1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Samantha Lock
v
General Assembly Australia T/A General Assembly
(C2015/526)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 3 SEPTEMBER 2015
Application to deal with contraventions involving dismissal; application made outside of the
time prescribed; whether there are exceptional circumstances; whether discretion to extend
should be exercised; further period allowed.
Introduction
[1] Samantha Lock (Applicant) has made an application to the Fair Work Commission
(the 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 12 March 2015 and
concerns an allegation that adverse action was taken by General Assembly Australia
(Respondent), being the dismissal of the Applicant on 18 February 2015, in contravention of
s.340 of the Act. As the application is made outside the prescribed period by s.366(1)(a) of the
Act, the Applicant asks the Commission to allow a further period in accordance with s.366(2)
of the Act.
Background
[2] The Applicant commenced employment with the Respondent on 2 December 2014. I
use the term ‘employment’ advisedly as there is a dispute between the parties whether theirs
was a relationship of employer and employee or one of principal and contractor. Self-
evidently, if the relationship was one of principal and contractor the ending of that
relationship on 18 February 2015 was not a dismissal and so adverse action in the form of
dismissal as alleged by the Applicant could not have been taken.
[3] In applications made under s.365 of the Act, it is not the Commission’s function to
determine questions of jurisdictional fact such as whether there was a dismissal.1 However,
the question is relevant in assessing the merits of the application having regard to the matters
which the Commission must take into account in determining whether there are exceptional
circumstances warranting the exercise of the Commission’s discretion to extend the time
period within which applications of this kind may be made.
1 See Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321
[2015] FWC 6036
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 6036
2
[4] The Applicant was engaged by the Respondent as a Front Lines Producer. The
advertisement for the position in respect of which the Applicant applied, was described as ‘a
part-time contractor position in Melbourne, AU’. The Applicant took steps to establish herself
as a contractor by obtaining an ABN. The rate agreed for the services to be provided by the
Applicant was $20 per hour.
[5] The position of Front Lines Producer required the Applicant to provide various
services including:
greeting students and instructors and checking them in for classes and events;
setting up rooms for classes and events;
tidying up before and after classes and events;
assisting instructors with setup of projectors/presentations prior to class; and
troubleshooting technical issues.
[6] The Respondent maintains that it was a critical element of the Applicant's position that
she be reliable, timely and organised and at all times display strong customer service skills.
[7] It says that during the Applicant's engagement, it became apparent to the Respondent
that the Applicant was not performing the services to the standard required by the
Respondent. In particular, the Respondent maintains that the Applicant:
arrived late on a number of occasions and was unable to greet students and instructors
to check them in for class;
on a number of occasions failed to set up rooms for classes and events as a result of
arriving late and/or being disorganised;
failed to tidy up before and after classes and events and restock supplies for the
students and instructors; and
spent time on Facebook in clear view of new students when she was supposed to be
providing services to the Respondent.
[8] The Respondent asserts that on 18 February 2015 the Applicant was advised that she
was no longer required in her contractor position. The Respondent says that it explained to the
Applicant that the contract for services had been terminated effective immediately as a result
of her inability to provide the services to the required standard.
[9] The Applicant maintains that the contractor arrangement was a sham and that the
Respondent misrepresented that which in reality was an employment relationship, as one of
principal and independent contractor. The Applicant disputes the reasons which are said to
have resulted in the decision to terminate the relationship and says that the reason for the
termination, which she maintains was a dismissal, was her exercise of a workplace right,
namely making a complaint or inquiry in relation to payment.
[2015] FWC 6036
3
Principles for allowing a further period with which applications may be lodged
[10] The Applicant’s dismissal took effect on 18 February 2015. This application should
have been made within 21 days after the dismissal took effect, that is by no later than 11
March 2015. The application was lodged at 12:57am on 12 March 2015. The Commission
has discretion to allow a further period. The discretion to allow a further period within which
an application may be made will only be exercised if the Commission is first satisfied there
are ‘exceptional circumstances’, taking into account:
The reason for the delay; and
Any action taken by the person to dispute the dismissal; and
Prejudice to the employer (including prejudice caused by the delay); and
The merits of the application; and
Fairness between the person and other persons in a position.
