[2012] FWA 3167 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Sharon McLennan
v
Northern Territory Stolen Generations Aboriginal Corporation
(U2011/12743)
COMMISSIONER SPENCER |
BRISBANE, 12 APRIL 2012 |
Jurisdiction - extension of time
[1] This decision relates to a jurisdictional objection made by the Northern Territory Stolen Generations Aboriginal Corporation (Employer/the Respondent) with respect to an application by Ms Sharon McLennan (the Applicant) made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant was dismissed by the Respondent and the dismissal was harsh, unjust or unreasonable. A jurisdictional objection was made by the Respondent that the application was made out of time, or not within the 14 day statutory timeframe after the dismissal took effect. Fair Work Australia (FWA) has a discretion to extend this statutory timeframe, taking into account the provisions of s.394(3) of the Act.
[2] Following an unsuccessful conciliation before a conciliator, the matter was allocated for arbitration before FWA as currently constituted with the jurisdictional objection to be initially determined. Directions were issued for the filing of submissions. These Directions were then amended to allow further time for submissions relating to the jurisdictional objection. This jurisdictional matter is determined on the papers in accordance with submissions of parties.
[3] The application for unfair dismissal remedy was filed on 20 October 2011. The Applicant alleged that her termination took effect on 7 October 2011. The Respondent disputed this date and contended that the termination took effect at close of business on 4 October 2011. If the Respondent is correct, the Application was filed 2 days out of time.
Relevant legislative provisions
[4] The relevant provisions of the legislation are as follows:
Fair Work Act 2009 - section 394
Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
...
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Applicant’s submissions on extension of time
[5] The Applicant filed submissions in accordance with the Amended Directions.
[6] The Applicant submitted that on 4 October 2011 (the date of dismissal) she attended a meeting with the Acting CEO of the Employer, Ms Janetta O’Donnell. The Applicant’s representative from the Australian Services Union (ASU/Union), Ms Sue Beaumont, also attended. The meeting was held in relation to the incident, that ultimately led to the termination of the Applicant’s employment. However, the Applicant submitted that she was unaware that it was to be a disciplinary meeting. The Applicant submitted that at the meeting she answered the questions asked of her, offered to make a written apology and was advised by Ms O’Donnell that she would confirm with the Applicant any further outcome the following day. The Applicant submitted that she did not hear anything further the following day, so she contacted Ms O’Donnell the day after that (6 October 2011) and was advised that her employment had been terminated.
[7] The Applicant submitted that at that point she contacted her union representative and requested that the ASU obtain the relevant documents (including a letter of termination) from the Employer. The Applicant’s material included a copy of the email that was sent by the ASU to the Employer on 6 October 2011 and the reply that was sent by Ms O’Donnell on 11 October 2011. Ms O’Donnell stated the ASU’s email was found in her ‘junk mail’ on her computer. It is not clear when the information was sent by the ASU to the Applicant.
[8] The Applicant submitted that the first advice she received (in writing) of her dismissal was on 15 November 2011 and this included the termination letter, the Respondent’s response to the unfair dismissal application, Respondent’s jurisdictional objection to the application and the Notice of Representation. These documents were sent by the Respondent to the Applicant by registered post.
[9] The Applicant submitted that she became aware that she had been terminated on 6 October 2011 (during the telephone conversation with Ms O’Donnell) and assumed that the dismissal took place that day and was effective as of 7 October 2011. 1 She submitted that she contacted the ASU on 10 October 2011 but it took the ASU ‘some time’ to respond to her queries. She was informed by the ASU representative that a person had 14 days to act on an unfair dismissal matter. The Applicant submitted that she ‘strongly believed’ that the Union would file the application on her behalf. When she discovered this was not the case on 20 October 2011, she attended the FWA office in Darwin on 20 October 2011, obtained the unfair dismissal application and completed and filed it that day, believing that was the final day to file the application.
Respondent’s submissions on extension of time
[10] The Respondent submitted that there were no exceptional circumstances that would warrant the exercise of the discretion by FWA to extend the time limit to allow the application.
