FWAFB 5645
FAIR WORK AUSTRALIA
REASONS FOR DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT ACTON
Appeal - application under s 365 - extension of time for making - s 366 - exceptional circumstances - requirement for evidence.
 In exercising the power granted by s.366(2) of the Fair Work Act 2009 (the Act), Commissioner Bissett decided to extend the time in which Ms Kerr could make an application under s.365 of the Act against Ballarat Truck Centre Pty Ltd (BTC). The application alleged that BTC took adverse action against Ms Kerr in contravention of Part 3-1 of the Act with respect to ss.340, 351 and 352.
 The decision 1 and the order,2 extending time by some 28 days to 15 March 2011, were issued concurrently on 23 June 2011.
 A certificate was issued pursuant to s.369 of the Act on 27 June 2011, which certified that Fair Work Australia was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. This certificate is required in order that Ms Kerr can progress her s.365 application.
 BTC appealed the Commissioner’s decision and order on a number of grounds. The appeal was subject to proceedings before this Full Bench on 17 August 2011.
 Mr M Follett, counsel for BTC, submitted that the grounds of the appeal demonstrated that the Commissioner’s decision was affected by error and that, in light of this, the Full Bench should grant BTC permission to appeal and quash the order at first instance.
 Mr J McKenna, counsel for Ms Kerr, submitted that the appeal grounds were not of the sort provided for in House v R, 3 and that BTC’s submissions merely amounted to an assertion that the Commissioner should have made a different decision. On this basis it was submitted that Fair Work Australia (FWA) should not grant permission to appeal as there was no jurisdictional, or other, error in the Commissioner’s decision.
 Before turning to the grounds of the appeal, it is useful to set out the legislative provisions relevant to Ms Kerr’s application to extend the time in which she could lodge a s.365 application.
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; 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 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.”
Reason for the delay
 The first ground of appeal was that the Commissioner was in error by mischaracterising the reason for the delay. This was said to have occurred due to her having concluded that:
● Ms Kerr was incapable of lodging the application without assistance; and
● there was a representative error that contributed to the delay.
 Mr Follett submitted that by basing her decision on these factors, the Commissioner’s decision was made on irrelevant considerations.
 The Commissioner found at paragraph  of her decision that Ms Kerr was incapable of making and executing a decision with respect to her s.365 application, within the requisite time, without assistance. This conclusion, it would seem, was based on the Commissioner being persuaded by Ms Kerr’s evidence that she was suffering from anxiety and depression related illnesses, “the debilitating effect of [which] should not be underestimated”. Paragraph  of the decision suggests that this was a significant reason for her finding that there were exceptional circumstances.
 At the hearing before the Commissioner on 15 June 2011, Ms Kerr presented evidence from a number of sources that went to her medical condition. The evidence of Dr Brian Hassett (K4), Ms Kerr’s treating doctor, was that he was of the opinion that Ms Kerr was suffering from anxiety and depressive illness, and that this illness was a work related problem with the condition becoming more severe after the termination of her employment. Dr Hassett commented that he believed the condition was likely to be prolonged and required ongoing treatment and medication. The report did not deal with Ms Kerr’s ability to make an application to a tribunal.
 Ms Kerr also relied on the evidence of Ms K Armstrong, 4 Ms Kerr’s holistic counsellor, in the hearing before the Commissioner. The evidence of Ms Armstrong details her view of the severity of Ms Kerr’s situation at work, and the effect that the alleged workplace bullying and subsequent dismissal has had on her physical and mental wellbeing.
 The Commissioner had regard to this evidence about Ms Kerr’s medical condition and concluded at paragraph  of her decision that the “medical evidence and the evidence of her counsellor indicate that Ms Kerr was clearly unwell and not functioning at a level that enabled her to make rational decisions of her own accord” (emphasis added) and, ultimately at paragraph , that “Ms Kerr was incapable, within 60 days of the termination of her employment, of making and executing a decision with respect to this application without assistance”.
 Mr McKenna placed emphasis on the words “making and executing a decision” as used by Commissioner Bissett in her finding at paragraph . He submitted that the Commissioner’s finding was not that Ms Kerr was unable to decide to make a s.365 application without assistance, but rather that Ms Kerr was unable to “make and execute” that decision.
 In our view, such conclusions were not open to the Commissioner. As Mr Follett submitted, the evidence actually pointed to the opposite conclusions, that is, that Ms Kerr was quite capable of acting in her own capacity and could engage in formal dealings relating to her dismissal. For instance, after her employment was terminated, Ms Kerr was able to contact Job Watch and WorkSafe for assistance, write to Mr Smith who was the owner of BTC, meet with a solicitor to complete a WorkCover claim and provide a written summary of events. Further, she was assisted in January 2011 by Mr G. Frances of Saines Lucas Lawyers in respect of a decision on the making of an application under s.365 of the Act.