[11] It is clear from the structure of s.366(2) of the Act that each of these matters be taken
into account when assessing whether there are ‘exceptional circumstances’. Individual matters
might not, when viewed in isolation, be particularly significant. So it is necessary to consider
not only the matters individually, but to ask whether collectively the matters show that in a
particular case there are exceptional circumstances. ‘Exceptional circumstances’ is not
defined in the Act specifically, however it is generally accepted that ‘exceptional
circumstances’ are circumstances that are out of the ordinary course, that are unusual, special
or uncommon, but the circumstances do not need to be unique or unprecedented nor do they
need to be very rare.
[12] I turn to consider the application to allow a further period.
Consideration
Reason for the delay
[13] The Applicant gave several reasons for the delay in lodging the application.2 These
reasons are best set out in the following exchange recorded in transcript:
Ms Lock, can I ask you this, as I understand it your - just let me turn to your submission.
Fundamentally, the reason you give for the delay is that it was your medical condition which
prevented or contributed to you lodging your application on time?---Yes, sir.
Accordingly to the Commission's records, the application was received on 12 March 2015 and
it was a day outside of the time prescribed. Can I ask you to - well, before you do that, are
you able to tell me how it is that you lodged the application?---With the Fair Work
Commission?
Yes?---I lodged the application online. I was aware that it was a 21 day period. The process
of lodging the application was quite challenging for me, I didn't have any legal representation.
I was aware from my own independent research that I needed to inform the employer of my
grievances and I spent a lot of time educating myself as to where I stood, in order to lodge that
informal claim to the employer, which I did within seven days of being dismissed.
2 See Exhibit A1
[2015] FWC 6036
4
That's the letter of demand that the employer refers to in its submission?---Yes, sir. I then
gave the employer 14 days to respond because I felt 14 days was a fair period of time. So in
total the time spent for me to lodge my informal letter of demand and complaint and the 14
days that I gave the respondent to respond came to 21 days, which to me was - yes, I guess
quite challenging considering that I didn't have any legal representation. And on top of that I
was finding it incredibly difficult to perform daily tasks and function effectively.
You will see in your application, if you turn to page 11, that the application was signed on the
9th?---I actually filled out this application online ahead of actually sending it.
Yes, and I accept that but it seems as though - well, you wouldn't sign and date it until you've
completed the form. That's a fair assumption isn't it?---Yes.
It seems as though you completed the form by 9 March, which in Victoria at least was a public
holiday, yes?---Yes, sir.
What's the explanation for the delay between 9 March and the date on which you filed it,
which was 12 March?---The delay was due to hearing a response from General Assembly, the
employer. I had - sorry, I didn't actually look at the date that I signed this application but I
filled out this application ahead of time, knowing I guess that I should be prepared and stating
where I stood. At the time from hearing back from the employer, I had recently arrived back
from Sydney, which is where I had originally lived and it's where I had seen Dr Balafas and
another psychologist, and it was also the period of time where I had moved into my new place
of residence here in Melbourne and I had also just started university. I didn't have any internet
connection in my home, so as I remember, when I filed this form it was during that time when
I had just arrived back from Sydney and I believed that I had another day to file.
Ms Lock, is this a fair proposition: even if I accept that at or about that time you were
suffering from a heightened anxiety and a heightened impact from a depressive illness, in and
of itself that didn't prevent you from making the application because it seems, on the face of it
at least, by 9 March you were certainly capable of completing the form?---Yes, sir.
And that what happened after that was that in effect you were waiting for your employer to
reply to your letter of demand, that your life was otherwise busy because you were studying,
and because you were - you had just moved house and you were still getting yourself
organised in that place, and ultimately you thought that 12 March was in fact the last day you
could file it?---Yes, sir. I mean I think that the fact that I did fill this form out and I had been
prepared, knowing the small amount of time that I had, indicates that I was well intentioned
and I - - -
Ms Lock, you shouldn't take anything that I'm suggesting as critical, I'm just trying to
understand what actually caused the delay. It seems to me it was, from what you've indicated,
there were a number of things that contributed to the delay but ultimately in your mind the last
day that you'd calculated that you could file the application was 12 March. Is that a fair
statement?---Yes, sir. I think that probably what added to the confusion, potentially, with the
date is that with my condition, which you are welcome to speak to Dr Balafas about, much of
the anxiety is to do with rolling panic attacks which can have me, basically, completely
ineffective and debilitated for days. It means I can't sleep, I can't eat, I can't - essentially I just
can't do anything, and it makes me entirely lose track of time, I'm not able to concentrate or do
any task.
