Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dispute involving dismissal - extension of time

- application dismissed pursuant to s.587.

[1] On 20 June 2019, Ms Mandy Lee Baillie (the Applicant) submitted an application pursuant to s.365 of the Fair Work Act (Cth) (Act), for the Commission to deal with a general protections dispute involving dismissal.

[2] I have determined to dismiss the application pursuant to s.587 of the Act. The reasons for this decision follow.

[3] A general protections application involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.[1] It is not contentious that the Applicant's dismissal took effect on 16 May 2019. The Applicant did not lodge her application until 20 June 2019. Accordingly, the period of 21 days ended at midnight on 6 June 2019 and the application was lodged 14 days out of time.

[4] Upon filing her application, the Applicant acknowledged her delay and stated that it was because her internet services had been disconnected that she could not file within the 21 days.[2] The Applicant requested that the Commission allow a further period for the application to be made pursuant to s.366(2) (Extension of Time Application). Brazilian Beauty Fairfield (the Respondent) opposed. As conciliation was also opposed pending a determination of the jurisdictional issue,[3] the Extension of Time Application was programmed for hearing.[4]

[5] Initially, the Hearing was set for 22 August 2019 and materials were directed to be exchanged in advance.

[6] On 28 July 2019, the Applicant filed her materials in compliance with the Commission's Directions of 16 July 2019. The reason(s) for delay were briefly elaborated, as follows:

"My financial circumstances prevented me from having any access to the internet, and suffering from extreme anxiety and agoraphobia, I was unable to leave my home in the time required to submit my application."[5]

[7] On 12 August 2019, the Respondent filed its materials in compliance with the Commission's Directions of 16 July 2019. The Respondent submitted that the Commission should not allow an extension of time, including because:

1. no medical evidence had been provided of the Applicant's alleged anxiety and agoraphobia conditions;
2. contrary to the Applicant's assertion that she was not able to leave her home in the time required to submit the application, it had proof (attached were extracts taken from social media) of the Applicant having left her home on numerous occasions during the relevant period including for lunch at the Breakfast Creek Hotel on 22 May 2019 where the Applicant "expresses joy and extreme comfort and even quotes the word 'relaxed'"; and

1. the Breakfast Creek Hotel venue offered "free pub wifi" which the Applicant could have utilised to submit her application.[6]

[8] The Applicant did not attend the Hearing on 22 August 2019, or make any adjournment request in advance. When contacted by telephone at the commencement of the Hearing, the Applicant told the Commission that the reason for her non-attendance was due to illness (migraine). The Hearing was adjourned until 26 August 2019, to allow the Applicant to recover from her migraine or otherwise indicate how she wished to proceed by 10am on 23 August 2019.[7]

[9] At 9.17am on 23 August 2019, the Applicant emailed the Commission in compliance with the Directions advising she would like to proceed with her application. The Respondent, who had not been copied on that email, also wrote to the Commission on 23 August 2019 seeking that the application be dismissed.

[10] At that time, I considered the Respondent's application was premature and determined that the Hearing would resume at 2pm on 26 August 2019.

[11] At 7.53am on 26 August 2019, the Applicant emailed the Commission to advise of her inability to attend the Hearing due to illness (influenza) and undertook to provide a medical certificate at the completion of a medical appointment that afternoon. The Respondent received a copy of the email via my Associate and the Hearing was cancelled.

[12] On 12 September 2019, the Commission emailed the parties. The Applicant was directed to provide medical evidence in support of her two adjournment requests (22 and 26 August 2019) and as to when she would be fit to attend the Hearing of her Extension of Time Application, by 2pm on 17 September 2019.

[13] At 11.51am on 17 September 2019, the Applicant filed a medical certificate dated 28 August 2019 (for the period 21 to 30 August 2019) and undertook to advise of her "availability to attend the hearing of the application for an extension of time" following a further medical appointment on 20 September 2019. The Respondent was not copied on that email. That same day, the Commission wrote to the parties and directed the Applicant to respond with an indication of when she would be fit to attend the Hearing by no later than 4pm on 20 September 2019. The Respondent requested a copy of the medical certificate.

[14] On 19 September 2019, the Commission attempted to contact the Applicant for consent to provide the medical certificate to the Respondent. The Applicant was not able to be reached on her nominated mobile telephone number and a voice message was left. The Applicant did not return that call.

[15] The Applicant did not respond on 20 September 2019 as directed.

[16] On 23, 24 and 25 September 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number however she could not be reached.

[17] On 1 October 2019, the Commission wrote to the Applicant (copying the Respondent) as follows:

As you are aware, the Commission is required to determine whether to grant an extension of the time for filing before the application can proceed.