[11] The Respondent submitted that the Applicant was stood down on full pay after an incident in the workplace on 27 September 2011. The Respondent explained that this was done so that arrangements could be made for the Applicant to have an ASU representative attend a disciplinary interview regarding the incident. The meeting was arranged for 4 October 2011. The Respondent disputed the Applicant’s contention that she was unaware it was a disciplinary meeting.
[12] It was the Respondent’s submission, that the phone call in which Ms O’Donnell advised the Applicant that her employment was terminated occurred, on 5 October 2011 (not 6 October as the Applicant submitted). Ms O’Donnell provided a witness statement as evidence of this. 2 Ms O’Donnell’s witness statement, as referred to, set out the events as follows:
“1. At the time of the termination of Sharon McLennan's employment, I was employed by the Northern Territory Stolen Generations Aboriginal Corporation in the position of Acting Chief Executive Officer.
2. Sharon McLennan phoned me on the morning of 5 October 20 II and I explained to her that the Board of Director's had endorsed my recommendation for the termination of her employment with effect from close of business on 4 October 2011, with payment of 2 weeks of pay in lieu of notice, for the reasons that I subsequently set out in the letter of termination of employment dated 5 October 2011.
3. I am absolutely certain that the phone call took place on the morning of 5 October 2011 because following the phone call; I drafted and sent an email, which outlined the course of the conversation and Sharon McLennan's disparaging remarks, to members of the Board of Directors. The transmission time of that email was 11:02 AM on 5 October 2011.
...”
[13] Ms O’Donnell’s email to the Board of Directors was attached. It was sent at 11:02am on 5 October 2011. The email stated in part:
“Just spoke to Sharon, advised her that her employment has been terminated, she said that I am a joke and that Board is a f... joke, then she said that I had hung up and disconnected the call. She called back immediately and asked why I had hung up on her, I advised her that I was still on the line. She said whatever. I advised her that we would pay her 2 weeks in lieu of notice, less the overpayment she had already received on Monday into her account, she asked that the remainder of the final payment go into her commonwealth account.
...”
[14] Whilst the Respondent contended that the date that the dismissal took effect was 4 October 2011, in accordance with the Board’s confirmation of Ms O’Donnell’s decision. The Applicant was made aware of the dismissal on 5 October 2011 (during the telephone discussion with Ms O’Donnell), on that basis it was argued that the final date for lodging the application was 19 October 2011, 14 days from 5 October 2011.
[15] The Respondent submitted that, as the Applicant admitted to being advised by the ASU about the lodgement of unfair dismissal claims, the onus is on her to show that exceptional circumstances exist. It was submitted that the Applicant’s erroneous claims about the date, she thought the conversation with Ms O’Donnell occurred on and the date she therefore assumed the termination would take effect on, do not constitute exceptional circumstances. In response to the Applicant’s submissions, that the ASU was not efficient in obtaining the relevant documents from the employer and providing advice to the Applicant, the Respondent submitted that this does not constitute exceptional circumstances. The Respondent queried why the Applicant did not follow up with the ASU or FWA sooner than 20 October 2011 (after the final date for lodgement), particularly given the Applicant had confirmed that the ASU had advised her of the 14 day time limit.
[16] The Respondent argued that while the Applicant’s submissions made a broad allegation, that the ASU had failed to respond to her requests, the Applicant has provided no evidence or details that the conduct, amounted to representative error, constituting an exceptional circumstance. Further, the Respondent submitted that the Applicant gave no evidence as to why she was entitled to hold or rely on a ‘strong belief’ that the ASU would file the application, with no further input required from the Applicant.
[17] Finally, the Respondent submitted that, a consideration of the merits of the application did not contribute to extending the time limit. It was submitted that the incident in the workplace, that formed the basis of the dismissal, had been admitted to by the Applicant, and therefore, the Respondent contended that the Applicant’s conduct was sufficiently inappropriate, having regard to the nature of the workplace. The Respondent submitted that a finding in favour of the Applicant on the substantive issues of the case was unlikely.