Ms Lock, you're under oath, so is it your evidence that during that period, say, between 9
March and 12 March, when you lodged the application, you were suffering from
that?---Absolutely. That's why I went to Sydney to receive treatment.
[2015] FWC 6036
5
When did you go to Sydney?---I went to Sydney, sorry, I don't have my diary with me right
now. I would have gone to Sydney two times over that period and the second time I went to
Sydney was probably just after I'd had completed the bulk of this form ahead of time.
Did you lodge the form electronically from Sydney or from Melbourne?---It would have been
from Melbourne.
So by 12 March you were in Melbourne?---Yes, sir.
Were you in Melbourne on 11 March?---I'm actually unsure if I was in Melbourne or Sydney;
I don't have my diary on me, I can't be definite about that.
When you give evidence that your mental illness and panic attacks manifest themselves in an
ability to function that doesn't include travel?---Sorry, are you referring to if the travel
between Melbourne and Sydney impacted on my ability to lodge the form?
My question really is whether - you gave evidence that during that period between the 9th and
the 12th you were in the state that you indicated, panic attacks leading to an inability to
function. What I'm asking is whether if you were travelling during that period does that - it
seems as though the disability, or the symptoms of the disability, don't seem to impact your
capacity to travel?---No, I'm able to travel. It's a short trip to Sydney and the reason why I
went to Sydney was because I felt that for my sanity and mental health at the time I really
needed to go to - as I said, I am from Sydney, I grew up in Sydney. My family GP and my
psychologist and psychiatrist are in Sydney.
During that time presumably you would have booked airline tickets?---Yes, sir.
You did that online?---I should, yes, sir.
In relation to some of the other matters that I need to take into account, you wrote a letter of
demand to your employer about a week after you were dismissed. Is that right?---Yes, sir.
Without disclosing the "without prejudice" basis of it you made certain demands in relation to
your dismissal. Is that right?---Yes, sir.
You say that that letter of demand gave the employer 14 days within which to respond?---Yes,
sir.
Are you able to tell me when precisely you sent the letter?---I sent the letter electronically on
25 February 2015 and I believe I delivered a physical copy to Bart Macdonald the day after,
on 26 February.
But you sent it by email on the 25th?---Yes, sir.
Did you specify a date by which a response should be given or did you just say two weeks?---I
believe I did. I sent the letter electronically 25 February and I stated, at the end of my letter,
"If I do not receive a positive outcome from you within 14 days" - -
Within 14 days would be 11 March?---Yes, sir.
You say at the time you knew that there was a 21 day limit?---Yes, sir.
Is it your evidence that you calculated the timing of your letter, together with the response, to
give you sufficient time in which to file the application?---Yes, sir.
[2015] FWC 6036
6
At that stage you calculated that 21 days would expire on the 12th?---Yes, sir.3
[14] As is apparent from the above exchange a combination of factors are said to have
contributed to the delay. These factors included the Applicant’s medical condition (diagnosed
as anxiety and depression)4 and its impact on her capacity to cope and meet deadlines; the
Applicant’s miscalculation of the time frame within which an application could be made;
waiting for the Respondent to respond to the Applicant’s previous demands; and technical
difficulties encountered in trying to lodge the application.
[15] Dr John Balafas is the Applicant’s treating physician. In addition to providing a
medical certificate setting out the Applicant’s medical condition, Dr Balafas gave the
following evidence:
THE DEPUTY PRESIDENT: All right. I will mark that document as an exhibit in these
proceedings. I'll give it a number shortly. Now, I'm assuming, Dr Balafas, that you examined
Ms Lock at a time contemporaneous with the preparation of that certificate?---Yes.
All right. Are you able to give me some details about that?---On that date?
On that date or at an earlier date?---Yes. I've got to refer to my - - -
Yes. That's alright?---Yes, I had examined her on that day when she actually come in and
seen me, and we discussed – and there was a general physical examination done, but we, you
know, discussed her issue with the ongoing anxiety problems and trying to treat the matter
quickly and we had discussed how it's affected – or had been impacted by the issues she has
with her employer, and subsequently how her anxiety had been difficult with her getting
herself together and help her to lodge a claim in time. I believe we discussed it on that day.
