s.773 - Application to deal with an unlawful termination dispute

Lisa Miscamble, Kathryn Baget-Juleff, Manager, Community And Wingecarribee Shire Council

Application to deal with an unlawful termination dispute - extension of time

• [1] On 16 May 2024 Ms. Karen Tan (applicant) filed an application under s.773 of the Fair Work Act 2009 (Act) alleging that her employment had been terminated in contravention of s.772(1) of the Act. The respondents to the application as originally filed were Ms. Lisa Miscamble and Ms. Kathryn Baget-Juleff (individual respondents). At all material times, the individual respondents were engaged by the Wingecarribee Shire Council (WSC) in the positions of General Manager and Manager Community, Life and Libraries, respectively.

• [2] Section 774 of the Act provides that applications of this kind must be made within 21 days after the employment was terminated or within such further period as the Commission allows under s.774(2). It was common ground that the Applicant's employment was terminated on 12 April 2024.

• [3] In the originating application the Applicant accepted that the application was not made within 21 days after her employment was terminated.[1] Elsewhere in the application and submissions however, the applicant appeared to argue that an earlier application made to the Commission and subsequently discontinued, described below, had the effect that the present application was made within the relevant time period.

The Earlier Proceeding - General Protections Application

• [4] On or about 30 April 2024 the applicant filed an application under s.365 of the Act (General Protections application) alleging that her employment had been terminated in contravention of Part 3-1 of the Act. The respondent to the application was WSC. Two F1 applications dated 14 May 2024 were later filed by the applicant seeking to amend the General Protections application. The first application was to change the named respondent/s to that application from WSC to the individual respondents in the present matter. The second sought to amend the General Protections application such that it became an application to deal with an unlawful termination dispute under s.772. Neither the individual respondents nor WSC were served with the F1 applications at the time they were made.[2]

• [5] A discontinuance of the General Protections application was filed by the applicant on or about 16 May 2024.

• [6] There is a lack of clarity in the applicant's submission about the effect of the General Protections application. To the extent it is argued that the General Protections application constituted an application made under s.773 within 21 days after the employment was terminated, I reject the argument. The two matters were separate applications brought under different Parts of the Act. The provisions in those Parts have different constitutional underpinnings and apply in different circumstances. Matters brought under s.773 are confined to circumstances in which it is alleged that there has been a termination of employment in contravention of the grounds specified in s.772. Part 3-1 of the Act protects a person from, amongst other things, various forms of adverse action including but not limited to termination of employment, for reasons related to various workplace rights that the person may have or seek to exercise. Part 6-1 of the Act draws a clear distinction between the two types of applications.[3] Here, the applications were also, in the first instance, commenced against different respondents.

• [7] I do not think that the steps taken in the General Protections application can be regarded as an unlawful termination application in substance.[4] I also note that the General Protections application was ultimately discontinued by the applicant. There was no extant proceeding which could be relied on as constituting an application made within time. I am therefore of the view that the General Protections application does not have the effect that the present application was made within the 21-day period. Accordingly, the matter can only proceed if the Commission extends the time period for the filing of this application.

• [8] Insofar as the General Protections application and associated applications to amend explain the reason for the delay or otherwise contributed to the existence of exceptional circumstances justifying an extension of time for the present application, I have taken those matters into account below.

Amendment of Current Application - WSC added as a Respondent

• [9] Directions were made for the filing of material to determine whether the Commission should grant an extension of time under s.774(1)(b) and to deal with a number of other jurisdictional issues raised by the individual respondents. The matter was listed for hearing 17 June 2024 to determine those issues.

• [10] At the commencement of the hearing, the Applicant sought leave to amend the application to add WSC as a third respondent to the application. WSC was the applicant's employer at all relevant times. The application to amend was not unexpected since the applicant had earlier sought to include WSC as a respondent in an amended application form filed with her submissions on 30 May 2024 without making a formal application to do so. In any case, the application to include WSC as a respondent was not resisted and the application was granted pursuant to s.586 of the Act. The matter proceeded on that basis.

