Fair Work Act 2009_

s.365 - General protections

WA Composts Pty Ltd as trustee for the BIOS Unit Trust T/A Custom Composts

Application to deal with contraventions involving dismissal - Application lodged out of time - extension of time approved.

[1] Ms Janet Wood (the Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (the FW Act) claiming that she had been dismissed from her employment with WA Composts Pty Ltd as trustee for the BIOS Unit Trust T/A Custom Composts (the Respondent) because she exercised a workplace right.

[2] The application was lodged on 9 May 2013 and the date of dismissal was 25 January 2013. Clearly the application was lodged out of the 21 days allowed for the making of the application.

[3] The circumstances here are that the Applicant had previously lodged an application pursuant to section 394 (the Unfair Dismissal Application) of the FW Act. That application was lodged on 15 February 2013, within the time prescribed for Unfair Dismissal applications and had this application been made at that time, this application would have been within the prescribed time. The Applicant was represented by a legal practitioner at the time of lodging the Unfair Dismissal Application.

[4] The Respondent lodged a response to the Unfair Dismissal Application on 1 March 2013 disputing the claims in that application and foreshadowing an application to recover as it regarded the application as vexatious.

[5] A conciliation was conducted by the unfair dismissals team of the Fair Work Commission (the FWC) on 7 March 2013. It seems that a settlement was agreed upon at that conference, however the Applicant later withdrew her agreement apparently because a proposed deed of settlement included a term precluding any other legal actions the Applicant either had initiated or might initiate in future. The Unfair Dismissal Application was allocated to me and I conducted a directions conference on 1 May 2013. The Applicant was not represented at that conference and has represented herself in the matter at proceedings I have been involved in. On 7 May 2013 a discontinuance of the unfair dismissal application was received by FWC.

[6] The Applicant lodged this application on 9 May 2013. I conducted a conference on 25 June 2013 and it became clear that the Respondent opposed the application and objected to the FWC allowing the application as they asserted there were no exceptional circumstances as to why it was not lodged within the time allowed. The parties were required to provide documentation and information regarding whether the application should be allowed.

[7] The Applicant provided the following grounds in support of an extension of time:

"I first sought legal advice regarding these matters on 2 November 2012 after receiving the respondents letter entitled FIRST & FINAL WARNING on 1 November 2012 back-dated to 22 October 2012.

My response, drafted by my legal representative clearly makes the connection between the threat of dismissal and my workers compensation claim on 26 October 2012.

The Workers Compensation Conciliation Certificate was issued and emailed to all parties on 24 January 2013. No resolution had been reached. Later the same day I received an email from Mr Cullen requesting my attendance at a meeting the next day to discuss my performance.

At the end of the meeting my employment was terminated.

I immediately (sic) sought legal advice from the same legal representatives who submitted a claim for unfair dismissal. I made it clear that I believed I had been dismissed because of putting in a claim for workers compensation. I was never advised that I could submit a claim under General Protections.

As soon as I gained employment on 12 February 2013 I informed my legal representative.

Only at the conciliation hearing on 7 March 2013 did I first learn about an alternative route during a private conversation with my legal representative. He also advised me that I was out of time.

I allowed myself to be guided by the "expert" and would have signed the settlement agreement offered had I not been floored by the breadth and depth of the agreement.

I dismissed my legal representative on the grounds that I had been badly advised and what limited funds I had available had been totally wasted.

I continued down the Unfair Dismissal avenue until it became apparent at the Directions Conference held on 1 May 2013 that it would not provide the remedy I sought.

I asked Deputy President McCarthy whether I could make a late application for FWA to deal with a General Protections Dispute. He said I could make a submission in writing.

The submission was made dated 7 May together (sic) with Form F8 and Form F50."

[8] The Respondent provided an outline of submissions and a statement by Mr David Cohen a director of the Respondent. Mr Cullen stated amongst other things that:

1. The Applicant's employment was terminated due to unsatisfactory performance and these performance issues had been brought to the Applicant's attention and the procedures adopted in endeavouring to address concerns about her performance.

2. The Respondent disputes the Applicant's contention that the termination was due to her lodging a workers compensation claim. Rather Mr Cullen states that the termination was due to ongoing and the rewriting workplace conduct.

3. The Applicant's employment was terminated at a meeting on 25 January 2013 and Mr Cullen became aware some time later that the Applicant had without his knowledge recorded that meeting. He says that this conduct was a further example of the Applicant's misconduct.

[9] On 2 July 2013 the Applicant lodged further contentions disputing some of the statements made in the Respondent submissions and also some elements of Mr Cullen's statement.

[10] The reason for the delay in this matter is clearly one arising from the lodging of the Unfair Dismissal Application, which the Applicant on rflection considers should have more properly been lodged as an application s.365. It seems the initial decision to lodge an unfair dismissal claim was one the Applicant took based on advice from her then legal representative. Arguably this could amount to a case of representative error however it is unclear precisely what advice was provided to the Applicant.

[11] The Applicant clearly took action immediately following her termination to ascertain her rights and to dispute the dismissal and take action against the employer over the dismissal.

[12] I consider the employer will be prejudiced by the delay however I do not consider that any prejudice will be significant.

[13] The merits of the application depend upon ascertainment of and findings regarding the factual situation and circumstances surrounding the dismissal. It does seem to me even on the Applicant's own version of events that there is a relatively weak case although it is an arguable case.

[14] I do not consider that the Applicant would be placed in a more advantageous position to other persons that could be in a like situation or in similar circumstances. I consider that fairness between the Applicant and other persons weighs in favour of the Applicant.

[15] I find that exceptional circumstances do exist here and I will allow an extension of time to the date of lodged with this application namely 9 May 2013.

Mr M Stutley for the Respondent company 2 & 3 July 2013

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