Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting a further period for the making of an application- application dismissed

[1] This application concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Ms Joanne Hoger who alleges her employment was terminated by Bondall Pty Ltd (Bondall) in contravention of the general protections provisions of the Act. Bondall denied the allegations, and contends that Ms Hoger's employment ended due to resignation.

[2] Ms Hoger stated in her application that she commenced employment with Bondall on 11 September 2009, until her constructive dismissal on 18 August 2017. Ms Hoger's general protections application was lodged on 11 September 2017, and was therefore made three days outside the 21 day period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[4] Section 366 of the Act provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

[5] On 11 September 2017 the Commission received a "Form F8 - Application" from Ms Hoger dated 11 September 2017. Part 1.4 of the Application contains a question, "Are you making this application within 21 calendar days of your dismissal taking effect?" Ms Hoger provided on her application, "21 working days as I was advised over the phone when enquiring about my entitlements, if any, of lodging a claim for unfair pay based on gender."

[6] On 12 October 2017 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing on 15 November 2017 to determine whether an extension of time should be granted. At the hearing, Ms Hoger represented herself. Permission was granted for Mr Jackson of Moray and Agnew Lawyers to appear for Bondall.

[7] On 18 October 2017 Ms Hoger provided her Outline of Argument - Extension of time, including supporting documents. Ms Hoger submitted that there were exceptional circumstances that would satisfy the Commission pursuant to s.366(2) and enable the Commission to grant an extension of time for the filing of her application.

[8] On 18 October 2017, Bondall provided an Outline of Argument - Extension of Time, as well as submissions.

[9] Ms Hoger submitted that at the time of filing her application she was of the belief that she had 21 working days in which to file her application, and that 18 September was the final date. Ms Hoger said she became aware her application was late when she received correspondence from Bondall's representative on 26 September 2017.

[10] Ms Hoger submitted a statutory declaration with her Outline of Argument, declared on 18 October 2017. Ms Hoger submitted that she initially called the Commission after being referred from the Fair Work Ombudsmen. Ms Hoger provided a screenshot of her call history on her mobile phone showing a call was made to the Commission's help line number on 11 September 2017. In oral submissions Ms Hoger said she had made an earlier call to the Commission on 4 September for the purpose of making general enquiries. Ms Hoger indicated she had obtained other employment and was working by this time.

[11] Ms Hoger submitted that on 11 September she spoke to a person on the helpline who assisted her with her enquiry, and advised her that she had 21 working days to submit the claim. Ms Hoger said she then submitted her application at 9:32pm that evening.

[12] Ms Hoger submitted she received a phone call from the Commission the following day querying her original start date with Bondall. Ms Hoger submitted that she asked the caller from the Commission whether she needed anything else, had she omitted anything, and what the process was from here. Ms Hoger submitted the caller responded but did not mention that her application was late.

[13] Ms Hoger submitted a further reason for the delay was the fact that her father had been hospitalised with a serious condition for four weeks up until 17 August 2017, and for a further four weeks after that time in a rehabilitation unit until 13 September 2017. Ms Hoger submitted this caused her a lot of stress, combined with having to care for her 83 year old mother, and that she was physically and mentally exhausted.

[14] In oral submissions Ms Hoger again referred to her father having been hospitalised, and said she had caring responsibilities for her mother and grandmother who resided at the same private address.

[15] Bondall submitted Ms Hoger failed to provide any actual reason or excuse for the delay in lodging her application late.

[16] Ms Hoger said that she had gained other employment by 11 September, and had contacted the Commission as early as 4 September to make general enquiries. Had Ms Hoger made an application on 4 September or at any time up to and including 8 September her application would have been filed within time. Whilst her father having been hospitalised for a lengthy period, and her having caring responsibilities involving her mother and grandmother would have been demanding of her time, her submissions were not to the effect that it was not possible for her to make the application at a time before 11 September. As stated, she had obtained other new employment and been in contact with the Commission a week before 11 September. The reason for delay does not tend to support the case for the granting of an extension.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

[17] On 21 July 2017 Ms Hoger submitted her resignation by email to her employer in the following terms;

Further to our phone conversations earlier today, I hereby tender my resignation.

When available, please advise a firm date of my last day of employment.

I'd like to thank Boondall for my many years of employment and leave of my own accord under amicable circumstances.