• [11] Aside from objecting to the application on the basis that it was out of time, the individual respondents raised three other objections in their written material. They said that the individual respondents were not at any time, the applicant's employer, that the application relates to apparent internal complaints about co-worker natural persons and not complaints about the employer to external bodies as is required by s.727(1)(e) and that the application had been made contrary to s.723 of the Act. The individual respondents urged that the application had not been made in accordance with the Act and that the Commission could exercise its general discretion to dismiss the matter under s.587(1)(a).

• [12] I propose to deal with the extension of time issue first. Because of the conclusion I have reached on that question, it is unnecessary for me to consider the remaining objections of the respondent other than as set out below.

• [13] The Act describes the circumstances in which the Commission may grant an extension of time in subsection 774(2) as follows:

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 employee to dispute the termination; 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.

• [14] I will deal with each of the above matters in turn to determine whether exceptional circumstances exist.

• [15] As the applicant's employment came to an end on 12 April 2024, the relevant period for the filing of an application expired at midnight on 3 May 2024. The delay is the period from this date until the application was filed on 16 May 2024, a period of some 13 days. Insofar as the WSC was concerned, as I have noted above, they were not joined as a respondent to the proceeding until the hearing on 17 June 2024.

• [16] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay. Circumstances arising prior to that delay may be relevant to the reason for the delay.[6]

• [17] The applicant argued that she made an application to the Commission that was within time but that she inadvertently used a Form F8 and so initiated the general protections application rather than an unlawful termination application. She said it was unclear to her that a Form F8 could not be used in circumstances where the employer was a local council. Further, the applicant argued that there was "extensive delay in processing this application by the FWC". The applicant said she contacted the Commission numerous times to make sure the application was within time and was told "not to worry because (the) application was in on time." She said there were delays in accepting her filing fee because of a backlog of applications at the Commission. She said she sought legal information that was not forthcoming and that she tried to navigate the process swiftly and get the matter underway.

• [18] The applicant also referred to and relied on what she said was the Commission's denial of her Form F1 request to "transfer" the General Protections application to an unlawful termination application.

• [19] The applicant said she was terminated without notice and lacked all the available evidence at the time of termination and that this meant additional time was required to file her application. She also submitted that it was not clear on the face of the Form F8 that she was ineligible to use the form and that the status of the WSC as a council under administration put its status in "grey area".

• [20] The respondent said it was clear that the applicant did not inadvertently file the wrong form. They said the applicant did not intend to file an unlawful termination application as the General Protections application was deliberately framed in the language of a General Protections matter and not an unlawful termination matter. The respondent said that forensic decisions to change an application is not a reason supportive of a conclusion that exceptional circumstances exist. The respondent relied on the decision in Jordan v Arrow Worldwide Pty Ltd[7] where the Commission said that the delay in commencing a general protections claim was due to a belated realisation that an unfair dismissal claim was likely to fail because of a jurisdictional requirement. There, the Commission ultimately concluded that there were no exceptional circumstances.

• [21] The respondent submitted that the applicant's reliance on the decision in Lane v Kangaroo Island Dive & Adventures Pty Ltd[8] was misplaced since that matter involved a case of representative error rather than the inadvertent filing of the wrong form.

• [22] The respondent submitted that to the extent the applicant sought to attribute responsibility for the delay to Commission processes, this should be rejected as these were bare assertions and there was insufficient detailed evidence from which such a conclusion could be drawn. The respondent said it was clear that the applicant had access to Commission resources such as bench books and was using those in preparing her application. They said the applicant had failed to show that there was a credible or reasonable explanation for the delay.

• [23] The applicant clearly had difficulty determining the nature of the application to be brought and the appropriate respondents to the application. It appears that in the first instance she thought it was possible to bring a general protections application against WSC and then later simply 'transfer' that application to an unlawful termination proceeding against the individual respondents. When this did not happen, the applicant elected to discontinue the first proceeding and commence the second. However, I do not regard this as a simple case of an incorrect application form being used. I do not think it is the case that the applicant always intended to bring an unlawful termination case against two individual respondents and WSC but mistakenly used a general protections application form in which she initially named the WSC as the sole respondent. Instead, I think the applicant wanted to bring a general protections claim but came to a view at some point after the application was lodged that there were jurisdictional difficulties proceeding against WSC in that way. In her written submissions supporting an extension of time the applicant said:

Other than the form and the amended respondents (provided herewith corrected), all other details submitted on the F8 form remain the same. I merely seek a transfer of application information from the F8 form to the F9 form - for jurisdictional compliance and a fair hearing and outcome.