Effective date of termination
[18] As a threshold issue, it must be determined when the termination of the Applicant’s employment took effect.
[19] The Applicant submitted that she telephoned the Respondent on Thursday, 6 October 2011, at which time she spoke to Ms O’Donnell (Acting Chief Executive Officer of the Employer). Ms O’Donnell advised the Applicant that her employment had been terminated.
[20] The Respondent filed in evidence, a signed affidavit of Ms O’Donnell, which stated that the Applicant ‘phoned me on the morning of 5 October 2011 and I explained to her that the Board of Director’s had endorsed my recommendation for the termination of her employment with effect from close of business on 4 October 2011...’. Ms O’Donnell substantiated this by providing an email, she sent to the Board of Directors on 5 October 2011, as extracted, which reported the details of her conversation with the Applicant from the meeting the day before.
[21] Additionally, the Applicant attached an email to her submissions dated Thursday, 6 October 2011. The email, from the Applicant’s union representative, Ms Sue Beaumont, to Ms O’Donnell, stated ‘Sharon Mclennan has advised me that her employment was terminated yesterday.”
[22] On the balance of the evidence, I find that the Respondent advised the Applicant that her employment had been terminated during the telephone conversation of 5 October 2011. As the Applicant was informed of the dismissal on 5 October 2011, I find that the date that the termination took effect was the close of business on 5 October 2011. Consequently, the application was lodged (on 20 October 2011), out of the statutory time limit.
Consideration
[23] The following assessment of each of the provisions in s.394 (3) of the Act, undertaken examine whether exceptional circumstances exist to allow for an extension of time. The onus rests with an applicant to demonstrate exceptional circumstances to justify FWA to exercise the discretion to extend time.
s.394(3)(a) the reason for the delay
[24] A Respondent should be able to rely on compliance with statutory time frames. The Applicant’s submissions do not adequately explain the delay.
[25] The Applicant submitted that at the time of lodgement on 20 October 2012, she believed that it had been 13 days since her termination had taken effect. The Applicant further submitted that the reason she did not lodge her Application earlier was that because “it took the Union sometime to respond to [her] queries about what [her] options were” and that she held a ‘strong belief’ that the Union would lodge the application on her behalf. The Applicant conceded, to being advised of the 14 day restriction on lodgement, but did not provide a date on which she was advised of such.
[26] The Respondent submitted that the Applicant’s contention that after requesting documentation of the dismissal be retrieved by the Union from the Respondent, the Applicant’s interaction with the Union was minimal. The Respondent argued that this was ‘demonstrative of the level of concern and diligence exercised by the applicant...’ 3 The Respondent further submitted that these documents were provided to the applicant by the Respondent after the Applicant lodged her application. Accordingly, this delay in the provision of the documents did not stop the Applicant from lodging the Application on 20 October 2011, it should not have caused a delay in lodgement before the 20 October 2011.
[27] The Applicant has submitted that ‘it took the Union sometime to respond to [her] queries about what [her] options were’ and that she ‘strongly believe[d] that the Union was going to file an application on [her] behalf which didn’t occur.’
[28] A Full Bench held that:
“Depending on the particular circumstances, representative error may [original emphasis] be a sufficient reason to extend the time within which an application for relief is to be lodged …” 4
[29] The Respondent in this matter argued that the Applicant has not ‘specified when nor about what the alleged requests were made nor specified any evidence to suggest that representative error occurred and constituted an exceptional circumstance that prevented her from making the lodgement within the prescribed time.’ 5
[30] In McConnell v. A and P M Fornataro 6, the majority of the Full Bench of FWA adopted the following approach:
"...a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
Error by an applicant's representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted..." 7
[31] There is an absence of information regarding the Union’s involvement. Therefore, to determine whether the Union’s actions in this matter amounted to representative error so as to be sufficient reason in extending time, the actions of the Applicant must be examined.
