McGrath v HW Tours Pty Ltd [2016] FWC 1440 (7 March 2016) [2016] FWC 1440 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Isobella McGrath v HW Tours Pty Ltd T/A Horseback Winery Tours (C2015/6621) DEPUTY PRESIDENT KOVACIC CANBERRA, 7 MARCH 2016 Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed. [1] Ms Isobella McGrath (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 15 November 2015 alleging that on 7 October 2015 she had been forced to resign from her employment with HW Tours Pty Ltd T/A Horseback Winery Tours (HWT – the Respondent) in contravention of the general protections provisions in the Act. [2] As Ms McGrath’s application had been lodged eighteen days outside the statutory timeframe for lodgement, the Commission issued Directions on 16 December 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 extension of time issue was the subject of a telephone hearing on 28 January 2016. At the telephone hearing, Ms McGrath appeared on her own behalf, while Ms Carol Smith appeared for HWT. As noted above, Ms McGrath contends that she was forced to resign on 7 October 2015. On this issue, I would point out that in deciding whether or not there are exceptional circumstances warranting the Commission granting Ms McGrath a further period within which to make her general protections application, it is not necessary for the Commission to determine whether or not she was forced to resign. [4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed. Background [5] HWT is a small tourist business. Ms McGrath commenced employment with HWT on 5 June 2015 as a Tour Guide. [6] Ms McGrath was injured in an after work accident on 28 September 2015. By way of background, Ms McGrath had asked whether she could ride a HWT horse with some of her colleagues after she had finished work. Unfortunately, Ms McGrath was kicked in the right hip by the horse she borrowed, sustaining a number of injuries. [7] On 4 October 2015 Ms McGrath emailed HWT inquiring as to whether her injury was covered by workers’ compensation. [8] Ms McGrath attended a medical appointment on 7 October 2015 with the resulting diagnosis being that she would require one to three months before she could return to full-time duties. Upon returning from that appointment, Ms McGrath met with HWT to advise it of her prognosis. Ms McGrath contended that during that conversation she asked whether there were any available alternative duties which she could undertake while recovering. HWT advised Ms McGrath that there were no alternative duties. While aspects of the conversation are disputed, it is not disputed that the issue of resignation was discussed at that meeting. [9] On 8 October 2015 Ms McGrath emailed HW to stating as follows: “I wished to express my sincerest disappointment at the fact I’m leaving. I understood when you expressed you cannot hold a position for me while I recover and along with your recommendation feel as if my only option is to resign my position at horseback. … Thank you for your support during this time, and taking my letter of notice. I have not included a date on this resignation as are not sure if you wanted to make it from the date of my injury or today.” [10] Following the cessation of her employment, Ms McGrath returned to Canberra to live with her parents. She subsequently sought legal advice regarding her circumstances and lodged her workers’ compensation claim on 2 November 2015 and on an unspecified date initiated an alleged underpayments claim with the Fair Work Ombudsman (FWO). The underpayments claim was the subject of an unsuccessful FWO mediation on 18 November 2015. [11] Mr Grant Griffiths, a Director of HWT, wrote to Ms McGrath after she had lodged her workers’ compensation claim. The letter, which is undated, stated: “We acknowledge receipt of your intention to make a claim against Work Cover dated 2 November, 2015. As part of our processes, our office has reviewed the information you have provided in the Claim Form, and I am now formally advising you that there are a number of inaccuracies and possibly fraudulent, deceptive and misleading statements contained in your submission. … Critically, it is our responsibility to submit your claim to Work Cover within 10 working days of formal receipt. Lodging your claim, we will be obligated to point these facts out to Work Cover and make supporting Statutory Declarations. It is our view that these contradictory facts will result in a formal Work Cover investigation. Together with existing witness’ statements and corresponding evidence to prove that you were not engaged by Horseback to perform formal duties at the time of your alleged accident, the situation may well become extremely difficult for you. Our office and our staff are in no doubt that such an investigation will prove the incident occurred outside of normal working hours. It is my duty as Chairman of HW Tours Pty Ltd (t/a Horseback Winery Tours) to inform you that you should seriously reconsider withdrawing what is plainly a fraudulent Work Cover claim. If you do not formally withdraw the Claim we will have no alternative but to commence the process and await the outcome.” [12] Ms McGrath’s workers’ compensation claim was subsequently accepted by WorkCover. [13] As noted above, Ms McGrath’s application was received by the Commission on 15 November 2015, eighteen days outside the statutory timeframe specified in s.366(1)(a) of the Act. In her application Ms McGrath contends that HWT contravened ss.340 and 343 of the Act which respectively deal with protection concerning the exercise or non-exercise of a workplace right and coercion. The Relevant Legislation [14] 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 [15] 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 [16] Ms McGrath cited several reasons for the delay in lodging her application. These included: the ongoing rehabilitation and therapy programs she underwent as a result of her injury; the shock and distress she endured as a result of the way in which her employment ended and being unemployed; that she had not been informed by HWT that her resignation had been accepted; that she had