Note: An appeal pursuant to s.604 (C2012/3762) was lodged against this decision - refer to Full Bench decision dated 20 July 2012 [[2012] FWAFB 5601] for result of appeal.
[2012] FWA 3141 |
|
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Ms Raylene Reeve
v
Ramsay Health Care Australia Limited
(C2012/2840)
COMMISSIONER CLOGHAN |
PERTH, 23 APRIL 2012 |
Application to deal with an unlawful termination dispute.
[1] This Decision concerns an application by Ms Raylene Reeve (“the Applicant”) to Fair Work Australia (FWA) alleging that she was unlawfully terminated from her employment with Ramsay Health Care Australia Pty Ltd (“the Employer”).
[2] The application was made on 23 February 2012 and the alleged unlawful termination of employment occurred on 24 March 2011.
[3] The application is made pursuant to s.773 of the Fair Work Act 2009 (“the FW Act”).
RELEVANT STATUTORY FRAMEWORK
[4] Section 773 of the FW Act falls within Part 6-4 of the FW Act. Part 6-4 deals with what is described as additional provisions relating to termination of employment.
[5] The aims of Division 2 of Part 6-4 of the FW Act, in which s.773 is contained, are to give effect to Australia’s international treaty obligations relating to termination of employment.
[6] In the introduction to Part 6-4 of the FW Act, it relevantly provides:
“Division 2 makes it unlawful for an employer to terminate an employee’s employment for certain reasons...” (s.769 of the FW Act).
[7] Section 772 of the FW Act provides that:
(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
(c) non-membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during maternity leave or other parental leave;
(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) ...
(3) ...
(4) ...
(my emphasis)
[8] Section 773 of the FW Act is relevantly as follows:
If:
(a) an employer has terminated an employee’s employment; and
(b) ...
the employee, or the industrial association, may apply to FWA for FWA to deal with the dispute.
[9] Section 774 of the FW Act concerns the time limits when an application can be made and provides:
(1) An application under section 773 must be made:
(a) within 60 days after the employment was terminated; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; 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. (my emphasis)
PROCEEDINGS
[10] The Applicant alleges that the Employer unlawfully terminated her employment in contravention of s.772(1)(e), that is for the reason of:
“the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.”
[11] In view of the fact that the application was not made within 60 days after the employment was terminated, I issued procedural directions inviting the Applicant to provide a written submission to enable the Tribunal to be satisfied that there are exceptional circumstances to allow a further period beyond the 60 days. I also invited the Employer to make submissions and gave the Applicant the opportunity, should she wish, to comment on the Employer’s submission.
[12] Submissions were completed on 10 April 2012.
[13] In the procedural directions, I advised both parties that should I determine that there are no exceptional circumstances to allow a further period, the application would be dismissed. In the alternative, I advised the parties that should I determine there are exceptional circumstances to allow the application to be made on 23 February 2012, I would proceed to hold a conference pursuant to s.776 of the FW Act.
