1
Fair Work Act 2009
s.365—General protections
Belinda Grant
v
CSL Limited T/A Bio CSL
(C2014/7823)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 JANUARY 2015
Application to deal with contraventions involving dismissal; application made outside the
time prescribed under s.366; representative error said to be reason for delay; exceptional
circumstance; time within which to make an application under s.356 extended; dispute
referred to conference
Introduction
[1] Ms Belinda Grant (Applicant) was employed by CLS Limited (Respondent) until the
termination of her employment on or about 27 March 2014. The Applicant has applied to the
Fair Work Commission (Commission) under s. 365 of the Fair Work Act 2009 (Act) for it to
deal with a general protections dispute involving a dismissal. The application was lodged on
18 November 2014 and concerns an allegation of adverse action having been taken by the
Respondent, namely the dismissal of the Applicant on 27 March 2014, in contravention of
sections 340 and 351 of the Act. As the application is made outside the prescribed period
within which such applications may be made, the Applicant asks the Commission to allow a
further period in accordance with s. 366(2) of the Act.
Background
[2] The Applicant first commenced employment with the Respondent on 14 August 1995.
At that time the Applicant was located in Sydney. In July 2000 the Applicant relocated to
Melbourne to take up a position of State Sales Manager – Victoria Tasmania Pharmaceuticals
with the Respondent.
[3] In or about July 2012 the Applicant commenced a period of maternity leave. At the
time the maternity leave commenced the Applicant had intended to return to work on 5
August 2013. The Applicant is a single mother.
[4] On or about 12 April 2013 the Applicant gave notice to the Respondent that she
proposed to return to work on a graduated basis commencing two days per week for the
period 5 August 2013 to 13 January 2014. Thereafter the Applicant proposed to work four
days per week. The Applicant proposed a number of alternatives, but in essence she was
seeking flexible working arrangements upon her return to work from maternity leave.
[2015] FWC 135
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 135
2
[5] Variously between 12 April 2013 and until the date of her dismissal, the Applicant and
the Respondent engaged in correspondence and held meetings concerning, inter alia, the
Applicant’s return to work arrangements and extension of the Applicant’s period of maternity
leave.
[6] On or about 19 December 2013 the Applicant made a complaint to her employer about
conduct that she had experienced, which she alleged was discrimination and about that which
she regarded as an unreasonable response to her return to work from maternity leave on
flexible work arrangements. The Respondent investigated the Applicant’s complaint. The
outcome of the investigation was communicated to the Applicant during a meeting with the
Respondent on 20 January 2014 and in correspondence from the Respondent to the Applicant
also dated 20 January 2014.
[7] As to the request for flexible working arrangements, the Respondent maintained that it
was necessary for the role carried out by the Applicant to be undertaken on a full-time basis as
it was a business critical role. The Respondent required the Applicant to return to work at the
conclusion of the extended maternity leave from 31 January 2014. The Applicant ultimately
did not return to work on that day, as she was required to undergo surgery on 3 February
2014.
[8] Thereafter further discussions between the Applicant and the Respondent ensued about
flexible work arrangements and a return to work. Ultimately the impasse between the
Applicant and the Respondent remained that the Applicant wished to return to work on a four
days per week basis and the Respondent maintained that it could not accommodate this
because of the business critical nature of the role. Therefore the Respondent refused the
Applicant’s flexibility request, it says on reasonable business grounds. The Applicant’s
employment was terminated with effect from 27 March 2014. She did not return to work prior
to her dismissal. The Applicant received a payment in lieu of notice and accrued entitlements
on the termination of employment.
[9] There is some dispute about when the Applicant received notice. The Applicant said
that she believed that she received notification of the termination of her employment on or
about 3 April 2014. It was put by the Applicant that the termination of her employment did
not take effect until she received notice. The Respondent’s evidence was that it had sent its
letter containing the notice of termination by prepaid express post on 26 March 2014. It also
led evidence that the letter was delivered by express post to the Applicant’s last known
residential address on 27 March 2014. The Respondent’s evidence was also that by letter
dated 3 April 2014, it sent to the Applicant an employment separation certificate also dated 3
April 2014. This may explain the Applicant’s recollection that she received notice of her
dismissal on 3 April 2014. Ultimately I accept the Respondent’s evidence and am satisfied
that the notice of termination was delivered to the Applicant on 27 March 2014 and that the
employment ended on that day, but even if the Applicant’s version of events were correct, an
extension of time to lodge an application under s. 365 of the Act is still required since that
application was not lodged until the 18 November 2014.