Right?---These matters.
Okay. Can I ask you this, Dr Balafas - - -?---Yes, sure.
- - - did you examine or treat Ms Lock at any time during the period between 18 February
2015 and 12 March 2015?---I did not treat her during that period.
Okay. So, you're not able to express a view about the impact of her condition during that
period, other than by reference to the history that Ms Lock may have given you during your
consultation on 9 April; is that fair?---I had seen her on many occasions before and had a
pretty good understanding of her issues.
Alright?---And so it was not a surprise to me, you know, on that date that she'd not been
coping well.
Alright. And your evidence is that, in your medical opinion, her anxiety and depression
affected her ability to make the application that she made within the time prescribed?---Yes.
Look, I do. You know, again I'll – yes is the answer. But, again, it's fairly clear to me to see
that she wasn't coping, that she was having problems with the employer which made her
anxiety worse. Once her anxiety had got to a higher level, then, you know, she comes apart
and really doesn't cope well at all, and being – a sign of that is not meeting deadlines. That's a
typical sign of somebody not coping.5
3 Transcript (12 May 2015) PN 68-PN 97
4 Exhibit A2
5 Transcript (19 August 2015) PN 23-PN 32
[2015] FWC 6036
7
[16] Later, Dr Balafas gave the following evidence:
MR KENNEDY: Can I ask Dr Balafas, then, that, I mean, given that he hadn't actually seen
Samantha during the period up to 11 March, he doesn't actually know what mental state
Samantha was in at that point in time; is that correct, Dr Balafas?
THE DEPUTY PRESIDENT: Dr Balafas, did you hear that question?---I believe it was I
hadn't seen her in that period of time so I wasn't able to adequately assess.
That's the gist of the question, yes?---Yes. I don't think that's – I mean, that's – I didn't
examine her during that period, but she clearly described to me when I had seen her, the
history, and the history is as important as, you know, a physical examination, or, you know, if
someone comes into your practice you're able to assess their state, their mood, their effect, you
know, their level of – whether they're happy or they're sad, but just as important as that is the
history. You know, and the history is not at odds at all with the history that I understand for
her to have in the past. The history was in keeping and fit with my understanding of her
mental health and problems, the complex problems she'd had with mental health.
MR KENNEDY: But generally Samantha is capable of functioning on a – well, a functioning
level. She can, you know, prepare correspondence, she can attend University, she can arrange
tickets to travel, examples to fly. You wouldn't say that there's any particular impairment that
stops Samantha functioning generally well?---Well, she's competent and capable of
performing intelligent tasks, but I've seen – you know, I have colleagues that have been
cardiothoracic surgeons that their life has fallen apart from mental health issues that, you
know, have not made it to work, that have not completed documents in time to, you know, to
have their registration renewed, and, you know, I've seen people operating at an extremely
high level that have fallen apart with mental health problems. You know, that have not been
able to meet deadlines and meet their responsibilities or commitments. So it isn't at all
surprising to me, and it actually fits her history.
So you've said in your certificate that Samantha suffers from anxiety and depression; is that
correct?---She has a long history and I'm aware that she's had – she's been hospitalised and had
big panic attacks. She's been diagnosed with complex post-traumatic stress disorder. There
have been a number of psychiatric diagnoses in the past. I'm not a psychiatrist, I'm a GP.
We'll state at that at the outset. But I am aware of her longstanding issues with anxiety and not
coping well with stress.
Yes. Would Samantha being able to write correspondence or research legal issues, attend
University, arrange to go to University, would that be inconsistent with her being, I suppose,
incapacitated from her current illness?---Can you repeat that question, please?
What I'm putting to you is, during this hearing, there's evidence that's been given that, during
the periods of 25 February through to 11 March, Samantha wrote lengthy letters to the
respondent in this matter. She arranged to go to University, attended University, studied. She
booked flights to fly to Sydney, and travelled back and forth to Sydney, and she seems to carry
out a lot of activities during that period which would suggest that she was capable of
functioning quite normally during that period. The fact that those activities were undertaken,
would that indicate to you that she was functioning quite well during that period?---I think a
differentiation needs to be made, you know, between lodging an application for something
that's probably quite stressful to you to performing daily duties. For her to sit down and
[2015] FWC 6036
8
prepare a document, I don't know what the content of it was but I'm sure it would contain
things that would make her upset, you know, and it would've been a stressful thing for her to,
you know, undertaking a Court case. And I think that would have been quite hard to do, and
that would've made her quite anxious, and that anxiety would have interfered with that in such
a way that, you know, if she had been unwell with, let's say she had cholera, you know, for
two weeks, that would have impaired her in preparing an application, and mental health is not
unlike other medical conditions in that it can affect somebody's performance or ability to
perform a task. And, again, you know, I believe that there should be a differentiation made
about the nature of the task.
