C2016/2819, Transcript of Proceedings [2016] FWCTrans 159 (20 April 2016)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1053303

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SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SAUNDERS

C2016/2819

s.604 - Appeal of decisions

Poke-Kingston v Spotless Group Limited

(C2016/2819)

Sydney

11.35 AM, TUESDAY, 12 APRIL 2016

PN1

SENIOR DEPUTY PRESIDENT HAMBERGER: Ms Poke-Kingston, this is Senior Deputy President Hamberger, here. Can you hear me?

PN2

MS N POKE-KINGSTON: Yes, I can.

PN3

SENIOR DEPUTY PRESIDENT HAMBERGER: So you're representing yourself. And who do we have from the respondent?

PN4

MR J DOUGLAS: Your Honour, John Douglas, representing Spotless.

PN5

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. So Ms Poke-Kingston, I just want to emphasise that we are solely dealing with Drake SDP's decision about your application for an extension of time, and we're dealing with whether you should be given permission to appeal her decision. Now I'll just make the point that if you look at her decision it seems to me that the key finding she made really was that the reason so on paragraph 7 of her decision she says that the reasons you provided for the delay in lodging your unfair dismissal application were, in her words, "misunderstanding and ignorance". She says, "whilst sympathetic to these circumstances I was not persuaded that Ms Poke-Kingston's difficulties were out of the ordinary, unusual or uncommon". I guess the question really is, and this is about, really, I think you said that my understanding is you said that you had been under the misunderstanding that in calculating the 21 days you were allowed for lodging your unfair dismissal application, that you don't count weekends.

PN6

MS POKE-KINGSTON: Yes.

PN7

SENIOR DEPUTY PRESIDENT HAMBERGER: That it was just focussed on working days. Now is there anything wrong with what Senior Deputy President Drake said in those two paragraphs in her decision?

PN8

MS POKE-KINGSTON: Well, I think, like, I am, myself, like, I am no lawyer or anything like that. They the way that I felt like, seen it was that I don't know really how to explain it when I rang, like, Fair Work and I explained to them, like, the situation and whatnot, I was under the impression after I spoke to them that the 21 days because the person I spoke to, he said, "Monday at the latest, if you have it lodged by, you'll be fine." So being the reason it was rejected, that's why I couldn't understand, considering I went and got information from, like, Fair Work, to see when it had to be lodged by yes.

PN9

SENIOR DEPUTY PRESIDENT HAMBERGER: All right.

PN10

MS POKE-KINGSTON: So that's, I don't know, really the only reason and when I tried to lodge it by by phone and they told me I couldn't do that either, that's, yes, when I ended up lodging it via that way. And then when he said he can't see why, you know the reason why it should, you know, should be like, it shouldn't I should just accept her reasons for it not going through, I I just fail to see how, like, the way that I was terminated was right. At the end of the day, that's basically what it comes down to.

PN11

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but just sorry to be difficult but madam, we're not dealing here with the we're not really dealing with the merits of your unfair dismissal application.

PN12

MS POKE-KINGSTON: Yes.

PN13

SENIOR DEPUTY PRESIDENT HAMBERGER: We're solely dealing with this technical issue, if you like, of you understand there's a requirement to lodge unfair dismissal applications within 21 working days.

PN14

MS POKE-KINGSTON: Yes.

PN15

SENIOR DEPUTY PRESIDENT HAMBERGER: We can grant an extension but only in exceptional circumstances and so the question that Drake SDP was dealing with was whether there were exceptional circumstances to grant you an extension, and there are a number of factors we have to take into account but one of the very important ones is why what was the explanation for the fact that it was delayed. You said, as I understand it, "In response to the reason for delaying lodgement the honest truth is I didn't count Saturdays and Sundays to be included in the 21 days, without the weekends so I thought I lodged it in 17 days. I haven't had experience in doing this before. It was a pure misunderstanding on my part, of the 21 days rule", and - - -

PN16

MS POKE-KINGSTON: Yes, which I totally well, sorry - - -

PN17

SENIOR DEPUTY PRESIDENT HAMBERGER: No, go on.

PN18

MS POKE-KINGSTON: Which I totally, like, agree with but it's like, I I actually rang to get information from Fair Work so I I suppose I take I take full blame because I am ignorant to the fact that I didn't know what was sort of going on and I'm ignorant to the fact that I took someone's word on the phone, like, to say, well, hey, you've got the 21st, at the latest, to lodge it, because I tried to ring and lodge it over the phone, which they said they couldn't, and then it has been till January when I actually got our laptop, and Christmas and that so - - -

PN19

DEPUTY PRESIDENT HAMILTON: Ms Poke-Kingston, I'm sorry to interrupt you, where did you say this - - -

PN20

MS POKE-KINGSTON: Yes.

PN21

DEPUTY PRESIDENT HAMILTON: Did you tell any of this to Drake SDP? You didn't, did you?