At your request, the Commission has granted two adjournments of the listed hearing dates on medical grounds.

On 17 September 2019, in response to your correspondence of same date (in which you advised you would be attending a medical practitioner on 20 September 2019), the Commission directed you to provide medical certification to support your fitness to attend a hearing by no later than 4pm on 20 September 2019.

The Commission's records indicate that no response has been provided as directed. Further, the Commission has attempted to contact you by telephone at 3.43pm on 23 September 2019, 8.32am on 24 September and 3.01pm on 25 September 2019. At the time of writing, no response has been received from you.

In addition to the matter of whether to extend the time to allow for your claim to proceed, the Commission also has before it an application by the Respondent to dismiss your application because you have failed to take the necessary steps to prosecute your claim.

If you wish to progress your application you are directed to provide to the Commission (copying the Respondent) a medical certification to support your fitness to attend a hearing of your application for an extension of time. This is to be provided by no later than 4pm on Thursday 3 October 2019.

The matter will be listed for Mention, by telephone, at 4.30pm on Thursday 3 October 2019 at which a further program for the hearing will be determined.

Please note: if the Commission does not receive any response from you, or does not receive the directed materials, by this time then it may proceed to determine the applications before it on the material that is before it."

[18] The Applicant did not respond to the Commission's email.

[19] The Applicant did not attend the Mention on 3 October 2019, did not seek any adjournment and did not provide any reasons for her non-attendance. The Respondent pressed its application for the matter to be dismissed.

[20] Notwithstanding the Applicant's non-compliance, the Applicant was afforded a further opportunity to pursue her claim and respond to the Respondent's application to dismiss her claim, with the Hearing listed to resume on 22 October 2019. The parties were directed that any adjournment requests were to be made in writing, with reasons, by no later than 5pm on 16 October 2019, and again notified that any failure to comply may result in the Commission proceeding to determine the matter on the materials before it.

[21] At 2.50pm on 21 October 2019, the Applicant emailed the Commission attaching a medical certificate of same date and requesting the 22 October 2019 Hearing to be "rescheduled to conform to the Doctors requested time frame". The medical certificate indicated the Applicant may be unfit to attend the Hearing for another couple of months. The Applicant was requested to copy the Respondent but did not do so. The Respondent was notified of the Applicant's request via my Associate (excluding the medical certificate which was not provided pending the Applicant's consent) and the Hearing was adjourned to a date when the Applicant was certified as medically fit to attend. At that time, the Hearing was relisted for 19 December 2019.

[22] On 28 November 2019, the Applicant emailed the Commission attaching a medical certificate dated 27 November 2019. It indicated the Applicant may be unfit to attend the Hearing for another 6 weeks. Again the Respondent was not copied. The Applicant was requested to copy the Respondent but did not do so.

[23] On 6 December 2019, my Associate attempted to contact the Applicant on her nominated mobile telephone number for consent to provide the medical certificate to the Respondent, however she could not be reached and a voice message was left. The Applicant did not return this call. The Respondent was notified of the Applicant's request via my Associate (excluding the medical certificate which was not provided pending the Applicant's consent) and the Hearing was adjourned to a date when the Applicant was certified as medically fit to attend. At that time, the Hearing was relisted for 10 January 2020.

[24] On 12 December 2019, the Respondent wrote to the Commission and the Applicant again pressing its application for the matter to be dismissed. It resisted the further adjournment. The Respondent challenged the Applicant's reasons for adjournments and attached a series of screen shots which it said were of posts made by the Applicant on social media. The social media posts included the following:

1. On 20 October, "Mandy Lee Baillie is drinking gin with Michael Murray in Brisbane", with a photograph of a Gordon Gin bottle and a caption "The Sunday session continues...";

2. On 26 October, "Mandy Lee Baillie is feeling fabulous with Kath Baillie and Bree Britten at Fiori Institute of Skin and Body" with a photograph;

3. On 6 November, "Mandy Lee Baillie is feeling fantastic with Michael Murray at Mr Percival's with a series of photographs and a caption "Melbourne Cup done right";

4. On 20 November, "Mandy Lee Baillie is eating lunch at Zeus Street Greek" with a photograph and a caption "Lunch Break....".

[25] On 20 December 2019, the Commission wrote to the parties to confirm the Hearing would remain as relisted for 10 January 2020 and that any further adjournment requests were to be on substantial grounds, supported by medical evidence. The parties were also on notice that any failure to attend may result in the Commission proceeding to determine the applications before it on the materials before it at that time. The Commission's correspondence went on to provide guidance as to the Applicant's options including in the event that she felt unsure of how to proceed.