Yes. Okay. So how long have you been treating Samantha?
THE DEPUTY PRESIDENT: Dr Balafas, did you hear that last question?---No, no, sorry, I
didn't.
No. That last question from Mr Kennedy was how long had you been treating Ms Lock?---I'm
sorry, one moment. I've just got someone at my door.
That's all right?---Okay. Sorry about that. What was that question again?
The question from Mr Kennedy was how long had you been treating Ms Lock?---I've treated
her back as far as 11 December 2013.6
[17] The Respondent submitted that fear and anxiety are not unexpected responses in
circumstances where an employee has been terminated, and are not sufficient to justify an
exercise of the discretion to extend time for making an application. It submitted that there is
no suggestion that the Applicant was incapacitated during the 21 day time period. Rather, the
Respondent says that the evidence indicates the Applicant was able to do a number of things
in the 21 day time period, despite her alleged medical condition, including:
writing a detailed letter of demand and complaint to the Respondent;
searching the Commission's website to find out information about filing an unfair
dismissal application;
booking flights online and travelling between Melbourne and Sydney twice over the
21 day period;
completing and signing the unfair dismissal application form by 9 March 2015, well
within the 21 day time limit; and
undertaking a full time master's degree of study.
[18] All of this is correct but does not take sufficient account of the evidence of Dr Balafas.
His evidence was that to properly understand the effect on the Applicant of her medical
condition in relation to the application it was necessary that ‘there should be a differentiation
made about the nature of the task’.7 As is apparent from the evidence extracted earlier Dr
Balafas’ medical opinion was that that:
‘. . . a differentiation needs to be made, you know, between lodging an application for
something that's probably quite stressful to you to performing daily duties. For her to
sit down and prepare a document, I don't know what the content of it was but I'm sure
6 Transcript (19 August 2015) PN 56-PN 67
7 Transcript (19 August 2015) PN 62
[2015] FWC 6036
9
it would contain things that would make her upset, you know, and it would've been a
stressful thing for her to, you know, undertaking a Court case. And I think that would
have been quite hard to do, and that would've made her quite anxious, and that anxiety
would have interfered with that in such a way that, you know, if she had been unwell
with, let's say she had cholera, you know, for two weeks, that would have impaired her
in preparing an application, and mental health is not unlike other medical conditions in
that it can affect somebody's performance or ability to perform a task . . .’8
[19] Although Dr Balafas did not consult with the Applicant at or about the time that the
application was lodged; he nonetheless expressed the opinion that he had ‘no doubt that this
(the exacerbation of the Applicant’s anxiety and depression resulting from the termination)
would have affected her ability to lodge the clain (sic) in the required time’.9 This assessment
is given by Dr Balafas in circumstances where he had been treating the Applicant since
December 2013.10
[20] I accept the Respondent’s submissions that the Applicant’s miscalculation of the
timeframe and other reasons proffered as an explanation, in and of themselves, do not provide
an acceptable explanation for the delay, however I am satisfied that, in the circumstances of
this case, that the evidence of Dr Balafas establishes that the Applicant’s medical condition is
likely to have contributed to her coping mechanisms and the capacity to meet deadlines, and
that this is likely to have affected her capacity to lodge the application within time, noting that
the application was in effect 58 minutes outside the time prescribed for lodgement. I also
accept the Applicant’s explanation that she attempted to lodge the application before midnight
(noting that the application had been signed by her some days earlier) but was unsuccessful as
she could not upload certain supporting documents through the Commission’s eFiling
system.11 I am therefore satisfied that there is an acceptable explanation for the whole of the
period of the delay. This is a factor which is to be weighed in favour of the Applicant.