 Accordingly, the Commissioner erred in her findings as to the reason for Ms Kerr’s delay in making her application under s 365 of the Act.
 Mr Follett brought into question a further finding of the Commissioner, being that the conduct of Ms Kerr’s solicitor amounted to representative error and that this contributed to the delay in lodging the s.365 application. In respect of Ms Kerr’s dealings with Mr G Francis of Saines Lucas Lawyers, the Commissioner found at paragraph  that “[h]ad Mr Francis followed through with the application in December or January when Ms Kerr saw him the application would have been lodged within time”. The Commissioner considered that this amounted to a representative error and that it contributed to the delay in the filing of the application.
 Ms Kerr consulted Mr Francis, for the purposes of obtaining legal advice, on 21 December 2010, 22 December 2010 and 19 January 2011. On the issue of whether to commence a claim under s.365 of the Act against BTC, Mr Francis initially informed Ms Kerr that he had not had much involvement with general protections applications and would need to get back to her. At the meeting on 19 January 2011, Mr Francis advised Ms Kerr he would not be making a s.365 application on her behalf and that it was “best to let sleeping dogs lie” rather than be “stressed out”. The basis for this advice appears to be that the proceedings could have aggravated Ms Kerr’s health, and that the most appropriate course of action would be for her to proceed with her WorkCover claim. The evidence suggests that this advice was accepted and followed by Ms Kerr.
 Mr McKenna’s submission on this point was that given that, consistent with the Commissioner’s findings, Ms Kerr was incapable of making and executing a decision to lodge a s.365 application, Mr Francis’ conduct was that of representative error as he should have provided the required assistance.
 There was no evidence that Mr Francis was instructed to lodge an application on Ms Kerr’s behalf. Accordingly, it cannot be said that Mr Francis failed to follow through with instructions to lodge an application on Ms Kerr’s behalf. Further, as already outlined, it was an erroneous finding to conclude that Ms Kerr was incapable of making and executing a decision with respect to the application without assistance. She still had 27 days after the last meeting with Mr Francis within which she could have made a valid application in time. In these circumstances, we are of the view that the Commissioner erred in finding that representative error contributed to the reason for the delay in the making of Ms Kerr’s general protections application.
 A further ground of appeal was that the Commissioner erred in the manner in which she considered comparative fairness.
 A consideration to be taken into account by Fair Work Australia, when deciding whether it would be appropriate to extend the time for filing a late application, is the “fairness as between the person and other persons in a like position”. This is provided for in s.366(2)(e) of the Act.
 The Commissioner found at paragraph  (by accepting Ms Kerr’s submissions on this point) that “a person in a like position” to Ms Kerr, is “a person who has been subject to the same treatment as the Applicant but has not been forced to resign or been dismissed from employment.” As Ms Kerr’s employment had been terminated, she had a limit of 60 days within which she could bring a general protections application. This time limit would not have applied to Ms Kerr had her employment not been terminated. The Commissioner considered that this meant that Ms Kerr was disadvantaged compared to a person who had not been dismissed as no time limit would apply to the latter.
 Mr Follett challenged this proposition on the basis that the factors provided for in s.366(2) of the Act are the only relevant considerations to the question of whether or not Fair Work Australia should extend the time for the filing of a s.365 application. Accordingly, the expression “other persons in a like position” must be limited to people who would also be able to make such an application and the comparison must be with persons who have had their employment terminated.
 Mr McKenna submitted that s.366(2)(e) of the Act should not be so limited. It was argued that “other persons in a like position” included people who allege contraventions under Part 3-1 of the Act that are of a similar nature to those alleged by the applicant. In any case, Mr McKenna contended that leave should not be granted to BTC to press this ground of its appeal given that BTC never sought to raise an issue with Ms Kerr’s submissions in respect of s.366(2)(e) of the Act in the proceedings before Commissioner Bissett.
 It appears to be clear that s.366(2)(e) should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 application. A time limit for the lodgement of an application under Part 3-1 of the Act is only provided for with respect to s.365 applications. The Act imposes no time constraints on other applications available under Part 3-1. It follows that the consideration stipulated in s.366(2)(e) of the Act requires a comparison between people who are capable of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted.
 Accordingly, we consider that the Commissioner erred in the manner in which she dealt with the consideration of s.366(2)(e) of the Act.
 We do not consider it necessary to address the remaining grounds of the appeal.
