dispute the Applicant's allegation that she was informed that the reason for her termination was that she made inquiries with WorkCover Queensland.

[13] The letter of termination was submitted in evidence and it stipulates that the termination is due to serious misconduct (breach of use of company property and intellectual property, and not performing duties to mitigate the company's risk) and effective immediately.

[14] The Respondents admit that the Applicant's daughter raised concerns on or about 26 November 2018, "stating that she felt that improved policies and procedures ought to be implemented to minimise the risk of similar incidents occurring to other staff".[3]

[15] The Respondents submit that it is "nonsensical" to suggest that the Applicant raised a complaint concerning her own failure to carry out the task of preparing, proposing or amending policies and procedures dealing with staff safety.[4]

[16] The Respondents submit that they had no knowledge or evidence of any complaints made to the Aged Care Quality and Safety Council, until served with the general protections claim, and further they dispute the allegation that complaints were made to the second Respondent in either December 2018 or January 2019. The Respondents submit that no correspondence has been received concerning the matter from the Aged Care Quality and Safety Council.

[17] The Respondents admit that the Applicant had certain workplace rights, but they deny that the Applicant exercised these rights and if she had, it is entirely unrelated to the reason for the termination of employment.

[18] The Respondents deny they took adverse action against the Applicant in terms of all the allegations contained in the Application.

[19] In terms of the allegation that the letter of termination is "bogus", the Respondents deny this and submit that the Applicant was "charged with preparing and maintaining employee records, devising and implementing the first Respondent's workplace policies and procedures and responding to all human resourcing issues. The Respondents submit the Applicant failed to discharge her duties as Chief of Operations by failing to keep proper records, that she intentionally deleted pertinent information from the First Respondent's computer system, failed to undertake compliance and quality control duties and exposed the First Respondent to claims in respect of its obligations to employees".[5]

[20] On 25 June 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[21] General protections applications involving dismissal must be made within 21 days.

[22] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(e) Fairness between the person and other persons in a like position

[23] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[6] where it was held that:

"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 regular occurrence, even though it can be a on 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."[7]

[24] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2).

[25] The general protection involving dismissal application was lodged with the Commission on 1 May 2019.

[26] The Applicant contends that the reason for delay is analogous to the decision of Lane v Kangaroo Island Dive & Adventures Pty Ltd (Lane).[8]

[27] The Applicant made an unfair dismissal application by herself in time.

[28] It is alleged that the Conciliator informed the Applicant that she could have lodged a general protection claim and it is alleged that the Applicant became aware of the "error" only at the time of the conciliation conference. The Applicant contends that Lane supports her arguments that the Commission should exercise its discretion to grant an extension of time.

[29] It is submitted that the Applicant sought legal advice on 29 April 2019, a general protection claim was filed on 1 May 2019 and the unfair dismissal claim discontinued on 5 May 2019. It is submitted that the "error of an incorrect application was corrected swiftly". [9]

[30] It is submitted that the application for an unfair dismissal was in error and as the Commission cannot "correct" an unfair dismissal into a general protections application, provided that the Applicant acts swiftly, then the Commission should exercise its discretion to grant an extension of time. [10]

[31] In considering the reason for the delay I am required to consider all of the relevant matters. In my view this matter can be distinguished from Lane as it is not a matter where an incorrect application was made. In Lane, the Applicant did not have an avenue for redress pursuant to s.773. In this matter the Applicant had an option to file either an unfair dismissal or general protections claim. The Applicant chose to file an unfair dismissal claim and it proceeded to conciliation, concluding with an in-principle settlement.

[32] There is nothing unusual, out of the ordinary or uncommon with applicants selecting one jurisdiction over another. For the Applicant to change her mind does not constitute exceptional circumstances.

[33] The Applicant also contends the reason for the delay is attributable to her dealing with family responsibilities. The Applicant submits she is normally a high functioning executive and conducted her research on her own before filing her unfair dismissal claim. She submits that her ability to self-represent was impacted by her family responsibilities. However, in submissions it was contended that the family responsibilities arose "two months ago". No date was given for the family situation, although should this be accepted, it follows that the Applicant was impaired from making a correct decision since late April. However, it is clear that the Applicant filed her unfair dismissal claim prior to this period.

[34] The Applicant's witness statement alleges that the family situation impeded her ability to prepare her legal matter from the date of dismissal. While under cross examination, the Applicant admitted to not having any medical evidence to support her argument relating to her alleged impairment. The Applicant says she did not require any medical attention, rather the impact of the family responsibility related to the support she provided to her daughters, one that lodged a WorkCover claim, and the other that had given birth on 31 March 2019.

[35] I am not satisfied that the Applicant was impaired when making a decision to file a claim against the Respondent. I do not consider the reasons given for the delay weigh in the Applicant's favour.

[36] The Applicant submits that her action to dispute the dismissal occurred with her lodgement of her unfair dismissal claim on 19 March 2019 (within the 21-day limit) and participation in the conciliation conference on 29 April 2019.

[37] The Respondent participated in the unfair dismissal conciliation conference and reached an in-principle agreement to settle. However, during the three-day cooling off period the Applicant withdrew the unfair dismissal claim and filed a general protection claim.

[38] While the Applicant exercised her right to forum shop, to rely on the submission that the first claim was in error and therefore justifies the Commission to exercise its discretion to grant an extension of time does not weigh in favour of the Applicant.

[39] The Applicant asserts that granting an extension of time merely inconveniences and does not prejudice the employer. However, an absence of prejudice does not justify an extension.

[40] While the employer may not be prejudiced by an extension of time, I do not consider its mere absence as a reason to grant an extension.

[41] The Applicant submits the reason for the termination in the letter is bogus and that she was terminated in contravention of her exercising workplace rights. The Respondent disputes the submissions of the Applicant. The Applicant failed to provide supportive evidence that she exercised a workplace right by complaining to the Respondents, WorkCover Qld or the Aged Care Quality and Safety Commission. The Applicant also failed to provide any explanation why she claims to have suffered an adverse action, when it was her responsibility in her position to manage the health and safety of the employees. Nevertheless, the merits were not tested, and there are facts are in dispute, therefore the Applicant has not made out a strong argument for this consideration.

Fairness between the person and other persons in a like position

[42] In written and oral submissions both the Applicant and Respondent did not respond adequately to this consideration Consequently, I consider this to be a neutral factor in the present matter.

[43] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[44] On balance of all the considerations, I am not persuaded that the Applicant has substantiated exceptional circumstances for an extension of time.

[45] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[46] An order[11] to that effect will be published separately.

[2] Applicant's Form F8 at 3.3 and oral submissions.

[4] Respondent's Outline of Argument at question 1b.

[6] [2011] FWAFB 975.

[8] [2010] FWA 3939.

[11] PR710132

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