SUMMARY OF APPLICANT’S CASE
[14] The Applicant’s submission can be divided into three parts. The first part is described as a “Statement of Facts” and consists of 10 pages of key dates and a description of what happened on that particular date. Of particular importance are the following:
● 12 January 2011: |
Applicant commenced employment. |
● 22 March 2011: |
Applicant emails Mr J MacWatt regarding 4 hour Rule data. |
● 24 March 2011: |
Applicant’s employment ceased. |
● 27 (sic) March 2011: |
Applicant emails Mr Kempton Cowan concerning injustice of termination of employment. |
● 28 March 2011: |
Applicant receives response from Mr Cowan stating that termination of employment for performance and communication concerns. |
● 29 March 2011: |
Applicant attended FWA. |
● 30 March 2011: |
Applicant attends “Industrial Relations”. |
● 31 March 2011: |
Applicant speaks to friend. |
● 5 & 12 April 2011: |
Applicant contacts Professor Daube. |
● 24 April 2011: |
Applicant’s grandmother passes away. |
● 30 April 2011: |
Applicant’s grandmother’s funeral. |
● 2 May 2011: |
Applicant telephones Minister for Health’s Office. |
● 16 May 2011: |
Applicant telephones and emails Minister for Health’s Office. |
● 60 days standard timeline expires. | |
● 30 May 2011: |
Applicant telephones the Health and Disability Services Complaints Office. |
● 1 June 2011: |
Applicant has telephone conversation with Ms Donaldson, Health and Disability Services Complaints Office. |
● 6 June 2011: |
Applicant has telephone conversation with Ms Donaldson and Mr Peter Sparkes, Office of Auditor General. |
● 26 June 2011: |
Applicant reads “whistleblower” article in Sunday Times concerning 4 hour Rule. |
● 4 July 2011: |
Applicant engages lawyer. |
● 8 July 2011: |
Applicant makes general protections application. |
● 21 July 2011: |
Hearing before Williams C concerning an extension of time to file an application pursuant to s.365 of the FW Act (C2011/5048). |
● 18 August 2011: |
Decision of Williams C that he is not satisfied there are exceptional circumstances to allow a further period to make the application ([2011] FWA 5349). |
● 10 October 2011: |
Full Bench of FWA dismiss Applicant’s appeal against decision of Williams C (C2011/5735) PR515678). |
● 31 October 2011: |
Application to Federal Magistrates Court of Australia (FCMA) pursuant to Rule 45.07 of the Rules of the Federal Magistrate Court Rules (FMC Rules). Application states that it is a “claim under the Fair Work Act 2009 alleging unlawful termination of employment” (paragraph 24 [2012] FMCA 120). |
● 14 February 2012 |
Application to FMCA summarily dismissed because the precondition in both the FW Act and Rule 45.07 of the FMC Rules has not been met. The precondition is that FWA issue a certificate pursuant to s.777 of the FW Act ([2012] FMCA 120). |
[15] I note that the Statement of Facts submitted as part of the written submission seeking an extension of time is, with the exception of the last entry, identical to pages 12-21 of the Applicant’s material in her application on 23 February 2012.
[16] For completeness, the first part also contains a further five (5) pages, two (2) of which are references to the good character of the Applicant.
[17] The second part of the Applicant’s written submission can be described as bundles of data. The first bundle runs to 2,040 pages and the second bundle, 151 pages.
[18] The third part of the Applicant’s written submission is an affidavit concerning a receipt for documents submitted to the Corruption and Crime Commission and Ms Reeve’s interaction with a current employee of the Employer.
[19] The third part of the Applicant’s submission also contains what appear to be two media articles relating to the “four hour rule” and the following decisions: 83 ALR 714 Kimberley Clark Ltd v Commissioner of Patents & Anor (Jenkinson J); 27 NSWLR Leonard v Smith & Anor pp 5-36 and the decision of Lindsay FM in [2012] FMCA 120 to which I have already referred to in paragraph [14].
SUMMARY OF EMPLOYER’S CASE
[20] The Employer submits:
● the Applicant’s reasons for the delay in filing the application are insufficient and lack exceptional circumstances to justify a substantial extension of time; and
● the Applicant took some limited action to dispute her dismissal but took no active or substantive action until she engaged a lawyer on 4 July 2011 and lodged a general protections application on 8 July 2011. At the time of filing her application, it was 106 days after Ms Reeve’s termination of employment and 46 days outside the standard timeline of 60 days. This action, its appeal and subsequent action in the FMCA is beyond the standard timeline of 60 days and, in any event, insufficient to justify an extension of time; and
● the Employer has the prejudice of defending four (4) separate proceedings relating to the same set of circumstances. This is extreme and unusual prejudice in addition to the “natural tendency” for witnesses’ memory to fade; and
● the Applicant is precluded from bringing the application to pursuant to s.723 and s.725 of the FW Act; and
● the Applicant does not have a valid ground for making the application pursuant to paragraph 772(1)(e) of the FW Act; and
● the Applicant was dismissed for poor performance.
CONSIDERATION
Background
[21] Ms Reeve was employed, pursuant to a written contract, on 12 January 2011.
[22] The contract of employment states that, subject to successful completion of a three (3) month probationary period, Ms Reeve’s employment would be from 12 January 2011 to 11 October 2011. Further continuation of the Applicant’s contract was dependent upon continued satisfactory performance.