to move back to Canberra from Victoria; and her efforts aimed at resolving the underpayments issue amicably. [17] HWT submitted that the reasons relied upon by Ms McGrath do not appear relevant. More particularly, HWT submitted that: it was clear that Ms McGrath resigned on 8 October 2015 or earlier; Ms McGrath received legal advice on 30 October 2015; a resignation does not need to be accepted in writing; Ms McGrath’s rehabilitation did not preclude her from lodging a general protections application within the statutory timeframe, particularly as Ms McGrath was able to initiate her workers’ compensation and FWO claims during this period; no medical evidence had been provided by Ms McGrath to substantiate her claim of shock and distress; and as to reviewing relevant legislation to establish her rights, ignorance of the timeframe does not constitute an exceptional circumstance. [18] From the material before the Commission it appears that Ms McGrath’s priority in the period after her employment ceased was pursuing her workers’ compensation and underpayments claims. Further, I note that Ms McGrath did not obtain legal advice until 30 October 2015, which was after the 21 day period had expired. While I accept that moving from Victoria to Canberra would have caused some disruption, it of itself or even when combined with the other reasons relied upon by Ms McGrath does not explain why Ms McGrath could not have filed her general protections application within the 21 day period. [19] The above analysis does not point to the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [20] Ms McGrath contended that on her return to Canberra she commenced investigating her rights as an employee, initially focussing on her workers’ compensation claim and then in respect of her pay and conditions and the cessation of her employment. However, Ms McGrath submitted that she did not feel confident approaching HWT regarding the cessation of her employment because of what she described as its subsequent bullying behaviour. Ms McGrath also stated that both she and HWT participated in the unsuccessful FWO mediation on 18 November 2015. [21] HWT submitted that Ms McGrath took no steps to dispute the cessation of her employment other than lodge her general protections application. [22] There is no material before the Commission indicating that Ms McGrath took any steps to dispute the cessation of her employment prior to lodging her general protections application. This does not point to the existence of exceptional circumstances. (c) Prejudice to the employer (including prejudice caused by the delay) [23] Ms McGrath submitted that HWT would not be prejudiced were an extension of time granted. [24] HWT submitted that Ms McGrath did not submit her general protections application until after the unsuccessful FWO mediation on 18 November 2015, contending that it should not be put to the expense of defending another application. [25] While I note HWT’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration. (d) The merits of the application [26] Ms McGrath contended that she was forced to resign at the meeting of 7 October 2015 and that at no stage during that discussion did she state that her parents wanted her to move back to Canberra while she recovered from her injuries. Beyond that, Ms McGrath relied upon the information contained in her application. [27] HWT submitted that Ms McGrath’s application has little merit, adding that it was clear that Ms McGrath had resigned to enable her to complete her rehabilitation at home in Canberra. HWT further submitted that: Ms McGrath had not been dismissed but resigned voluntarily, vehemently denying that Ms McGrath was forced to resign; at the time of Ms McGrath’s injury, HWT did not consider that she was eligible for workers’ compensation as the injury had occurred outside of Ms McGrath’s hours of work; Ms McGrath’s resignation did not hinge on her workers’ compensation claim; as to the allegation of coercion, HWT did not threaten to take action against Ms McGrath for making a workers’ compensation claim with Mr Griffiths’ letter (see above) merely highlighting what were considered to be inaccuracies in Ms McGrath’s workers’ compensation application; and Ms McGrath’s workers’ compensation application was granted. [28] While key aspects of the discussion of 7 October 2015 are disputed, I note that the issues regarding Ms McGrath’s workers compensation claim and the alleged underpayments all arose after 8 October 2015 when Ms McGrath formally tendered her resignation. This is supported by Ms McGrath’s application which states that “… I submitted a claim through Work Cover Victoria on 2 nd November. Upon realising that I was in fact entitled to submit a claim through Work Cover, I made immediate moves to ascertain if I may also be able to recoup lost income due to underpayment of hours, absence of penalty rates and poor working conditions (that I suspected contravened the Fair Work Act ).” 1 In those circumstances, it is difficult to see how the cessation of her employment contravened ss.340 and 343 of the Act. [29] As such, the merits of Ms McGrath’s application do not appear to be particularly strong. This does not point to the existence of exceptional circumstances. (e) Fairness as between the person and other persons in a like position [30] Neither party made any submissions in respect of this factor. I therefore consider this factor to be a neutral consideration. Conclusion [31] 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 2 (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.” [32] Having considered all of the factors set out in s.366(2) and drawing on Nulty , I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). [33] Accordingly, Ms McGrath’s application will be dismissed. An order to that effect will be issued with this decision. Appearances : I. McGrath on her own behalf. C. Smith for the Respondent. Hearing details: 2016. Melbourne and Canberra (telephone hearing): January 28. 1 Form F8 – General Protections Application Involving Dismissal at Item 1.4 2 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code C, PR577704>