C2015/257, Transcript of Proceedings [2015] FWCTrans 243 (22 April 2015)

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PN1

THE VICE PRESIDENT: Thank you, I’ll take the appearances.

PN2

MR J MERRELL: May it please the Commission, my surname is MERRELL, M-e-r-r-e-l-l, initials JW. I'm instructed by Australian Workplace Lawyers and I seek permission to appear on behalf of the appellant. May it please the Commission.

PN3

THE VICE PRESIDENT: Thank you, Mr Merrell.

PN4

MR R HASSALL: Your Honours, HASSALL, H-a-s-s-a-l-l, initial R, and seeking leave to represent the respondent employer.

PN5

THE VICE PRESIDENT: Thank you. Permission to appear in these matters is granted. This is listed as a permission to appeal matter. In those circumstances your focus should be on permission to appeal. The Bench has had the opportunity of reading the submissions and the file so we now invite brief oral submissions from Mr Merrell.

PN6

MR MERRELL: Thank you, your Honour. The appeal is against the decision of the Commission not to allow the appellant a further period of time to make an application for an unfair dismissal remedy. The error that we say was made by the Commission in refusing to exercise its discretion under the Act was that the Commission determined that the applicant had resigned at least by 22 August 2014. There are some very brief facts which I wish to address the Commission on. The Commission will see from the material that in June 2014 the applicant went off work with the respondent due to ill health and claimed workers compensation.

PN7

The claim was for a psychological injury arising from work related stress. In June 2014 the respondent advised WorkCover Queensland, the body to whom the appellant had made her application for compensation, that the appellant had been told her employment would be terminated on 10 June 2014. On 30 June 2014 in response to what the respondent told WorkCover Queensland the appellant lodged an unfair dismissal application, which was the first unfair dismissal application lodged by the appellant. The respondent's response to the first unfair dismissal application was that the appellant had not been dismissed.

PN8

On 18 August 2014 the appellant's WorkCover claim was accepted and on 20 August 2014 the respondent discontinued the first unfair dismissal application for reasons that included that the respondent's response to the first unfair dismissal application was that the appellant's employment had not been terminated. The appellant's evidence before Sams DP was that she did not resign from her employment at or about that time, namely 20 August 2014, and that at or about that time, 20 August 2014, because she was on an approved workers compensation claim she believed that she would return to work once her doctor had given her a clearance to return to work.

PN9

The respondent in its case before Sams DP submitted that on 22 August 2014 the appellant had directly contacted the respondent by telephone and communicated that she was resigning effective from her last of work and requested a separation certificate. The respondent's case before Sams DP was that the respondent issued a certificate in the mail on or about that date, 22 August 2014. The appellant's evidence before Sams DP was that she had not received a separation certificate at that time. As your Honours will see, this application by my client was made or was determined by the Commission on the papers.

PN10

Coming now to the unfair dismissal application at the centre of these proceedings, on 13 August 2014(sic) the appellant opened a letter she had received from Suncorp which was the organisation providing her superannuation, and that letter stated that her employment with the respondent had ceased. Two days after she had read that letter, on 15 October 2014, the appellant contacted the respondent's representative who told the appellant that she had ceased employment and a separation certificate had been sent to her.

PN11

On the same day, 15 October 2014 the appellant contacted the respondent who sent the appellant by email a copy of the separation certificate dated 22 August 2014. On 16 October 2014 the appellant emailed the applicant stating that she had not resigned and was still employed by the respondent, and then by email dated 16 October 2014 the respondent stated that the appellant was not an employee. Can I take your Honours to page 39 of the appeal book, and if I can invite your Honours just - that's the email that I last mentioned in my submissions, the email from the respondent dated 16 October 2014 to the appellant and if I can invite your Honours to read that email.

PN12

THE VICE PRESIDENT: Yes.

PN13

MR MERRELL: In response to that email the appellant made her second unfair dismissal application on 23 October 2014 which is the subject of this appeal. If I can now come to the error in the Commission's decision. Your Honours will see from the decision of Sams DP that the reason at the heart of the Commission refusing to exercise its discretion in favour of the appellant was that the Commission found that the appellant had resigned at least on 22 August 2014.