PN22

MS POKE-KINGSTON: No. No, because when I see, this is like ignorance on my part, as well, it the more I looked into it - - -

PN23

DEPUTY PRESIDENT HAMILTON: No, no, just stop. Stop, please. Please, Ms Poke-Kingston - - -

PN24

MS POKE-KINGSTON: Yes.

PN25

DEPUTY PRESIDENT HAMILTON: So nowhere in your written submission do you mention any of this, yes or no? That's correct, isn't it?

PN26

MS POKE-KINGSTON: No. No, that's correct.

PN27

DEPUTY PRESIDENT HAMILTON: So this is new evidence you're trying to lead, is it?

PN28

MS POKE-KINGSTON: Well, yes, that would be correct.

PN29

DEPUTY PRESIDENT HAMILTON: All right. Well, you could have put this in your written submission, could you not? There's no reason why you couldn't have said this in your written submission?

PN30

MS POKE-KINGSTON: Well, to be honest, again, I didn't put it in my in the written submission to start off with, no. I honestly didn't have a clue what I was doing. I thought that what I'd put forth was enough and then the more that I, like, looked into it, the the more I realised that there was more information that I should have added in the first place.

PN31

DEPUTY PRESIDENT HAMILTON: All right, thank you, Ms Poke-Kingston. Thank you.

PN32

SENIOR DEPUTY PRESIDENT HAMBERGER: So I do understand that you've sent some material, I think you sent some material last night, was it, or yesterday, to us?

PN33

MS POKE-KINGSTON: Yes.

PN34

SENIOR DEPUTY PRESIDENT HAMBERGER: But you understand that we wouldn't normally accept additional material at this point. The only especially if the material was something that you could have provided at you know, when you were meant to, if I could put it that way. I mean, is there any reason why you couldn't have provided this information to Drake SDP at the time you made your or at the time the extension of time was being dealt with?

PN35

MS POKE-KINGSTON: That's that's nothing, I only just decided Sunday afternoon that I would actually sit down and put it into words to see, like what to say, I suppose, exactly the way that I seen it.

PN36

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. Is there anything else?

PN37

MS POKE-KINGSTON: No.

PN38

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. So Mr Douglas, did you want to say anything?

PN39

MR DOUGLAS: Your Honour, I'll be very brief. The Commission has already identified that the only issue for consideration here is the reason for the delay. Her Honour Drake SDP in her decision identified all the other factors as being neutral or of no relevance. In terms of the explanation as best we can make it is that the applicant sought to file the documents by her computer at home on or about 15 December.

PN40

The documents were then subsequently filed on 21 December, some three days late. The Commission would be aware that the relevant considerations in the determination of such matters is an explanation for the entire period, not simply what occurred on 15 December and there's no explanation that's been provided which can explain the reasons why the application was not lodged with the requisite period and subsequently was lodged three days late.

PN41

The explanation as to the malfunction of the computer equipment on 15 September still fails to explain how it is that that being a Tuesday, there was still a number of days to run before the 21 day period expired and the applicant provides no or the appellant provides no explanation at all for the reasons why she didn't take any action after 15 December, having regard to her computer malfunction. And so we say that what has occurred does not constitute exceptional circumstances, that the applicant could have taken action to file her application within the requisite time period but through her own inaction failed to do so, and that the explanations that have been given do not constitute exceptional circumstance and on that basis this appeal should be dismissed.

PN42

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks.

PN43

MR DOUGLAS: If the Commission pleases.

PN44

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. Ms Poke-Kingston, did you want to say anything in response to what Mr Douglas has just said?

PN45

MS POKE-KINGSTON: Yes, please. On the 15th I didn't actually try and submit it by computer, I actually tried to lodge it by phone, which it actually had in the Fair Work there, that you can actually call and lodge it by phone. The person I spoke to on the phone told me that I wasn't able to lodge it. I haven't had anything in written form at that stage because I was doing it over the phone, I thought, so I took the next few days then my husband had a fall on the Friday and then it wasn't till the Monday that it got lodged.

PN46

SENIOR DEPUTY PRESIDENT HAMBERGER: Look, we are just going to adjourn for a couple of minutes and we'll come back in a couple of minutes and give our decision, all right?

PN47

MS POKE-KINGSTON: All right.

PN48

SENIOR DEPUTY PRESIDENT HAMBERGER: So if you could just wait there.

SHORT ADJOURNMENT [11.48 AM]

RESUMED [11.49 AM]

PN49

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. We are in the position to give our decision on this matter now. First of all, I just want to say in relation to some of what Ms Poke-Kingston has put forward, it amounts to what would be fresh evidence and we're not going to accept any fresh evidence from the appellant on the grounds, really, that that material could have all been provided to Drake SDP at first instance. We have had a look at Drake SDP's decision and we've heard what both parties have had to say, and we don't consider there is any arguable case of error in the Senior Deputy President's decision and nor do we think there are any other grounds that we should grant permission to appeal. Therefore we don't grant permission to appeal and the application for appeal is dismissed. Thank you.

ADJOURNED INDEFINITELY [11.51 AM]