Exercise of discretion
 The decision that there were exceptional circumstances was based on conclusions that were not open to the Commissioner. Accordingly, her decision was affected by error in the House v R sense. We grant permission to appeal and will determine ourselves whether to allow Ms Kerr a further period for the making of her application under s 365 of the Act.
 Ms Kerr sought advice from a number of different sources in relation to the legal avenues available to her after the termination of her employment with BTC. She commenced a WorkCover claim. She contacted JobWatch and was sent a general protections application form to complete. She sought advice from a solicitor about bringing a general protections application. As already indicated, the advice of the solicitor was that he would not be making such an application on her behalf and that it was “best to let sleeping dogs lie” rather than be “stressed out”. It would appear that this advice was accepted and followed. It is consistent evidence given by a witness called by Ms Kerr.
 Ms Armstrong’s statement makes the following observation about why Ms Kerr had not made a s.365 application:
“... she had not completed the paperwork simply because she remained extremely hesitant and uncertain about whether she should proceed with the Fair Work case against Ballarat Truck Centre. She was never in doubt that taking this next step was what was just and right but due to her fears, her anxiety, her agitation and her lack of emotional strength she was extremely unsure as to whether she could present as a solid and coherent witness. She also held little if any belief in her own ability to calmly and rationally recount what had been a deeply disturbing and incredibly emotive and traumatic experience...”
 Then Ms Armstrong explains how it is that Ms Kerr came to the view that she should commence her s.365 application:
“... I explained that the choice to proceed or not was hers alone to make but that she needed to consider carefully what it was she believed she was deserving of. It was my belief that if Melissa chose not to proceed with her case it was highly probable that she would never recover her self belief, and that her depressive anxious state would continue on, quite likely into the far distant future. We discussed these issues at length, we also spoke of the support that she would have from those closest to her not only in the days leading up to her appearance, but on the said day and in the days beyond and in conversing with her I also asked Melissa to imagine how she would feel if she discovered that someone else newly in the employ of Ballarat Truck Centre had been subjected to incidents such as she had been. On that same afternoon Melissa chose to complete the Fair Work Australia paperwork...”
 The evidence shows that Ms Kerr’s decision to make the application was based on the advice of her holistic counsellor, Ms Armstrong, who encouraged her to lodge an application on 9 March 2011, which was well out of time. On the evidence, it would appear that the reason for Ms Kerr’s decision to lodge her application, and in turn, the reason it was lodged some 28 days out of time, was that she had changed her mind. For the reasons we have earlier given we do not accept that representative error was a reason for Ms Kerr’s delay in making her application. With respect to Ms Kerr’s lack of funds, we note that it is not out of the ordinary course, unusual, special or uncommon for a person who has been dismissed to suffer a lack of funds.
 We turn then to the other matters set out in s 366(2) that we are required to take into account in deciding whether there are exceptional circumstances such as would enliven our discretion whether to extend time.
 The action taken by Ms Kerr to dispute the dismissal was to seek legal advice, inform BTC that she was going to make a bullying complaint and to lodge a WorkCover claim. She elected not to make an application under s 365 of the Act within the prescribed time limit.
 Beyond having to deal with the application as it would have needed to had there been no delay, no prejudice to BTC has been demonstrated.
 If the matters referred to in her application under s.365 of the Act were to be made out, it would seem that Ms Kerr’s application could succeed. However, BTC denied Ms Kerr’s allegations. We cannot conclude her application is without merit on the material before us.
 We have dealt with the issue of fairness as between Ms Kerr and other persons in a like position earlier in these reasons. No issue of fairness as between Ms Kerr and others in a like position was made out in this matter.
 We are not satisfied there are exceptional circumstances warranting us allowing Ms Kerr a further period for the making of her application under s365 of the Act. None of the factors in s.366(2)(a) to (e) of the Act, either individually or cumulatively, is sufficient to satisfy us there are such exceptional circumstances.
 We therefore uphold the appeal. The Commissioner’s order at first instance is quashed with the consequence that Ms Kerr’s application under s 365 is struck out and the certificate issued under s 369 of the Act is set aside.
 We add that while we have struck out Ms Kerr’s application under s.365 of the Act and BTC denies the allegations raised in the material accompanying that application, if the allegations are able to be made out then Ms Kerr may have other avenues of redress.
SENIOR DEPUTY PRESIDENT
M. Follett of counsel for Ballarat Truck Centre Pty Ltd.
J. McKenna of counsel for Ms Kerr.
1 Melissa Kerr v Ballarat Truck Centre Pty Ltd,  FWA 3894.
2 Melissa Kerr v Ballarat Truck Centre Pty Ltd, PR510734.
3 (1936) 55 CLR 499.
4 Exhibit K5.
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<Price code C, PR513733>