[10] So far as this application is concerned, there is no dispute that the dismissal of the
Applicant and Respondent amounted to adverse action taken by the Respondent within the
meaning of s. 342 of the Act. The Applicant alleges that the adverse action was taken because
she had exercised a workplace right, inter alia, that she had made a request for flexible work
[2015] FWC 135
3
arrangements and that she had made a complaint or inquiry in relation to her employment in
contravention of s. 342. The Applicant also alleges that the adverse action was taken because
of her family or carer’s responsibilities in contravention of s. 351.
[11] On 22 April 2014 the Applicant made an application under s. 372 of the Act.
Applications of that kind request the Commission to deal with a dispute concerning general
protections matters involving adverse action which did not include a dismissal. The
Respondent agreed to participate in a conference conducted by the Commission.
[12] On 22 May 2014 Commissioner Lee conducted a conference under s. 374 of the Act.
The parties were unable to resolve the issues in dispute. At the conference the solicitors for
the Applicant foreshadowed an application to amend the application made under s. 372 of the
Act to an application brought under s. 365. An application to amend was subsequently made.
The Respondent indicated that it did not oppose the application to amend but wished to
oppose the amended 365 application on the basis that it was lodged outside the time
prescribed by s. 366.
[13] The questions of amendment and extension of time were referred to me for
determination. I issued directions for the programming of the matters. Subsequently the
hearing of the amendment application was delayed pending the determination by a full bench
of the Commission of which I was a member, of a similar question that was raised in Ioannou
v Northern Belting Services Ptd Ltd.1
[14] The application to amend came on for hearing before me on 17 November 2014.
Ultimately it was not necessary to determine the amendment application as the Applicant
agreed to discontinue her s. 372 application and to file a s. 365 application, which she did on
18 November 2014. This course was not opposed by the Respondent subject to its s. 366
objection.
[15] For its part the Respondent agreed that the delay which had occured in making the
s.365 application since the initial s. 372 application, is satisfactorily explained by the
Applicant’s belief that she could amend that application and that she took prompt and
appropriate steps to do so. The Respondent also agreed that the delay is also satisfactorily
explained by the need to await the outcome of the decision in Ioannou. In essence, the
Respondent accepts that these reasons are acceptable reasons for the delay for the period
following the initial s. 372 application and the making of the application under s. 365 on 18
November 2014. In my view these were appropriate and proper concessions for the
Respondent to make and I accept that the explanation given for that period is an acceptable
reason for the delay. That leaves for determination whether there are exceptional
circumstances that would warrant the exercise of my discretion to allow a further period
within which this application under s. 365 may be made.
Principles for allowing applications to be lodged outside the prescribed time limit
[16] The Applicant’s dismissal took effect on 27 March 2014. This application was made
on 18 November 2014. The application should have been made within 21 days after the
dismissal took effect. The Commission may allow a further period within which an
1 [2014] FWCFB 6660
[2015] FWC 135
4
application may be made. The discretion to allow a further period will only be exercised if the
Commission is first satisfied there are “exceptional circumstances”, taking into account:
The reason for the delay;
Any action taken by the person to dispute the dismissal;
Prejudice to the employer (including prejudice caused by the delay);
The merits of the application;
Fairness between the person and other persons in a position.
[17] It is clear, from the structure of s. 366(2) of the Act that each of these matters must be
taken into account when assessing whether there exist “exceptional circumstances”.
“Exceptional circumstances” are circumstances that are out of the ordinary course, unusual,
special or uncommon but the circumstances need not be unique, unprecedented or very rare.
Reason for the delay
[18] There must be an acceptable reason for the delay2. The Applicant needs to provide a
credible reason or credible reasons explaining the whole of the period that the application was
delayed3. I have already earlier accepted for the reasons given that there is an acceptable
explanation of the delay for the period after the original s. 372 application was made and the
lodgement of the s. 365 application on 18 November 2014. The original application was
lodged on 22 April 2014. A valid application under s. 365 should have been made by 17 April
2014.
[19] The Applicant has advanced the representative error as the reason for the delay.