[23] Ms Reeve reported to Mr James MacWatt, the Employer’s Clinical Redesign Manager. Between 12 January 2011 and the date Ms Reeve’s employment was terminated, Mr MacWatt was responsible for monitoring her performance and conduct.
[24] Following approximately five (5) discussions with Ms Reeve regarding her work performance and conduct, Mr MacWatt met, on 14 March 2011, with Ms Young, Manager, Human Resources where it was decided that the Applicant’s employment was likely to be terminated.
[25] On 16 March 2011, Mr MacWatt and Ms Young met with Ms Kane, Coordinator Employee Relations to discuss Ms Reeve’s employment. At this meeting, it was determined that Ms Reeve’s employment would be terminated for performance reasons.
[26] On 24 March 2011, Mr MacWatt and Ms Kane met with Ms Reeve and her employment was terminated. Ms Reeve was given a letter of termination of employment which provided for four (4) weeks payment of salary in lieu of notice. While the reason for termination of Ms Reeve’s employment could have been more explicit, the letter states that the decision was “made following extensive consideration and review of your performance as discussed with you on numerous occasions”. 1
[27] Following her termination of employment on 24 March 2011, Ms Reeve emailed the Chief Executive Officer (CEO) of Joondalup Health Campus (JHC), Mr Kempton Cowan, concerning the “injustice of [her] termination and [to] tell him of my report”. The report was contained within an email from Ms Reeve to Mr MacWatt dated 22 March 2011. On the same day, Ms Reeve received a response from Mr Cowan confirming that her employment was terminated due to performance and communication concerns.
Email on 22 March 2011 from Ms Reeve to Mr MacWatt and others
[28] For reasons which will become apparent later in this Decision, it is necessary to set out the content of an email from Ms Reeve to Mr MacWatt (and two other employees) on 22 March 2011.
[29] Ms Reeve introduces her email with the words:
“Whilst I am still getting familiar with JHC data in ED and the wards, and working on the 4 hr Rule in ED, I am starting to understand the need and strategies required to decrease the patient’s time in ED.”
[30] It is understandable that the Applicant, after approximately 10 weeks in the position, was still familiarising herself with hospital data.
[31] The Applicant materially continues:
“The rate of entering times by EDMO were fantastic
...
Only 2 672 (3%) had missing times.
The rate of entering times by consultants paints a different picture, and presents the data with major holes in it, as we then need to ask the questions.
Are these un-entered times longer or shorter than the average expected times for these consults?
How reliable then is our data in accurately reporting the average time to review, and hence this contribution to the 4 hr rule?
I am new to JHC and the 4 hr rule, but there appears to be a real need to increase rate of recording/entering by consultants, and hence ensure that JHC’s data can be deemed reliable.
Please see below for some rates of recording/entering data.”
[32] The Applicant’s email sets out, among other data, that the JHC had 98 674 consultations between 1 January 2012 and 28 February 2011. Of the 98 674 consultations, 28 549 are “those groups we are particularly interested [in]”. The Applicant then proceeds to set out the consultants’ rates of recording and entering of times.
[33] Ms Reeve’s email concludes with the words, “food for thought”.
[34] Mr MacWatt acknowledges the email on the same day (22 March 2011) and comments on his endeavours to improve rates of recording. Mr MacWatt also acknowledges the importance of data integrity, the need to address this issue and the fact that these figures need to be “published and performance managed”. He concludes with the words, “we will continue our efforts”.
[35] Mr MacWatt’s email to Ms Reeve is copied to the same two persons who the Applicant had copied into her email.
[36] In her email to Mr Cowan on 28 March 2011, Ms Reeve excludes any introductory comments regarding her growing familiarisation with the JHC data but sets out the data contained in her email to Mr MacWatt on 22 March 2011.
[37] Ms Reeve acknowledges to Mr Cowan that she did not “have much time to investigate these negatives [in the data]” as her employment had ceased. Notwithstanding this, she was able to advise Mr Cowan that, at least for January (year not specified) there appeared to be a possible computing error.
[38] Ms Reeve concludes that:
“One of the major reasons for this [her] unfair dismissal might be to prevent me from reporting this to you and the ramifications it posed on staff in the Emergency Department at JHC”. (my emphasis)
Extension of Time
[39] It is not in dispute that Ms Reeve’s employment ceased on 24 March 2011.