PN14

In that regard if I can take your Honours to page 9 of the appeal book to paragraph 15 where in the last sentence his Honour concludes that the applicant's conduct was consistent with her having resigned her position at least by 22 August 2014. And when regard is had to a decision where the Commission marshalls up the matters to be considered as to whether there are exceptional circumstances under section 394(3) of the Act, it's the fact that the Commission found that the appellant had resigned at least by that date that was the reason why the Commission found there were no exceptional circumstances to extend the applicant's second unfair dismissal application to extend time for that unfair dismissal application.

PN15

The real reason why the Commission found that the appellant had resigned on or about 22 August, or at least by 22 August 2014, was because the applicant had not made any contact with the respondent between the date she discontinued her first unfair dismissal application, 20 August 2014, and the date that she received the letter from Suncorp that she read on or about 13 October 2014. Can I take your Honours to page 8 of the appeal book and if I can invite your Honours to read paragraphs 11 and 12.

PN16

THE VICE PRESIDENT: Yes, Mr Merrell.

PN17

MR MERRELL: Thank you, your Honour. The explanation - or Sams DP finds that the applicant's explanation to be implausible. The explanation there is the delay in filing her second application for unfair dismissal on 23 October 2014 on the basis that she was dismissed at least from 22 August or that her employment came to an end at least from 22 August 2014 or at the earliest, 13 June 2014. In preferring the respondent's version of events, namely that there was an oral resignation, the Commission found that the appellant's conduct, that is not having any contact with the respondent from 20 August 2014 to 13 October 2014 was consistent with an employee who understood she was no longer employed by the respondent.

PN18

Where we say the error in the Commission's decision is as follows. The Commission never took into account in finding that the appellant's conduct was consistent with someone who considered herself no longer employed by the respondent, the Commission never took into account the fact that the appellant was on workers compensation and on her evidence to Sams DP, her evidence was that she would return to work once she was given a clearance by her doctor. So there's no doubt that the appellant was away from work, but it wasn't a non‑work related injury.

PN19

It was a work related injury that the respondent knew of because it was insured by WorkCover Queensland. The appellant's submissions on page 41 of the appeal book at paragraph 18 make the point the respondent was contacted by WorkCover Queensland and was informed that the applicant's WorkCover claim had been accepted. So the respondent knew that the appellant was on an absence due to workers compensation. The appellant's evidence was that she would contact the employer once she had a clearance from her doctor to return to work.

PN20

Those circumstances are entirely unremarkable. That is, that there is no immediate contact by an injured worker about returning to work until the doctor gives her the clearance. In the Commission coming to its conclusions at paragraphs 11 and 12, that is preferring the respondent's version of events to my client's version of events, the Commissioner did not take that fact into account and that's where we say the error is. That error, that failure to take into account that relevant consideration, had the effect of the Commission making an error in coming to a conclusion that the appellant resigned.

PN21

The error is compounded by the fact that there was no direct evidence - and I understand that this was a matter decided on the papers. But there was no direct evidence in the form of a statement from Ms Fran Jell, J-e-l-l, who was the person the respondent said that the appellant had given her oral resignation to. There was no statement from Ms Fran Jell about how that resignation was communicated, that is what was said. There's a bland statement made in the submissions by the respondent at page 42 of the appeal book at paragraph 20 where the respondent submits:

PN22

On 22 August 2014 the applicant contacted the respondent by telephone and communicated that she was resigning her employment effective from her last date of work and requested a separation certificate be issued by the respondent. The respondent accepted the applicant's resignation and issued the applicant a separation certificate by mail.

PN23

There was no direct statement from Ms Jell about what was communicated and, as I pointed out to your Honours before, the email from the respondent to the appellant on 16 October 2014, the one at page 39 of the appeal book that I invited your Honours to read before, nowhere does that mention anything about an oral resignation on 22 October 2014. In conclusion we say that - my submission is that there is an arguable case of an appellable error being demonstrated in this case. It is clearly arguable for the reasons I've advanced that the respondent did not resign.

PN24

The Commission concluded that the appellant's conduct was consistent with someone who resigned simply because she didn't contact the respondent between late August 2013 and the middle of October 2013. However that's unremarkable because the appellant was in receipt of workers compensation, and her statement before Sams DP was that she would return to work once she was given a clearance. That conclusion reached by Sams DP that my client resigned at least from 22 August 2014 manifests an injustice to the appellant because it's that finding that she resigned that was at the heart of the reason not to extend the appellant's application to extend time.

