Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal.

[1] Mrs Inna Grabovsky alleged that the termination of her employment by the United Protestant Association NSW Ltd was in breach of the general protections provisions of the Fair Work Act 2009. UPA denies the allegation.

[2] In this matter, Mrs Grabovsky was represented by her husband Mr Grabovsky and she did not attend the hearing.

[3] At the hearing, UPA sought permission to be presented by a lawyer. In opposing that application Mr Grabovsky sought an adjournment of the proceeding because he had made a complaint to the President about my handling of the matter. I advised Mr Grabovsky that I would not adjourn the matter unless ordered to and would proceed to hear the application. Mr Grabovsky advised that he would not participate in the proceeding further in protest and I advised him that that was a matter for him. The Fair Work Commission is required to provide a party with an opportunity to present his or her case it is not required to ensure that a party takes advantage of that opportunity.

[4] Given the decision in Woolworths Limited v Lin[1], I granted UPA permission to be represented by a lawyer at the hearing to the extent necessary to enable Mr Stuart Leverton, the Regional Manager of UPA, to make any additional submissions. I accepted the submission that UPA was not able to represent itself effectively as it outsourced its human resources and industrial relations matters to an external consultant and had no expertise within the organisation that could represent it effectively.

[5] I further decided that I would determine the matter on the material before the Commission and the additional submissions made by UPA.

[6] On 13 February 2018, a letter was sent to the parties advising that the application had been filed outside of the 21 day time limit and seeking the consent of UPA to participate in a telephone conciliation conference prior to the Commission determining whether to extend time. UPA declined to participate in a conference and directions were issued for the filing of material and the matter was listed for hearing on 1 March 2018. The parties were required to file their material by 28 February 2018.

[7] On 27 February 2018, Mr Grabovsky requested an adjournment which was granted. In the material filed in support of that application, Mr Grabovsky complained that UPA had not filed a Form F8A and therefore they were unaware of UPA's position. Mr Grabovsky also advised that he intended calling hostile witnesses and that questioning of those witnesses should not be conducted over the phone. He said he would be filing Form F51 requesting orders for witnesses to attend. He further objected to UPA being represented by a lawyer. He further objected to being required to use the form "Applicant's Outline of Argument: Extension of Time. He further raised difficulties he faced with service of documents on UPA.

[8] To ensure that Mrs Grabovsky was aware of the new timetable on 1 March 2018, I arranged for my associate to contact Mr Grabovsky and advise him of the new dates for compliance and for the hearing.

[9] On the same date, by email and by express post, the parties were advised that UPA had filed its material in opposition to the application for an extension of time. I advised UPA that under the Commission rules it was required to file its response to the application within seven calendar days after it had received the application.

[10] In that correspondence, I advised the parties that I "had examined the information provided by the Applicant and confirm[ed] that a link on the Fair Work Commission website did direct the parties to an outdated version of the Act and that outdated version provided that a s.365 application could be lodged within 60 days." I advised that this did not obviate the need for an extension of time hearing.

[11] I further advised that the matter was listed for an extension of time hearing only and that I would not be determining the merits of the matter. I referred the parties to the decision in Kornicki v Telstra Network Technology Group.[2] I further advised that Mrs Grabovsky was not compelled to use the forms provided to prepare her material. I further advised that if requested by Mrs Grabovsky the Commission would serve any documents filed by her on UPA. I further advised that if any party proposed to call any witnesses they must be made available for cross examination. In the notice of listing, the parties were advised that if they wished to appear in person at the hearing then a video link would be organized.

[12] Mrs Grabovsky filed submissions in compliance with the directions. Those submissions again raised the issue of the failure of UPA to file the Form F8A. Objection was taken to the receipt of material filed on UPA's behalf because UPA did not have permission to be represented by a lawyer. Further, it was submitted that the application to be represented by a lawyer was invalid. It was further submitted that Mrs Grabovsky had never applied for an extension of time because it was her submission that the application was lodged within time. It was submitted that only if UPA objected to the application should this matter be dealt with and the Commission should not instigate the objection. It was submitted that these issues needed to be resolved prior to the hearing on 14 March 2018 and hence the matter should be adjourned. It was said that Mrs Grabovsky had no confidence about the purpose or necessity of the hearing. Further, it submitted that Mrs Grabovsky had no confidence in a hearing conducted over the phone. It was submitted that it was an abuse of process and Mr Grabovsky would only be attending the hearing for the purpose of protesting. The submissions also complained that none of the directions or orders were issued by a member of the Commission and therefore they had no validity.