[40] It is self evident that as Ms Reeve’s application was received by FWA on 23 February 2012, she did not meet the standard timeline of 60 days as required by paragraph 774(1)(a) of the FW Act.
[41] Consequently, it is necessary to determine whether there are exceptional circumstances taking into account the criteria in subsection 774(2) of the FW Act to allow the Applicant to file her application on 23 February 2012.
[42] As a reminder, the filing of the application was 336 days after the Applicant’s employment ceased and 276 days after the standard timeline for lodging an application pursuant to s.773 of the FW Act.
[43] Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394 adopted the analysis concerning exceptional circumstances endorsed by Commissioner Whelan in Parker v Department of Human Services [2009] FWA 1638. In summary, the analysis is described as:
“...exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief” 2;
and
“...a circumstance which is such as to form an exception, which is out of the ordinary, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 3
[44] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. The nature of exceptional cannot be judged by the Applicant alone, or the provisions of paragraph 774(1)(b) would be self defining. While each individual person’s circumstances are unique, the Tribunal is able to judge whether, following a qualitative examination of the person’s circumstance, exceptional circumstances existed.
[45] I now turn to the criteria in subsection 774(2) of the FW Act which must be taken into account to determine whether there were exceptional circumstances.
Paragraph 774(2)(a) - What was the reason for the delay in lodging the application?
[46] The criteria for the Tribunal to be satisfied that there are exceptional circumstances to allow a further period to lodge an application in s.774 of the FW Act are identical to the provisions relating to a general protections application in subsection 366(2) of the FW Act.
[47] Despite the fact that Ms Reeve previously made a general protections application and similar extension of time consideration being given to that application, the Applicant failed to set out the reasons for the delay. The ordinary meaning of “reasons” is the cause, justification or explanation for something that has happened. In her written submission, Ms Reeve has provided a list of dates and what happened on that date. For example, in the first 60 days, Ms Reeve’s grandmother passes away which the Tribunal is understanding of and sympathetic to regarding any delay. However, two days after the funeral of her grandmother, the Applicant telephoned and subsequently emails the Western Australian Minister for Health’s Office. Further, in the initial 60 days after her dismissal, the Applicant is in contact with a number of persons and a brief description of that contact is given.
[48] While Ms Reeve has not given any narrative or explanation as to the reasons for the delay, if the list of dates and actions are intended to convey some justification, I am, with the exception of her grandmother passing away, not satisfied that these actions, of themselves, are exceptional circumstances. The setting out of a list of enquiries made of friends, government departments and an academic, is not a satisfactory explanation as to why Ms Reeve has not met the statutory time of filing the application within 60 days.
[49] The Form F9, on which the Applicant makes application, seeks essentially the following information: the name of the employee, the name of the employer, the nature of the industry, the date of termination of employment, the reasons given by the employer for terminating the employee and what is the alleged contravention by the Employer of s.772(1) of the FW Act. With the exception of the last matter, all the remaining information was available to the Applicant on the date of her termination of employment on 24 March 2011. In view of the Applicant’s reference to “apparent whistleblowing”, suggested involvement of the “Commissioner of Health” and the prevention of “reporting this [data]” in an email to Mr Cowan on 28 March 2011, I apprehend that the Applicant was in a position to reasonably respond to the alleged contravention of s.772(1) of the FW Act within a short time after her termination of employment; certainly within 60 days. Finally, and in addition, the Applicant advises that on 29 March 2011, “I went to Fair Work Australia”. While this statement is not expanded upon, it infers she was pursuing her statutory rights in this Tribunal five days after her dismissal.
[50] Having considered the lack of specific and written reasons for the delay and the list of dates and description of action occurring on those days, I am not satisfied that Ms Reeve has provided material in which the Tribunal can reach the conclusion that these were part of an environment which, with the other criteria in subsection 774(2), lead to exceptional circumstances.
Paragraph 774(2)(b) - What action was taken by Ms Reeve to dispute her dismissal?