[26] On 9 January 2020, the Respondent filed and served a Statutory Declaration of Helen Clifton (Director of the Respondent). The statutory declaration detailed the instances of non-compliance by the Applicant and described the impact of this non-compliance on the Respondent as follows:

"The Respondent has and continues to be prejudiced by the Application and the Applicant's conduct through this matter by:

1. Having to continuously be ready and prepared to attend the listed hearings;
2. Taking time to review and consider the ongoing adjournment notices;

1. Responding to the Commission's request for reasons as to why the matter should be dismissed;

1. Taking time off work to prepare for and attend the scheduled hearings; and

e) Enduring ongoing emotional distress due to the prolonged resolution of the matter."[8]

[27] Ms Clifton also declared that the Respondent is "unable to understand" the Applicant's alleged medical reasons for adjournment requests because the alleged incapacity had not affected the Applicant's ability to obtain alternative employment, attend licensed venues, participate in social eating, drinking and attend parties. Ms Clifton declared that this conduct was documented by screen shots taken from the Applicant's social media account (which were attached, including those extracted at paragraph 24 of this Decision).

[28] No adjournment request, or indeed any other communication from the Applicant since her 28 November 2019 email, was received in advance of the Hearing on 10 January 2020.

[29] On 10 January 2020, the Hearing proceeded as listed and consistent with the Commission's indications of 20 December 2019. The Applicant did not attend the Hearing. The Respondent attended and again pressed its application that the matter be dismissed.

[30] Section 587 of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[31] In performing functions or exercising powers, including that at s.587, the Commission must take the following into account:

"a) the objects of this Act, and any objects of the part of this Act; and

b) equity, good conscience and the merits of the matter; and

c) the need to respect and value the diversity of the work force by helping to prevent and element discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin." [9]

[32] Section 587 confers a sufficiently broad discretion to allow an application under s.365 to be dismissed for want of prosecution by an applicant, in an appropriate case, to be exercised with caution and having regard to the matters the Commission is required to take into account in the performance of its functions.[10]

[33] The objects of the general protections provisions at Part 3-1 of the Act include to protect workplace rights and provide protection from workplace discrimination. The Commission's role in a general protections claim involving dismissal is to assist in dispute resolution provided application was made within the statutory timeframe or such further time as the Commission allows.[11]

[34] As the historical context reveals, the Applicant did not file her application within the statutory timeframe. Then, in seeking an extension of time to allow her claim to proceed, she did not comply with directions of the Commission, failed to attend proceedings and ignored the Commission's attempts to communicate. Her compliance has waned from sporadic to non-existent. But she has not discontinued her claim.

[35] With regard to the objects of Part 3-1 and taking into account fairness, justice, equity and good conscience for both employers and employees, the Commission has afforded ample opportunity to the Applicant to seek an extension of time and ultimately prosecute her general protections claim. She was regularly placed on notice of the likely consequences of her non-compliance including that the Commission may proceed to determine the matter based on the materials before it. The Applicant's non-participation in the Commission's processes has required the Respondent to expend resources in continuing to respond to a claim that the Applicant no longer seems to have any intention of following through.

[36] The Applicant did not respond to the Respondent's application to dismiss her claim, or the serious allegations regarding her truthfulness in seeking adjournments of the Commission (or indeed similar allegations regarding the truthfulness of her reasons for delay in filing the application). Those allegations were supported by sufficiently proximate social media extracts. I make no finding in this regard but observe that, on the materials before the Commission, there appears to be sound basis for the Respondent's concerns such that further inquiry was warranted had the Applicant sought to pursue her claim.

[37] Even if I were to accept the Applicant's alleged medical conditions and the medical evidence filed during the course of the proceedings, this would not reasonably explain her many instances of non-compliance including her disregard of directions of the Commission, unexplained non-attendances at Commission proceedings and complete failure to respond or communicate since 28 November 2019.

[38] For the above reasons, I have determined that the application should be dismissed. I order accordingly.

[1] Section 366 of the Act.

[4] Commission's Directions dated 16 July 2019.

[5] Applicant's Outline of Argument: Extension of Time dated 28 July 2019, at item 1d.

[6] Respondent's Outline of Argument: Extension of Time dated 12 August 2019, at paragraph 12.

[7] The Commission's Directions given at the Hearing were also confirmed to the Applicant, in writing, by email dated 22 August 2019.

[8] Statutory Declaration of Helen Clifton dated 9 January 2020, at paragraph 13.

[9] Section 578 of the Act.

[10] McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112 and McLachlan v Hopper Farms Pty Ltd [2019] FWC 8540.

[11] Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321.

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