[13] The submissions then requested an adjournment and sought directions. Mrs Grabovsky was advised that the request for an adjournment was denied.

[14] Prior to dealing with the substantive issue to be determined, I note the following:

[15] The Commission is required to be satisfied that it has the jurisdiction to deal with a matter. If the Commission forms the preliminary view that a matter has not been lodged within time it is entitled to conduct a hearing and provide the party making the application an opportunity to establish that the application was lodged within time or that he or she should be granted an extension of time to lodge the application. The Commission does not require a separate application for an extension of time or an objection lodged by the respondent to deal with such matters. The Commission is entitled to satisfy itself that it has the jurisdiction to deal with an application.

[16] Rule 12 of the Fair Work Commission Rules provides as follows:

(1) For subsection 596(1) of the Act, a person may be represented in a matter before the Commission by a lawyer or paid agent for the following purposes:

(a) preparing a written application or written submission for the person in relation to the matter;

(b) lodging with the Commission a written application, written submission or other document, on behalf of the person in relation to the matter;

(c) corresponding with the Commission on behalf of the person in relation to the matter;

(d) participating in a conciliation or mediation process conducted by a member of the staff of the Commission, whether or not under delegation, in relation to an application for an order to stop bullying made under section 789FC of the Act.

Note 1: Section 596 of the Act sets out other circumstances in which a person may be represented in a matter before the Commission by a lawyer or paid representative.

Note 2: Subrule 12(3) deals with representation of parties in a conference or hearing before a Commission Member.

(2) However, subrule (1) is subject to a direction by the Commission to the contrary in relation to the matter.

(3) To remove doubt, nothing in this rule is to be taken as permitting a lawyer or paid agent to represent a party in a conference or hearing before a Commission Member."

[17] Accordingly, UPA did not require permission for its lawyers to make the application for representation or make submissions on behalf of UPA. It did require permission to represent UPA at the hearing. Accordingly, Mr Grabovsky's submission that no regard should be had to the material filed by UPA must be rejected.

[18] While I accept that Mrs Grabovsky had not formally applied for an extension of time for reasons I will set out below her application cannot proceed unless she is granted an extension of time. Further, Mrs Grabovsky, in Attachment 4 to her application, sets out why her application was not filed within the 21 days provided for in the Act. I am therefore satisfied that rather than dismiss her application I should determine her application on the basis of the material filed.

[19] I note the objection to the hearing being conducted by telephone. However this objection has no validity as the matter was conducted by video link. Further, while it was said that applications to compel witnesses to attend would be made, no such applications were received and neither party called any evidence.

[20] I further note Mr Grabovsky's submission that the directions were not authorised by a member of the Commission. This is not accurate. All the directions issued were authorised by a member of the Commission.

[21] For these reasons I considered an adjournment was unnecessary. Further, the mere fact that a complaint had been lodged with the President on the day of the hearing is no basis for an adjournment.

What was the date of Mrs Grabovsky's dismissal?

[22] In her application, Mrs Grabovsky said that she received a letter of termination, dated 14 December 2017, on 20 December 2017 advising that her employment had been terminated. It was submitted that this letter could not effectively terminate Mrs Grabovsky's employment.

[23] In Commonwealth of Australia (Australian Taxation Office) v Wilson, a Full Bench of the Australian Industrial Relations Commission considered when a notice of dismissal was effective and held as follows:

"[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point." [Emphasis added]

[24] The Full Bench in Metropolitan Fire and Emergency Services Board v Duggan[3] considered whether an employee could be dismissed if the employer had had not complied with s.117 of the Act. It held that:

"[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.