• [24] The applicant regarded, and appears to continue to regard, the two causes of action as interchangeable when they clearly are not. It may be accepted that difficulties can arise for an unrepresented person navigating some of the requirements of the Act, including in some circumstances, determining the appropriate cause of action. In Hedger v. Trustee for Perrott Trust t/a Perrott Engineering Pty Ltd[9] the Full Bench said that a genuine and reasonable belief by an applicant that the application has been made is relevant to explaining any period of delay between the attempt and the lodgement of material that is sufficient to constitute an application being made.[10] In making that assessment I think it is necessary to take into account that the two proceedings were of a different kind and were commenced against different respondents. This weighs against a conclusion that it was reasonable to believe that the ultimate application had been made. On the other hand, I acknowledge that the coverage provisions of the Act can present challenges for local government employees. I also take into account the fact that the applicant was aware that there were time limitations in place. She said she was in contact with the Commission about those limits, but she was apparently content to continue with her first application until she came to a view that it should be discontinued. By that time, the second application was well out of time.

• [25] The applicant's evidence about her contact with the Commission which was put forward as a reason for the delay lacked detail. No dates or times were provided. The limited detail that was provided about a conversation with Commission staff was that the applicant was told the General Protections application was in on time. This was correct, but it remained the applicant's responsibility to ensure that the application she was to ultimately pursue was filed within time.

• [26] To the extent the applicant seeks to rely on interactions with the Commission in relation to the General Protections application as a reason for the delay in filing the present application I do not regard the argument as persuasive. The General Protections application was filed within time. The applications to amend the General Protections application were made some 14 days after that application had been filed. The decision to seek to amend the General Protections application was a strategic one for the applicant. There was no satisfactory explanation as to why the applicant waited for the period she did before she sought to amend. The present application was then filed shortly after the discontinuance of the General Protections matter. Any interaction with the Commission between the decision to discontinue and the filing of this application would, even on a best case for the applicant, only account for a very small part of the overall delay. But in any case, I do not regard the evidence of the applicant on this point sufficiently detailed to accord it any significant weight.

• [27] I also do not regard the applicant's claim that she lacked available evidence at the time of termination as a satisfactory explanation for the delay. It was unclear as to what it was the applicant was deprived of or how that might have contributed to the delay. In any case, applications do not require detailed evidence at the time of lodgement. So much is plain from the Commission application forms themselves.

Any action taken by the employee to dispute the termination

• [28] Generally, where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[11]

• [29] In this case, neither of the individual respondents were on notice that proceedings may be brought against them until they were served with the present application. Insofar as the WSC is concerned, there were steps taken to dispute the termination by the commencement of the General Protections application, although this was subsequently discontinued after the statutory deadline. Further, the WSC was not formally notified of the applicant's intention to amend the present application to include them as respondents until the morning of the hearing.

• [30] I regard the initial steps to commence proceedings against WSC as weighing only slightly in the applicant's favour in the overall assessment given the discontinuance of the General Protections application and the belated amendment to the current application. I do not think there is anything favouring the applicant under this heading insofar as the proceeding relates to the individual respondents.

Prejudice to the employer (including prejudice caused by the delay)

• [31] The respondents argued that they would be prejudiced by an extension of time. As the requirement is to consider any potential prejudice to the employer, I focus my attention on potential prejudice to WSC. The respondent said that a respondent should be entitled to assume that there is no further risk of litigation relating to the employment after the expiration of the 21-day time period.

