Goldberger v Kenfrost (1987) Pty Ltd ATF The Kenfrost Trust [2016] FWC 1186 (23 February 2016) [2016] FWC 1186 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Sabrina Goldberger v Kenfrost (1987) Pty Ltd ATF The Kenforst Trust T/A Kenfrost (1987) Pty Ltd (C2015/4678) DEPUTY PRESIDENT KOVACIC MELBOURNE, 23 FEBRUARY 2016 Application to deal with contraventions involving dismissal - extension of time - exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 8 July 2015. [1] Ms Sabrina Goldberger (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 8 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Kenfrost (1987) Pty Ltd ATF The Kenfrost Trust T/A Kenfrost (1987) Pty Ltd (the Respondent) on 16 June 2015 in contravention of the general protections provisions of the Act. The Respondent contends in its Form F8A – Response to General Protections Application that Ms Goldberger’s employment ceased on 12 June 2015, noting that this was the date cited on the Employment Separation Certificate issued to Ms Goldberger on 18 June 2015. I note that Ms Goldberger at Item 3.1 of her application also refers to 12 June 2015 as the date she was dismissed, though at Item 1.1 of her application she cites 16 June 2015 as the date she was dismissed. [2] As the application had been lodged either one day or five days (depending on the termination date relied upon) outside the statutory timeframe for lodgement, the Commission issued Directions on 9 July 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. [3] The application was the subject of a telephone hearing on 13 August 2015. At the telephone hearing, Ms Goldberger appeared on her own behalf, while Mr John Richardson, a Director of the Respondent, and Mr Daryl Kruse appeared for the Respondent. [4] For the reasons set out below I have concluded that there were exceptional circumstances warranting an extension of time and extend the timeframe for lodging the application to 8 July 2015. Background [5] Ms Goldberger commenced employment with the Respondent on 6 November 2014. The Respondent is a residential construction company, with Ms Goldberger employed to perform mastic work. [6] According to Ms Goldberger she met with Mr Richardson on 1 June 2015 and informed him of her pregnancy and requested safer work in accordance with her doctor’s orders as her current job exposed her to chemicals and poisons. Mr Richardson told her at this meeting to look for alternative work. Ms Goldberger stated in her application that she attended a further meeting with the Respondent on 16 June 2015 where she was told that there was no work available for her due to her condition and that she had no future with the company, with her employment terminated at that meeting. [7] The Respondent disputed that Ms Goldberger was dismissed due to her pregnancy. In its Form F8A response, the Respondent contended that: at the meeting of 1 June 2015 Mr Richardson had offered to give Ms Goldberger some time to find another job and indicated that in the meantime she could do some cleaning of houses but that this offer was not taken up by Ms Goldberger; Mr Richardson had been aware since May 2015 that Ms Goldberger had applied for another job; at the meeting of 16 June 2015 Ms Goldberger’s mother asked whether her daughter could be given office duties, with the response being that the Respondent had a full complement of office staff; Ms Goldberger’s mother also asked at that meeting whether her daughter could be given light duties, with the response being that there were no light duties in the construction of houses and that mastic work was the least labour-intensive of the various functions involved in residential construction; and the Respondent further indicated that, if Ms Goldberger could not physically sustain doing mastic work, it would be remiss of it to expect her to undertake more labour intensive work which would in all probability expose her to the risk of exacerbating her existing ailments or developing further physical ailments. [8] As previously mentioned, Ms Goldberger’s application was received by the Commission on 8 July 2015. In her application, Ms Goldberger contends that she had been dismissed in contravention of section 351(1) of the Act which deals with discrimination. The Relevant Legislation [9] Section 366 of the Act provides: “366 Time for application 366(1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). 366(2 ) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position.” Whether to allow a further period for the application to be made [10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately. (a) The reason for the delay [11] Ms Goldberger submitted that the reason for the delay in lodging her application was due to incorrect advice she received from Legal Aid Queensland (Legal Aid) regarding the appropriate application form to use. More specifically, Ms Goldberger submitted that she contacted Legal Aid following her dismissal and that she was advised to file an application using a Form F8C - General Protections Application Not Involving Dismissal. At the telephone hearing, in response to a question from the Commission, Ms Goldberger stated that she spoke to Legal Aid the day after she had been dismissed and told them that she had been dismissed because of her pregnancy and that she had not spoken to Legal Aid since then. Ms Goldberger filed her initial general protections application using the Form F8C on 22 June 2015 1 . [12] Ms Goldberger further submitted that she was notified by the Commission on 8 July 2015 at a conference convened by the Commission to deal with her application that she had used the incorrect application form. [13] At the telephone hearing, the Respondent submitted that there was no evidence