[51] It is not contested that Ms Reeve disputed her dismissal with Mr Cowan on 28 March 2011. Mr Cowan responded to Ms Reeve on the same day (28 March 2011). The Applicant states that she went to FWA on 29 March 2011 and “Industrial Relations” (presumably the Western Australian Industrial Relations Commission [WAIRC]) on 30 March 2011. Certainly, the communication with Mr Cowan was disputing her termination of employment and the contact with FWA and the WAIRC implies that she was contesting her dismissal. However, contact sequentially with Professor Daube, the Minister for Health’s Office, Ms Donaldson, Health and Disability Services Complaints Office and Mr Sparkes, Auditor General’s Office infers that the Applicant was disputing her dismissal, but it appears to me, her real purpose was to reveal, as Ms Reeve alleges, “data manipulation at JHC” 4.
[52] In conclusion, it is uncontested that Ms Reeve disputed her termination of employment on 28 March 2011 and visited the appropriate industrial agencies on 29 and 30 March 2011. From 30 March 2011 to 4 July 2011, when she engaged a lawyer, her actions relating to her termination of employment were with persons and agencies who may or may not be interested in her allegations of data manipulation, but they were in no position to assist her in disputing her termination of employment.
[53] Following the engagement of a lawyer, Ms Reeve made a general protections application to FWA on 8 July 2011 which was 106 days after her dismissal from employment. Following the hearing, Williams C found that, with the exception of the death of the Applicant’s grandmother and a four day trial in the Family Court, there were no acceptable reasons for the remaining balance of time to demonstrate exceptional circumstances and allow an extension of time to file the general protections application.
[54] The Applicant appealed the Decision of Williams C. Permission to appeal, for reasons given orally, was not granted by the Full Bench on 12 October 2011.
[55] Subsequently, the Applicant made application on 31 October 2011 to the Federal Magistrates Court of Australia (FMCA) alleging unlawful termination of employment. The application is dismissed for jurisdictional reasons by Lindsay FM on 14 February 2012.
[56] The primary timeframe, in my view, when the Tribunal is to consider “exceptional circumstances”, is the first 60 days after the employee was dismissed. In short, the question for determination is what occurred in the first 60 days that prevented the employee from making her application to FWA. There is no doubt that Ms Reeve disputed her dismissal four days after the date of termination. I can also conclude that by going to FWA and the WAIRC, she was also objecting to her dismissal. However, those actions ceased six days after her termination of employment. I am not satisfied that for the remaining period beyond the first six days, the Applicant took any meaningful action to dispute her dismissal. I emphasise again that, allegations by her of data manipulation to various persons and agencies, is different to disputing her dismissal.
[57] The fact that Ms Reeve engaged a lawyer 102 days after her dismissal and then took some substantive action to dispute her dismissal does not demonstrate that such action is satisfactory for the purposes of paragraph 774(2)(b) of the FW Act. Such action after the 60 days leads to the question of why the Applicant could not have taken such action as engaging a lawyer and making the general protections application within the standard timeline of 60 days. From Ms Reeve’s written submission, I have not been given any reasons for the delay with the exception of the death of her grandmother.
Paragraph 774(2)(c) - Is there prejudice to the Employer including prejudice caused by the delay?
[58] Ms Reeve has not addressed this criterion in her written submission.
[59] The Employer submits that it has been prejudiced by the delay.
[60] The mere fact that the time limit of 60 days has been exceeded, by itself, does not lead to a prejudice to the Employer. However, in this application, the elapsed time is significant - 336 days after the Applicant’s employment ceased. It is likely, but not certain, that the recollection of events, by those persons involved in the application will have diminished. Further, the perspective of those people involved in events may have changed as a result of what may, or may not, have happened in the intervening period.
[61] As this application has been preceded by three separate proceedings involving the same circumstances, it could be argued that the recollection of persons involved has not diminished to the same extent as if this was the first cause of action. I am inclined to agree, however, there is still the general question of prejudice to consider, including delay in filing this particular application. Although the prejudice, harm or injustice is not correlated to the period beyond 60 days, I do not think it an abuse of reasoning to state that the shorter the time after 60 days, the less the likelihood of prejudice and the greater the time period after 60 days, the more likely that prejudice occurs. For these reasons, I find that there is a general prejudice to the Employer in the sense of a lack of certainty and the particular prejudice caused by a delay of making an application 276 days after the standard timeline. I have considered this prejudice, together with the other criterion, in exercising my discretion against an extension of time.