Any action taken by the person to dispute the dismissal
[21] It is uncontroversial that the Applicant sent to the Respondent a letter of demand and
complaint dated 25 February 2015. In that letter the Applicant raises the very issues that she
agitates in this application. It is clear that the Applicant took steps before lodging the
application to dispute the dismissal with the Respondent. This is a matter that weighs in
favour of the Applicant.
Prejudice to the employer (including prejudice caused by the delay)
[22] The Respondent submitted that it has expended significant cost, time and effort in
defending the application. The Respondent said that it should not lightly be put to the
inconvenience and costs including time, resources and legal expertise required to defend a
general protections application which lacks merit and is out of time.
[23] For reasons I will come to, it cannot be said at this stage the application lacks merit,
however the prejudice that the Respondent has identified are the usual matters that any person
forced to defend an application will face. No factors such as the passage of time and its
8 Ibid
9 Exhibit A2; Transcript (19 August 2015) PN 17 – PN 22
10 Transcript (19 August 2015) PN 67
11 See Transcript PN 166 – PN 173
[2015] FWC 6036
10
impact on the recollections of potential witnesses or the unavailability of any particular
witnesses were identified as prejudicial factors. Moreover, the Respondent has been on notice
since 25 February 2015 that the Applicant disputes the ‘dismissal’ in the manner ultimately
set out in her application. I am satisfied there is no real prejudice to the Respondent. However
the absence of any prejudice is not a sufficient reason to allow an extension of time for filing
an application. I regard this factor as essentially neutral in the circumstances of this case.
Merits of the application
[24] During the course of the hearing, I expressed the following the view as to the merits of
this application:
THE DEPUTY PRESIDENT: I might just indicate this. It might assist the questions that
need to be asked about the merit. As I explained at the outset, it’s not the commission’s role
in general protections matters to determine the merits of an application and, indeed, there’s
authority for the proposition that particularly jurisdictional objections such as whether or not
the person was dismissed and whether or not the person was an employee, are matters that
ultimately need to be determined by the court or in an arbitration before the Commission. Not
at the stage where disputes are brought.
That said, I’m required to make an assessment about the merits of the claim as put. Can I say
this, that I’m not going to make any particular findings of fact but it seems to me that an
assessment of the facts – of the merits of the claim can be made simply on this basis. It seems
to me that there’s sufficient dispute about the natures and terms of the employment
relationship or the contractor arrangement to raise questions about whether a relationship was
properly characterized as one of employment.
So to that extent, Ms Lock, it seems to me, has at least an arguable case, and I put it no more
highly than that. But an arguable case that she was an employee, not an independent
contractor. Ultimately, Mr Kennedy, you will appreciate the courts look at the substance of
the relationship and not its form. There’s a lot of information about the form of the
relationship and it may be that when a proper assessment is made about the substance of the
relationship, that the substance will trump the form. That may be the case; it may not.
All I’m simply saying is that for present purposes, I think there’s sufficient doubt about that
issue to make good an arguable case that Ms Lock was an employee. Now, given that, Ms
Lock has identified that she exercised a particular workplace right or that she made complaints
or inquiries in relation to her payment. There’s an arguable point that can be made that that
was an exercise of a workplace right within the meaning of the Act. So that there’s no dispute
that the employment came to an end. Sorry. There’s no dispute that the relationship came to
an end.
The question is whether or not that amounted to a dismissal. That ultimately turns on the
question of whether or not Ms Lock was an employee. For present purposes I’m prepared to
accept there’s an arguable case that there was a dismissal and that, therefore, there’s an
arguable case that there was adverse action taken.
Given that there’s an arguable case of adverse action taken, Ms Lock is able to point to the
exercise of a right which arguably is the exercise of a workplace right within the meaning of
the Act, and she makes the allegation that the reason for the termination of the arrangement or
the employment was because of or for reasons that included the fact that she raised those
issues.
[2015] FWC 6036
11
That, put together, amounts to an arguable case that there has been a contravention of the
general protections provisions. I use the term, Mr Kennedy, for your benefit – I’m sorry – as
you would appreciate, arguable case in the legal sense. I’m not suggesting that it’s strongly
arguable but simply that it’s arguable. I’m not sure that you would seriously quarrel with
those propositions. So that for the purposes of my assessment of the merits, it seems to me
that there’s an arguable case.