[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute "notice of the dismissal" within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.[4]"

[25] It was also submitted that UPA could not dismiss Mrs Grabovsky when it did because she had outstanding leave entitlements and unpaid entitlements. I am not satisfied that this is correct. Upon termination, Mrs Grabovsky became entitled to be paid for any accrued annual leave and long service leave. If there are any outstanding entitlements those will need to be pursued elsewhere but that does not alter the date of termination.

[26] Accordingly I am satisfied that the dismissal took effect on 20 December 2017 and as this application was lodged on 9 February 2018 it was therefore not lodged within 21 days of the dismissal.

[27] The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[28] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[5] where the Full Bench said:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[29] Mrs Grabovsky submitted that the reason for delay in lodging the application was because of the information Mr Grabovsky found on the Commission website that advised that she had 60 days to lodge the application. When he started filling out the form he noted it said 21 days and he said he then googled the Act it also came up with a version which said 60 days. He said he therefore made an innocent mistake. As I noted above I investigated the Commission website and did find a link to an outdated version of the Act. I am therefore satisfied that Mrs Grabovsky has provided a reasonable explanation for the delay in lodging her application. She was entitled to rely on the information provided on the Commission's website. This weighs in favour of a finding of exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[30] While Mrs Grabovsky had other proceedings on foot before the Commission none related to her dismissal. There is no evidence before the Commission that she took any other steps other than lodging this application to dispute her dismissal. This weighs against a finding of exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[31] UPA submitted that it would be prejudiced because it will incur costs and inconvenience in defending the claim. I accept that UPA will suffer some prejudice but that prejudice is not sufficient as to weigh against a finding of exceptional circumstances.

[32] In the matter of Kornicki v Telstra-Network Technology Group[6] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[7]

[33] For the purpose of determining whether to grant an extension of time to the applicant to file her application, the Commission "should not embark on a detailed consideration of the substantive case."[8]

[34] UPA submitted that it dismissed Mrs Grabovsky because she was unable to fulfil the inherent requirements of the job. She had not worked since 2014 and will never be able to return. That she was unfit to work and could not fulfil the inherent requirements of the job at the time of the dismissal was not disputed by Mrs Grabovsky. It was submitted that these circumstances had existed for a considerable period of time before the dismissal. It was submitted that the reason the dismissal was because Mrs Grabovsky was opposing the application for the approval of the UPA, NSWNMA and NSU NSW Enterprise Agreement 2017-2020.

[35] Further, it was submitted that UPA terminated Mrs Grabovsky because she exercised her workplace right to be properly remunerated for her work and she sought compliance with the law.

[36] UPA denied there was any causal relationship and said that it had initiated the process which led to Mrs Grabovsky's dismissal before it issued the notice of employee representational rights and before Mr Grabovsky was appointed as a bargaining representative. It also submitted that many of the matters raised by Mrs Grabovsky and the remedies sought were not relevant to this claim.

[37] I accept the submission of UPA that many of the matters raised and the orders sought are not relevant to this application. However, the primary allegation set out above in [33] is. Further, a mere temporal connection between two events does not mean that there is a causal relationship however that is a matter to be resolved after hearing the evidence called in the matter. I am unable to conclude based on the evidence before the Commission that Mrs Grabovsky's case is unarguable. Given the reverse onus of proof in these matters I am satisfied that the merits weigh in favour of a finding of exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[38] I am not satisfied that there are any persons in a similar position to Mrs Grabovsky so I consider this criterion to be a neutral consideration.

[39] I am satisfied that there are exceptional circumstances warranting the granting of an extension of time. That Mrs Grabovsky's representative was directed to an out of date version of the Act was very unfortunate. But for this, the application would have been lodged in time. The merits are not unarguable. None of the other criteria weigh in favour of a finding of exception circumstances but the reason for the delay weighs heavily in favour of such a finding. In those circumstances, I am prepared to exercise my discretion and extend the time for lodging the application and an order to that effect will issue with this decision.

[1] [2017] FWCFB 5081

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

[3] [2017] FWCFB 4878

[5] [2011] FWAFB 975

[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

[8] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

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