Paragraph 774(2)(d) - Merits of the application.
[62] I propose to structure this part of my Decision by setting out the circumstances and considering those circumstances against the provisions of the FW Act.
[63] Ms Reeve, in her email of 28 March 2011 to Mr Cowan, states that her termination of employment was for “apparent whistle blowing”. In the same email, Ms Reeve contends that her dismissal “might be to prevent me from reporting this [data] to you”.
[64] A reasonable interpretation of the email is simply that Ms Reeve feels her employment was terminated to prevent the data getting to the Hospital’s CEO. Consequently, Ms Reeve sets out the same data and in the same terms, as she did to her immediate direct report, Mr MacWatt.
[65] In her application, Ms Reeve contends that the Employer unlawfully terminated her employment for:
“Paragraph 772(1)(e)
The filing of a complaint, or the participation in proceedings against an employer involving alleged violation of laws, or regulations or recourse to competent administrative authorities”.
[66] For the condition contained in paragraph 772(1)(e) of the FW Act to come into existence, it is necessary for Ms Reeve to have filed a complaint against the Employer (or participated in proceedings) involving alleged violation of laws (or regulations) or taking herself to a competent administrative authority.
[67] The predecessors to s.772(1)(e) of the FW Act were s.170CK(2)(e) and later s.659(2)(e) of the Workplace Relations Act 1996 (“WR Act”).
[68] Section 170CK(2)(e) of the WR Act provided:
“Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”.
[69] In the matter of an application for Writs of Mandamus and Certiorari or Constitutional relief against Lewin [2004] FCAFC 161 (He), the Full Court stated at paragraph 44:
“Section 170CK(2)(e) is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone”. (my emphasis)
[70] Further, the Full Court in Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 (Zhang) affirmed He’s construction of s.170CK(2)(e) and stated at paragraphs 25-26 that a complaint to the employer would not be caught by s.170CK(2)(e):
“Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal that is consistent with reading the ‘filing of a complaint’ with the words that follow ‘or the participating in proceedings’, namely ‘against an employer involving alleged violation of laws or regulations’.
The use of the word ‘against’ in s.170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer’s conduct would not be filing a complaint ‘against’ that employer...”
[71] Finally, the employer must also be aware of the complaint or the participation in proceedings or the recourse to an administrative authority (see Zhang at paragraph 31).
[72] In Eggmolesse v Burnett Heads Investment Pty Ltd [2010] FMCA 80 (Eggmolesse), Jarrett FM considered the authorities of Zhang and He in the context of interpreting s.659(2)(e) of the WR Act (the successor clause to s.170CK(2)(e)).
[73] Jarrett FM noted that the legislation (i.e. s.170CK(2)(e)) was remedial legislation and must therefore be given a purposive interpretation. Jarrett FM relevantly concluded, at paragraph 21:
“Although Lander J in Zhang was dealing with a predecessor to the current section I consider, with respect, that I should follow his Honour’s approach. I accept that to engage s.659(2)(e) in respect of a ‘complaint’, the compliant must be filed with a body, probably in the nature of a court or tribunal...”
[74] I intend to follow the same principles adopted relating to section 170CK(2) of the WR Act and its successor 659(2)(e) when interpreting the meaning of s.772(1)(e) of the FW Act.
[75] From the written submission provided to the Tribunal, at the time of her dismissal Ms Reeve had not filed a complaint against the Employer; the only complaint was to the CEO of the Hospital and that was after her termination of employment. Ms Reeve has not claimed that her complaint was in violation of any laws (or regulation). Finally, I have not been advised that she had engaged with any competent administrative authority at the time of her dismissal. In short, none of the conditions required in paragraph 772(1)(e) of the FW Act were present for the Applicant to rely upon as reasons for her unlawful termination of employment.
[76] In addition, I make the following observations: the decision to terminate Ms Reeve’s employment was on 16 March 2012 - six days before her employment was terminated and for reasons associated with her performance.
[77] The requirements of s.772(1)(e) of the FW Act have not been satisfied and this, together with the significant delay, weigh heavily against an extension of time being granted.