I’m not going to make any further findings on that basis, and I don’t think that the level of
cross-examination, Ms Lock, with respect, is going to help me any further. Unless you have
some other questions of Mr Macdonald and I’m not going to stop you from asking questions,
but that’s basically where I’m likely to come down on that question. It’s probably the best
you’ll do and it’s a factor that would normally weigh in your favour.12
[25] As I have indicated above, my assessment of the merits of the application is that the
Applicant has an arguable case. Contrary to the submission of the Respondent, it cannot be
said therefore to be lacking merit. In the circumstances this factor weighs slightly in favour of
the Applicant.
Fairness as between the applicant and other persons in a like position
[26] The Respondent submitted that given the delay in lodging the application, there would
be no unfairness between the Applicant and other persons in a similar position if the
application were dismissed. It submitted that if an extension of time is granted, it would
constitute a degree of latitude contrary to the prevailing legislative and precedential standard.
It submitted that the Commission should not exercise its discretion to grant an extension of
time in situations such as this where the Applicant was the author of his or her own demise.
[27] For the reasons earlier given I do not regard the Applicant to have been the author of
her demise. This consideration is ultimately concerned with ensuring that consistent
application of principle is achieved in determining whether an extended period of time within
which to lodge an application should be allowed. But ultimately each case is to be assessed
having regard to the circumstances particular to it. That said, where a medical condition is
established by evidence as having, or likely to have had, an impact on the capacity of an
applicant to lodge an application within time, this has been accepted by the Commission as
providing a satisfactory explanation for the delay in other cases.13 The absence of medical
evidence indicating the condition contributed to delay and assertions as to the effect of the
medical condition, provided as an explanation for the delay, has resulted in that explanation
not being acceptable.14 Given the medical evidence, a decision in this case not to grant an
extension of time may well result in unfairness as between the Applicant and other persons in
a like position. In these circumstances, this consideration weighs in favour of the Applicant.
Conclusion
[28] The statutory time limitation for the exercise of a right to bring a general protections
dismissal related dispute application is essentially an expression of the Parliament’s intention
to balance, on the one hand, the right to bring an application about a disputed dismissal; and
on the other, the right of the former employer to continue with its business with some
12 Transcript (12 May 2015) PN 284 – PN 291
13 See for example Cornelius v Grant Chugg Plumbing Pty Ltd [2014] FWCA 2937, particularly at [12] – [13]
14 See for example Shaw v ANZ Group Limited [2014] FWC 3903, particularly at [23]
[2015] FWC 6036
12
certainty after it has made a decision and to know that after the elapsing of a particular period,
disputes about actions taken by it will no longer be agitated.
[29] The Parliament has struck that balance by assigning a 21-day time limit within which
to make an application, but recognising that there will be circumstances which will warrant
consideration by the Commission to allow an extension of time. Parliament has determined
that it will only be in ‘exceptional circumstances’ that the Commission will give consideration
to whether an extension of time should be granted. But the primary position is that
applications should be made within the 21-day period.
[30] When I consider each of the matters set out in s.366(2), in the context of the evidence
in this case and when I look at those circumstances collectively, I am satisfied that they
establish there are exceptional circumstances in this case which warrant the consideration of
the exercise of my discretion to extend the period within which the application has been
made. The Applicant’s capacity to make an application within time was affected by her
medical condition which impacted upon her coping skills and her ability to meet deadlines.
The Applicant also made efforts to lodge her application before the time had elapsed. She had
completed the application some days earlier. The Applicant disputed her dismissal with the
Respondent, the general protections claim is arguable and in the circumstances of this case
there might be unfairness to the Applicant compared to other persons in a like position if an
extension of time were not granted.
[31] As to whether I should now exercise my discretion, I regard the fact that the
application was lodged only 58 minutes outside of the time prescribed, together with the
nature of the subject matter that will ultimately require determination, as factors which weigh
in favour of the exercise of my discretion to extend time. No other factors which might weigh
against the exercise of my discretion have been identified. I therefore propose to allow a
further period within which this application may be made. That further period is extended to
12 March 2015.
[32] An order giving effect to this decision is separately issued in PR571498 and the
application will now be dealt with in a conference pursuant to s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
Ms S Lock in person
Mr A Kennedy for the Respondent
Hearing details:
2015.
Melbourne.
May 12.
August 19.
Printed by authority of the Commonwealth Government Printer
Price code A, PR571437
WORK COMMISSION SEAL OF AR WORK AHK