PN25

For that reason, for that injustice to my client, it's in the public interest to grant permission to appeal in that in my submission an appellable error has been demonstrated. Finally, your Honours, for the reasons I've advanced the appeal involves a significant error of fact. The error of fact that we say occurred was the finding by Sams DP that she resigned. That's a significant error of fact because it's that finding that is at the heart of the reasons why Sams DP, in marshalling up the issues under section 394 to determine whether there are exceptional circumstances to grant time, it was that reason why Sams DP found that there was no exceptional circumstances. They're my submissions. Can I assist your Honours any further?

PN26

THE VICE PRESIDENT: No, thank you.

PN27

Mr Hassall?

PN28

MR HASSALL: If I might just respond to the issues raised that I consider are relevant to the respondent, your Honours. Taking that last point in relation to this decision about the resignation being at the heart of the Deputy President's decision, I noted that at paragraph 19 of his decision he indicates the basis of having considered all matters under 394(3) of the Act that there are no exceptional circumstances which warrant granting an extension. He goes on to say, "Even if I am wrong about this finding made under" that section of the Act, "I am further satisfied that the applicant resigned her employment on 22 August" - sorry, "13 June or 22 August".

PN29

So we say that it's not that decision which is necessarily at the heart of his decision. At the heart of his decision was his consideration of the matters under 394(3) of the Act. But if I can turn to the matters that were raised. In relation to the fact that there was no direct evidence from Ms Jell, as your Honours are aware this was a matter that proceeded on the papers. The respondent's submission was in relation to a conversation that Ms Jell had with the applicant on 22 August.

PN30

But we say in that regard, or the respondent says, that the separation certificate which is at page 54 of the appeal book does speak for itself in that Ms Jell completed that certificate on that date, 22 August. It does indicate a resignation or a date that the employment ceased up in section 1 as 13 June 2014. I'm not making a submission that resignation occurred on 13 June. My understanding and instructions are that that was the last day of employment and the separation certificate speaks for itself in the fact that the employment ended officially on 22 August 2014.

PN31

THE VICE PRESIDENT: Sorry, did you say that document was completed by the employee? It was completed by the employer wasn't it?

PN32

MR HASSALL: No, the employee Ms Jell. I'm sorry, if
I - - -

PN33

THE VICE PRESIDENT: Yes, you said it was the employee but it's actually the employer completes that.

PN34

MR HASSALL: Yes.

PN35

THE VICE PRESIDENT: So what does that prove? I mean that's the employer's version. It doesn't mean it's agreed to by the employee, does it?

PN36

MR HASSALL: No, I don't put it any higher than that, your Honour. I just say that the document speaks for itself in that it was a document completed on that day by Ms Jell and it is consistent with the submission that was made on behalf of the respondent before Sams DP, and Sams DP found on the balance of probabilities, taking into account the matters that he considered in paragraph 10. And I might turn to that because my friend indicated that he never took into account the fact that the worker was on workers compensation. But at page 7 of the appeal book about halfway through paragraph 10 the Deputy President did note that:

PN37

The respondent was advised that the applicant's WorkCover claim had been accepted on 19 August 2014

PN38

So I think it is a matter that he took into account and in paragraph 11 he goes on to say that on balance he finds the applicant's explanation to be implausible. The only other point I wish to make is that even taking into account the email exchange on 16 October 2013 between the respondent and the applicant, the applicant did not lodge proceedings until 23 October 2014 and I'm not aware that any explanation has been provided in relation to that delay. Unless there are any other specific questions I have no further submissions.

PN39

THE VICE PRESIDENT: Just one thing I want to understand. The appellant says that the respondent indicated in respect of the first section 394 that at the relevant time, 30 June, she had not been dismissed. Do you accept that that's what you - - -

PN40

MR HASSALL: I accept that position was conveyed and my understanding is that position was relied upon at the conciliation conference and, without going into the conciliation conference, the discussions that occurred, there was a proposal put forward about the way that matter could resolve at that time. But my understanding is the position taken at that time is that employment had not been terminated at that date. There had been no formal position taken by the employer.

PN41

THE VICE PRESIDENT: Was this matter conducted on the papers by agreement?