• [32] The respondents referred to the time and costs involved in defending a proceeding in the federal jurisdiction in relation to an employee regulated by state law. A relevant prejudice is one that the employer would not have suffered had the application been made within the time period. I do not consider that there would be a relevant prejudice to the employer in defending the matter that would not have arisen had the application been filed within time. I consider prejudice to the employer to be a neutral factor in the overall assessment. I note that the mere absence of prejudice does not by itself constitute exceptional circumstances.

• [33] It is not necessary to embark on a full examination of the merits of the application for present purposes. That would be a matter for a full hearing at a later date if an extension of time is granted. The respondent submitted that the applicant's essential complaint appeared to be a lack of "due process" at the time of termination and that there was no reasonable prospect that the applicant would be able to convince a court or tribunal that an unlawful termination claim had any merit on that basis. Further, the respondent said that the applicant's complaint related to apparent internal complaints about co-worker natural persons and not complaints about the employer to external bodies as required by s.772(1)(e).

• [34] The applicant relied on subsection 772(1)(e) as the unlawful reason for the termination.[12] The focus of the evidence was on the alleged "filing of a complaint" within the meaning of that subsection. The applicant acknowledged that at the time of the termination of her employment she had not lodged any complaint against her employer with any external body or authority. I am of the view that this raises real doubts about the prospects of the application. Predecessor provisions to s.772(1)(e) have been held by the courts to require that complaints be made to outside authorities or officials empowered to investigate allegations and that the ground would not be established by making of complaints to the employer alone.[13]

• [35] The applicant's case against the individual respondents is also not without difficulty. Section 772 is a civil penalty provision that proscribes certain conduct by an employer. Section 770 provides that in Part 6-4 "employee" and "employer" have their ordinary meaning. Plainly, the individual respondents were not at any time, the employer of the applicant. The basis upon which the application is pressed against the individual respondents is not clear in the application. I acknowledge that individual persons may for example, be involved in a contravention under the accessorial liability provisions contained in s.550. I also note that the respondents have raised the protection from any action afforded to employees of councils by s.731 of the Local Government Act (1993) NSW. Even assuming for the applicant that this provision did not present an obstacle, for an application against the individuals to succeed it would still be necessary for the applicant to establish both the necessary elements for accessorial liability, which is not free from difficulty[14], and a contravention of s.772, which for the reasons mentioned in the preceding paragraph, is also problematic.

• [36] The applicant's list of grievances against the individual respondents is lengthy. They include that she was terminated after she advised that sensitive information was being leaked to the media, that she was not afforded due process to respond to allegations during her probation, that the code of conduct for local government employees had been breached, that there were changes to her role to her detriment, that there was a failure to provide adequate training and a failure to address valid internal complaints. The issue for determination in an application of this kind however is whether the employer terminated the applicant's employment for the reason or for reasons including the reason set out in s.772(1)(e). I do not think the facts, at least as currently set out, provide a strong basis for an application of this kind.

• [37] I am of the view that the applicant's case on the merits of the application is weak and that this does not weigh favourably for the applicant in the overall assessment.

Fairness as between the person and other persons in a like position.

• [38] The parties did not bring to my attention any other persons in a like position and I am unaware that there are any such persons with whom the relevant comparison can be made. I regard this as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [39] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15] Exceptional circumstances may 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 can be considered exceptional. [16]

• [40] Having regard to all of the circumstances of this case and the matters in s774(2), and my views in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

By Video using Microsoft Teams at 10:00am AEST on Monday, 17 June 2024.

[1] Application - answer to question 2.3.

[3] See Iannou v. Northern Belting Services Pty Ltd [2014] FWCFB 6660.

[4] Hedger v. Trustee for Perrot Trust t/as Perrott Engineering Pty Ltd [2023] FWCFB 231at [52].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.

[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[7] [2023] FWC 1931.

[8] [2010] FWA 3939.

[9] [2023] FWCFB 231.

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[12] F9 Application Question 3.2 Courtbook page 108.

[13] He, in the matter of an application for Writs of Mandamus and Certiorari or Constitutional Relief against Lewin [ 2004] FCAFC 161at [44], Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347. See also Reeve v. Ramsay Health Care Australia Pty Ltd [2012] FWA 3141.

[14] Fair Work Ombudsman v. Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] and following.

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[16] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

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