[18] A reply email was sent to Ms Hoger the same day from her employer thanking her and advising her last day of employment would be 11 August. A subsequent email was sent to Ms Hoger on 23 July apologising and saying the last day would be 18 August. Ms Hoger submitted emails sent between Mr Alvin Brodie, Managing Director, and herself. Ms Hoger emailed Mr Brodie on 24 July 2017 raising an issue with the fact her salary had not been raised after seven years, and that this had an impact on her decision to leave her employment with Bondall.

[19] On 8 August Ms Hoger sent an email to a range of persons within Bondall advising them of her decision to resign, that her last day would be 18 August, thanking those persons for their help and guidance throughout her time at Boondall, and advising that she was excited to start a new venture.

[20] Ms Hoger emailed Mr Brodie on 16 August 2017 to make a final request that Bondall compensate her in her final pay, to make up for the difference in Ms Hoger's salary to what Ms Hoger understood new employees were earning. Mr Brodie responded on 17 August 2017 declining the request, and wished Ms Hoger the best in her new role.

[21] In oral submissions Ms Hoger did not contest that she resigned, however submitted she did contest the issue that she was not being paid what other male employees in similar roles were paid. Bondall submitted Ms Hoger took no steps to dispute the dismissal because she voluntarily chose to resign her employment. In oral submissions it was pointed out that Ms Hoger did not raise the issue of her pay until after she had resigned.

[22] It would appear from the submissions both written and oral that Ms Hoger does not contest that she resigned, and on that basis it would appear was not disputing "the dismissal" on the basis she did not submit she had been dismissed.

[23] The submissions related to s.366(2)(b) do not tend to support the granting of an extension.

[24] Ms Hoger submitted there is no prejudice to the employer. Bondall submitted they would be substantially prejudiced in terms of the time, cost, inconvenience and disruption, by having to defend a general protections claim filed out of time, by an employee who resigned her employment in circumstances where there was no basis for a general protections claim. The submissions of this point do not tend to support the granting of an extension.

Section 366 (2)(d) - the merits of the application

[25] Ms Hoger submitted the application before the Commission is not without merit.

[26] Ms Hoger submitted Bondall advised her on her commencement of a senior sales representative position in 2015 that the company could not afford to pay her an annual salary of more than $62,500 per annum.

[27] Ms Hoger submitted she later discovered that male sales representatives, who were both new and long term employees, were being paid $65,000 a year. Ms Hoger considered this discriminatory and an insult to her work ethic and detrimental to her self-confidence.

[28] Ms Hoger submitted she queried Mr Brodie after a new male sales representative commenced earlier this year on a starting salary of $65,000. Ms Hoger said Mr Brodie told her this would be rectified in the 2017 Annual reviews, but that she did not receive any salary increase following the reviews.

[29] Ms Hoger referred to the email correspondence between herself and Mr Brodie prior to the end of the employment relationship on 18 August 2017, where she raised a request for a salary raise, and that the fact her salary wasn't raised was a reason she was leaving. Ms Hoger submitted her request for this to be rectified in her final pay was denied.

[30] Ms Hoger submitted Bondall have contravened the general protections provisions of the Act, being gender discrimination under s.351 of the Act.

[31] Bondall rejected the assertion that it had discriminated on the basis of gender. It was noted in email correspondence that Mr Brodie sent to Ms Hoger that Ms Hoger had not meet performance targets and referred to rates of pay for new employees being related to current market conditions.

[32] Bondall submits the application does not disclose any proper basis for a general protections claim. Bondall submits Ms Hoger voluntarily resigned, and provided in her resignation letter "I'd like to thank Boondall for my many years of employment and leave of my accord under amicable circumstances". Bondall submitted there is no evidence to base a general protections claim involving dismissal.

[33] Whilst the Commission usually does not embark on a consideration of the merits of matter, it would appear in this case it is highly likely that the Ms Hoger would not be able to establish that she has been dismissed should the matter go forward. This tends toward not granting an extension.

Section 366 (2)(e) - fairness as between the person and other persons in a like position

[34] This does not appear to be a relevant matter is this case.

[35] I have taken into account each of the elements of s.366(2) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is dismissed.

Mr B. Jackson of Moray & Agnew Lawyers for the Respondent

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