[20] The representative error said to have been made is twofold. First the nature of the first
application lodged by the Applicant and prepared by her solicitor was said to be contrary to
the Applicant’s instructions that an application concerning an unlawful dismissal be made on
her behalf4. That these were the instructions given by the Applicant to her solicitor is not
contested and I accept that the original application prepared by the Applicant’s solicitor was
not consistent with the instructions given and consequently necessitated that which followed
and described earlier above. I accept that the Applicant was entitled to rely upon the advice
given to her by her solicitor and should not be held responsible for the error that was made in
the nature of the original application made to the Commission.
[21] Secondly, the Applicant lodged the original application on 22 April 2014. If that
application properly engaged s. 365 of the Act, it would have been five days outside of the
time prescribed. The Applicant’s solicitor gave evidence that after a period of absence from
work due to influenza, she attended her office on 17 April 2014 to complete the application.5
The Applicant’s solicitor also gave evidence that she was convinced that the application was
not due to be lodged until 22 April 2014 taking into account the intervening public holidays,
that she communicated this to the Applicant, and that she accepts that she miscalculated the
date on which the application (had it been a s. 365 application) was due.6 The Applicant’s
2 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230]
3 See Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at [408] – [409]
4 Exhibit A4 at [5] and exhibit A1 at [5c]
5 Exhibit A4 at [8]
6Ibid at [9] – [10]
[2015] FWC 135
5
evidence was that her solicitor did not speak to her about whether the Easter public holidays
counted in the calculation of time. 7 However I do not regard this evidence as inconsistent
with the evidence given by the Applicant’s solicitor because the Applicant also gave evidence
that the solicitor did not tell her to file the application immediately upon its receipt from the
Applicant’s solicitor (21 April 2014) and that she could “drop it into the Fair Work
Commission in the morning on the Tuesday”8. On the totality of the evidence I accept that the
Applicant relied upon the advice of her solicitor about when she could lodge her application.
The Applicant’s solicitor said that she had calculated the date on which the application could
be lodged to be Tuesday, 22 April 2014 and the Applicant said that her solicitor told her that
she could drop of the application to the Commission in the morning of Tuesday (22 April
2014).
[22] The Respondent submitted that the Applicant was responsible for lodging the
application. Whilst I accept that the Applicant acknowledged that she undertook responsibility
for lodging the application, this misses the point about the nature of the representative error.
The Applicant lodged her application shortly after receiving it from her solicitor on 21 April
2014. By that time, the time for make the application had passed, but the solicitor believed it
had not. The Applicant had engaged a solicitor experienced in the relevant field and of high
standing in the profession. The Applicant was entitled to rely upon advice given to her by her
solicitor. The Applicant’s solicitor told by her that she could lodge the application on
Tuesday, 22 April 2014. The Applicant solicitor gave evidence that she miscalculated the
timeframe and that this was an error on her part. I accept that the Applicant relied on, and
indeed was entitled to rely on the advice given to her by an experienced solicitor about the
date on which she could lodge the application. That advice, as it turned out, was erroneous.
[23] The Respondent also submitted that the Applicant did not take a sufficient enough
interest in the lodgement of the application because she did not take steps to ensure progress
of the application between 6 April 2014 and 17 April 2014. Whilst I accept that, on the
evidence this appears to be the case, ultimately, the reason for the delay was the erroneous
belief held by the solicitor, the advice based on that erroneous belief given to the Applicant
solicitor, and the Applicant’s reliance on that advice. This is not a case where the Applicant’s
inactivity contributed to the delay. The Applicant’s solicitor was absent from work until 17
April 2014 because of influenza. The Applicant’s solicitor believed that the Applicant had
until 22 April 2014 to lodge an application. That the Applicant could make her application by
22 April 2014 was communicated to the Applicant by the Applicant’s solicitor. The Applicant
relied upon that advice. The advice was erroneous. There can be no suggestion in my view
that the Applicant should be held responsible for the erroneous advice given in the
circumstances of this case having regard to the experience and high standing in the profession
of the solicitor that she engaged.
[24] I accept therefore, that there is an acceptable explanation for the delay of the whole of
the period between 17 April 2014 and 19 November 2014. This is a factor that weighs in
favour of the Applicant but it is only one of the matters to which regard must be had.
Any action taken by the Applicant to dispute the dismissal
7 PN 397
8 PN 399
[2015] FWC 135
6
[25] It seems common ground that apart from making the original application and this
application, the Applicant did not take any step to dispute her dismissal after the date on
which it took effect. There seems also little doubt that there has been a long period of ongoing
disputation between the Applicant and Respondent about her return to work, the
circumstances in which that return to work might be facilitated and that the Applicant
engaged legal representation to further her interests. That the application was ultimately made
should not have come as a surprise to the Respondent.