PN42

MR MERRELL: Excuse me, your Honour, I'll just - - -

PN43

MR HASSALL: I think my friend might be able to help me.

PN44

MR MERRELL: My instructions, your Honour, was that there was a proposal the matter be dealt with on the papers and there was no objection taken by my client to the matter being dealt with that way. They're my instructions, your Honour.

PN45

MR HASSALL: That's my understanding, your Honour, as well.

PN46

THE VICE PRESIDENT: Mr Hassall, section 397 of the legislation deals with matters involving contested facts and saying the FWC must conduct a conference or hold a hearing when there matters or factual matters in dispute. How do you say that was addressed in this matter?

PN47

MR HASSALL: Well, I don’t think I can make a submission about that apart from noting that - I note my friend indicated that the applicant says that she indicated she did not have a conversation on 22 September 2014.

PN48

THE VICE PRESIDENT: Shouldn't that matter have been tested in terms of a hearing? That seems to be fundamental to the case, doesn't it?

PN49

MR HASSALL: I think it is a matter that is - that
well - - -

PN50

THE VICE PRESIDENT: Well why isn't that then a basis for us to grant not just permission to appeal but actually deal with the appeal proper and have this matter dealt with properly?

PN51

MR HASSALL: I think the only submission I could make in that regard, your Honour, is that the applicant in the letter that was sent to Drake SDP at page 39 does not make any reference or does not seek to assert that there was no conversation on 22 August. I realise it does indicate that - I'm sorry, it's not page 39. It is page - - -

PN52

MR MERRELL: 23.

PN53

MR HASSALL: 23, thank you.

PN54

It does deal with her response by way of email on 13th and 14th October in relation to disputing resignation at that point in time. But there's no specific mention of the 22 August date. So I accept what my friend is putting in terms of a dispute, but on the facts there is not one position put and a contrary position put.

PN55

THE VICE PRESIDENT: Mr Merrell, you've heard what I've said on behalf of the Bench for the moment. But given the way section 397 operates.

PN56

MR MERRELL: Yes.

PN57

THE VICE PRESIDENT: And given the live contests in relation to these facts, it strikes us that this may well be a matter that we should move from permission to appeal and actually grant the appeal, because there doesn't appear to have been compliance strictly with the legislation. Do you have a view in relation to that?

PN58

MR MERRELL: Yes, well your Honour is correct in terms of the application of section 397 to this particular case. I should say that the appellant was unrepresented at the time that she made her submissions to what ultimately finished up before Sams SDP. So when I said before there was no objection made to the matter being heard on the papers, it was in the - and I can't take it any higher than that it was in the context of the appellant not being represented at that particular point in time.

PN59

But in terms of what your Honour says, that there is clearly a dispute about whether the applicant resigned effective 22 October, Sams DP finds against my client on the basis of other conduct or a lack of conduct in contacting the employer between August and October 2013, but there was a dispute about whether she resigned. And in fact I'm grateful to my learned friend, in the appeal book at paragraph 24 in the second-last paragraph, whilst there's no date mentioned in the last sentence in the second‑last paragraph, in appeal book page 24 the appellant stated that she:

PN60

did not resign and as previously stated I thought I'd return to my employment after my WorkCover has finalised.

PN61

Which at this point was still ongoing. So there was a dispute about whether there had been a resignation. It was found against my client in a way that we say was an error and on a strict application of section 397 there should really be - there should have been a contested hearing about that. Can I assist your Honours any further?

PN62

THE VICE PRESIDENT: Is there anything further you wish to say, Mr Hassall, about 397?

PN63

MR HASSALL: No, I think you've touched on everything I need to address. Thank you, your Honour.

PN64

THE VICE PRESIDENT: Thank you. Yes, we have had regard to the submissions. Permission to appeal in this matter is granted. The appeal will be upheld. The decision of Sams DP is quashed. The matter will be remitted to another member to hear the extension of time application.

PN65

MR MERRELL: Thank you, your Honours.

PN66

THE VICE PRESIDENT: The Commission is adjourned.

ADJOURNED INDEFINITELY [12.42 PM]

Fair Work Commission Transcripts

C2015/257, Transcript of Proceedings [2015] FWCTrans 243 (22 April 2015)