to support Ms Goldberger’s submission that she relied upon incorrect advice from Legal Aid. The Respondent further submitted that it found it difficult to accept that Legal Aid would provide incorrect advice as to the appropriate form to use and that Ms Goldberger must take some responsibility given that the F8C is clearly headed “General Protections Application Not Involving Dismissal”. [14] The Commission’s records indicate that Ms Goldberger’s initial general protections application was the subject of a conference on 8 July 2015, i.e. after the 21 day period had expired, with that file closed on the basis that it was an incorrect application. Those records also indicate that the application was withdrawn and that Ms Goldberger’s representative (her mother) had indicated that a s.365 application would be lodged by Ms Goldberger, with Ms Goldberger’s mother also aware that an extension of time would need to be granted by the Commission if the application was to proceed. It is not clear from the Commission’s records why Ms Goldberger’s initial incorrect application form was not picked up prior to the conference of 8 July 2015. [15] Ms Goldberger did not provide any material to substantiate her contention that Legal Aid Queensland had advised her to use the Form F8C. Having said that, it is noteworthy that Ms Goldberger’s application was lodged with the Commission on 22 June 2015, i.e. well inside the 21 day statutory timeframe, and that her subsequent general protections application was lodged electronically with the Commission on the same day (though not processed by the Commission until the following day) that she was advised her initial general protections application had been incorrectly made. [16] Finally, I note that Senior Deputy President O’Callaghan in Mr Gery Lane v Kangaroo Island Dive & Adventures Pty Ltd 2 granted an extension of time in circumstances where the applicant in that case had made an application within the statutory timeframe using the incorrect application form, with that error only detected when the matter was the subject of a conference convened by the Senior Deputy President. [17] On balance, I consider the reasons for the delay relied upon by Ms Goldberger point to the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [18] At the telephone hearing, Ms Goldberger pointed to the fact that she had spoken to Legal Aid Queensland following her dismissal but did not point to any other action she had taken to dispute her dismissal. [19] The Respondent’s submissions did not directly address this factor. [20] As mentioned above, Ms Goldberger lodged her initial general protections application with the Commission on 22 June 2015, with the Commission’s records indicating that Ms Goldberger’s initial application was forwarded to the Respondent by the Commission on the same day. In other words, Ms Goldberger did take action to dispute her dismissal shortly after her employment ceased. [21] This points to the existence of exceptional circumstances. (d) Prejudice to the employer (including prejudice caused by the delay) [22] At the telephone hearing, Ms Goldberger contended that the Respondent would not be prejudiced were an extension of time granted. [23] The Respondent submitted that it would be prejudiced were an extension of time granted, contending that responding to the application was taking up a lot of time through no fault of its own. [24] While I note the Respondent’s contention, I would observe that responding to a general protections application generally involves some time and effort on behalf of the respondent. However this of itself does not necessarily constitute prejudice. [25] I therefore consider this factor to be a neutral consideration. (e) The merits of the application [26] As is evident from the background to this matter outlined above, key aspects of the reasons for Ms Goldberger’s dismissal are disputed. In those circumstances, I am unable to form a considered view as to the merits of her application. As such, I consider this factor to be a neutral consideration. (f) Fairness as between the person and other persons in a like position [27] Ms Goldberger highlighted that another employee who was pregnant was given office work, yet when she requested such a move the Respondent indicated that it was not possible. [28] The Respondent replied that in the situation referred to by Ms Goldberger there happened to be a vacancy on its switchboard as result of someone having left, adding that this does not happen all the time and that the person returned to working in the field after the birth of her child. [29] As neither of these submissions go directly to this factor, I consider it to be a neutral consideration. Conclusion [30] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3 (Nulty) in the following way: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [31] Having considered all of the factors set out in s.366(2) and drawing on Nulty , I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). The key considerations in that regard were that Ms Goldberger filed her initial general protections application, albeit on the wrong form, well within the 21 day timeframe and acted promptly to lodge her s.365 application when advised by the Commission of the error concerning her initial general protections application. [32] The timeframe for lodging the application is extended to 8 July 2015. The application will now be listed for a conference aimed at resolving the dispute. Appearances : S. Goldberger on her own behalf. J.Richardson with D. Kruse for the Respondent. Hearing details: 2015. Canberra (telephone hearing): August 13. 1 C2015/3138 2 [2010] FWA 3939 3 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code C, PR577337>