[26] In my view little store can be placed in the fact that the Applicant took no steps to
dispute her dismissal on days which either fell on a weekend or were public holidays and in
the circumstances, I regard this consideration is essentially neutral.
Prejudice to the employer (including prejudice caused by the delay)
[27] The Respondent accepts that it will not suffer any significant prejudice, beyond that
which usually obtains from being required to respond to an application of this kind, should an
extension be granted. The absence of prejudice is itself an insufficient basis for granting an
extension of time, and in the circumstances of this case, I regard this factor as neutral.
The merits of the application
[28] This is an application invoking the general protections provisions of the Act. On the
face of the material available to me, it seems clear that the Applicant will be able to establish
that she had, had exercised, or proposed to exercise, a workplace right. It is common ground
that the dismissal of the Applicant on 27 March 2014 was adverse action taken by the
Respondent against the Applicant within the meaning of the Act. The Applicant alleges that
the adverse action was taken because she had, had exercised or proposed to exercise, a
workplace right, and that adverse action was also taken in contravention of s. 351 of the Act.
Given the terms of s. 361, it may readily be concluded that the Applicant’s application is not
without merit. So much was conceded by the Respondent. Beyond this the allegations made
by each of the Applicant and the Respondent are contested and in particular the central issue
in dispute, that is the reason for the dismissal, is seriously contested and it is not practical in
hearings of this kind, to conduct a full evidentiary hearing to determine merit. Moreover
neither party sought to lead evidence going to merit. However the fact that the Applicant’s
claim is not without merit weighs in favour of the Applicant.
Fairness as between the person and other persons in a like position
[29] Cases of this kind will generally turn on their own facts, however this consideration is
concerned with the importance of the application of consistent principles in cases of this kind,
thus ensuring fairness as between the Applicant and other persons in a similar or like position.
This Commission and its predecessor have consistently accepted that representative error for
which an Applicant is held blameless, provides a basis for accepting that representative error
causing delay is an acceptable explanation for the delay occasioned in bringing, relevantly
this kind of application. Given my earlier findings about representative error, it seems to me
that this consideration weighs in favour of the Applicant.
[2015] FWC 135
7
Conclusion
[30] The statutory time limitation applicable to the exercise of a person’s right to make a
general protections dismissal related application is an expression of Parliament’s intention
that rights must be exercised promptly within a particular time so as to bring about certainty.
Time limitations seek to balance one person’s right to bring an action, against another
person’s right to know with certainty that questions about actions that they have taken will be
agitated within a particular period, otherwise that right is lost.
[31] I have earlier accepted that the representative error occasioned by the wrong
application being drafted by the Applicant’s solicitor, the erroneous advice provided to the
Applicant by her solicitor about the time within which such an application may be made and
the delay occasioned by the need to apply to amend the original application, combine to
provide an acceptable explanation for the delay in bringing the application under s. 365 of the
Act. Given that the other factors to which regard must be had, are either neutral or weigh in
favour of the Applicant, I am satisfied taking into account all of those matters that there are
exceptional circumstances which warrant consideration of whether to exercise my discretion
to allow a further period within which the Applicant’s s. 365 application may be made.
[32] Apart from addressing the specific matters in s. 366 of the Act, neither party pointed to
any particular discretionary consideration that might be relevant in deciding whether to extend
time. I am not aware of any consideration, which would weigh against the exercise of my
discretion and having concluded that there are exceptional circumstances I am persuaded to
exercise my discretion to allow the Applicant a further period within which to lodge her
application.
[33] Accordingly I allow the Applicant until 18 November 2014 to make an application
under s. 365 of the Act. An order to that effect is issued separately in PR559846.
[34] A conference will be conducted pursuant to s. 368 (2) for the purposes of dealing with
the dispute. A notice of listing scheduling the conference will be issued separately.
DEPUTY PRESIDENT
WORK COMMISSION SEAL OF AR WORK AHK
[2015] FWC 135
8
Appearances:
S. Zeitz for the Applicant
E. MacDougal for CSL Limited
Hearing details:
Melbourne.
2014.
8 December
Final written submissions:
Applicant, 12, 23 December 2014
CSL Limited, 19 December 2014
Printed by authority of the Commonwealth Government Printer
Price code C, PR559792