Paragraph 774(2)(e) - Fairness as between others persons in a like position.
[78] A direct comparison of fairness with other persons in a like position is not directly relevant. In such circumstances, the Tribunal needs to be concerned with a comparison with all those who seek an extension when the standard timeline has not been met. In a general sense, Ms Reeve has sought a significant extension of time to file the application out of time. In such circumstances, it is not unreasonable to expect Ms Reeve to set out compelling circumstances which would “force” the Tribunal to agree that she could not have lodged the application within 60 days. As I have already indicated, with the exception of her grandmother’s passing, I cannot accept that the activities she undertook during the remainder of the first 60 days prevented her from filing the application within the standard time period.
[79] I now turn to the provision in Part 6-1 of the FW Act which deal with “multiple actions”.
[80] Section 723 of the FW Act:
“A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[81] It is not disputed that Ms Reeve made a general protections application to FWA. That application was dismissed by Williams C (C2011/5048). Ms Reeve appealed that decision. The appeal was subsequently dismissed by the Full Bench (C2011/5735).
[82] In simple uncomplicated language, s.723 of the FW Act stops a person from making an application for unlawful termination of employment if the person is able to make a general protections court application.
[83] Ms Reeve has made a general protections application to FWA, albeit unsuccessfully. Further, when unsuccessful in her application to FWA, she went to the FMCA. Her application to the Court was dismissed because the Court did not have the jurisdiction to deal with the matter as Ms Reeve did not have a certificate issued pursuant to s.777 of the FW Act. While circuitous, the reason why Ms Reeve did not have a certificate pursuant to s.777 of the FW Act, is simply because, she made a general protections applications rather than an unlawful termination application and her general protections application was dismissed by Williams C.
[84] Notwithstanding this circuitous route, there is no suggestion that Ms Reeve was not entitled to and she did in fact make a general protections application to FWA.
[85] In conclusion, Ms Reeve was entitled and did make a general protection application to FWA. Consequently, Ms Reeve is unable to make an unlawful termination application.
[86] It is reasonable for Ms Reeve to understand why she is prohibited from making an unlawful termination application if she is able to make a general protections court application. The prohibition is contained within the FW Act itself.
[87] An explanatory memorandum to a parliamentary bill is intended to explain and assist in the understanding of the bill’s content. In the Explanatory Memorandum of the Fair Work Bill 2008, it explains under the heading of “Overview” that Part 6-1 - [preventing] Multiple Actions in paragraph 2695:
“This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases.”
[88] Paragraph 2702 relates to what is now s.723 of the FW Act and states by way of explanation of unlawful termination applications:
“This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982) [1994] ATS 4.” (my emphasis)
[89] Simply put, the common intention of sections 723 and 725 of the FW Act is to prohibit persons from “double dipping” arising out of the same circumstances. It is indisputable that Ms Reeve made a general protection application and it failed because Ms Reeve did not satisfy Commissioner Williams that exceptional circumstances existed to warrant the timeline for filing the application be extended beyond the 60 days standard timeline. Ms Reeve appealed Commissioner Williams’ decision and Ms Reeve’s appeal was also dismissed.
[90] In summary, the nature of the material provided in the application, and as part of the written submissions, contain the implicit conclusions that the Applicant:
● was not terminated by the Employer in breach of paragraph 772(1)(e) of the FW Act; and
● is prohibited from making this application as it is “double dipping” and contrary to the provisions of s.723 of the FW Act.
CONCLUSION
[91] Having considered all the matters set out above, I am not satisfied that there are exceptional circumstances, taking into account the criteria in subsection 774(2) of the FW Act, to allow a period of beyond the standard timeline of 60 days (in this case 276 days) to file her application.
[92] Accordingly, the application will be dismissed and an order issued conjointly with this decision.
COMMISSIONER
Final written submissions:
The Applicant: 19 March 2012 and 10 April 2012.
The Respondent: 30 March 2012.
1 Affidavit of Ms Fonda (JM-3)
2 Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256
3 R v Kelly (Edward) [2000] 1 QB 198 at 208
4 Pages 4 and 5 of Applicant’s affidavit
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