[32] The Applicant submitted that she was advised of her termination by Ms O’Donnell via telephone on Thursday, 6 October 2011. This has been found to be 5 October 2011. The following week she contacted the Union who then, on the Applicant’s submission, took ‘sometime’ before responding to her enquiries, regarding her options. The Applicant does not indicate how long it took for the Union to respond to her, nor what the Applicant’s enquiries were, nor what the Union’s advice was in relation to the lodgement of an application for an unfair dismissal remedy to FWA.
[33] On the evidence, there is no firm basis as to why the Applicant held such a belief that the Union would lodge her application on her behalf. The particular circumstances of this matter suggest that it would fall within the first example provided in the matter of McConnel v A and P M Fornataro, outlined above. That is, there is no evidence to suggest that the Applicant gave clear instructions to the Union to lodge an application, nor is there evidence to suggest that the Applicant took sufficient steps to enquire as to the status of her claim.
[34] The circumstances of the current matter can be distinguished from those of Setterfield v. Syefile Pty Limited 8 where Roberts C held representative error was a significant factor:
"...in this case, it appears clear that representative error is the major, and possibly only, factor in the late lodgement of the application. (The applicant) was diligent in pursuing his case with his solicitors and was not the cause of any delay. He was entitled to rely on the advice of his solicitors.
All in all, the admitted error by (the solicitor) is sufficient, in my view...to constitute exceptional circumstances sufficient to render extension of time just and equitable. I therefore grant (the applicant) an extension of time and the time for lodgement of his application is extended until the actual date of filing..." 9
[35] The Applicant in this matter was not diligent in confirming the progress of the matter.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[36] The Applicant submitted that she was not made aware of the dismissal until 6 October 2011, during a telephone conversation with Ms O’Donnell, the acting Chief Executive Officer. The Respondent argued that this telephone conversation took place on 5 October 2011 (which is confirmed), during which the Applicant was made aware, that her employment was terminated at close of business on 4 October 2011. The Respondent substantiated this assertion, by providing an email from Ms O’Donnell to members of the Board dated Wednesday, 5 October 2011 which detailed the telephone conversation with the Applicant and commenced with the words ‘[j]ust spoke to Sharon...”
[37] It is also noted that Attachment A to the Applicant’s submissions, has a copy of an email that was provided dated Thursday, 6 October 2011 that substantiated that the telephone discussion between Ms O’Donnell and the Applicant occurred on 5 October 2011. The email was from the Applicant’s Union representative, Ms Sue Beaumont, to Ms O’Donnell and stated ‘Sharon Mclennan has advised me that her employment was terminated yesterday.”
[38] On the balance of the evidence, the Applicant was made aware of the dismissal on 5 October 2011. The 14 day period would then finalise on 19 October 2011.
s.394(3)(c) any action taken by the person to dispute the dismissal
[39] The Applicant submitted that she contacted the Union, in the week following her conversation with Ms O’Donnell. The Applicant submitted that it then took the Union, ‘sometime’ to advise the Applicant on what her options were in responding to the dismissal. She also confirmed that a Union Representative advised her that she had 14 days to lodge an unfair dismissal application (although the Applicant does not specify when this advice was given.) The Applicant stated that ‘communication between [her] and ASU was minimal’. 10
[40] The Applicant further submitted that she held the belief that the Union was going to file an Application for an unfair dismissal remedy on her behalf but, when it became clear that this was not going to occur, she attended the Darwin office of FWA to lodge the Application herself, on what she believed was the last day available to her.
[41] The Respondent submitted that the Applicant has not provided any evidence as to why she held the belief that the Union would file on her behalf; nor has any reasoning been provided as to why she did not follow the matter up with the Union. The Respondent argued that this minimal interaction brings into question the Applicant’s lack of ‘concern and diligence’ in disputing the dismissal.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[42] It has been held that, ‘[i]t is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.” 11
[43] The Respondent has not provided arguments suggesting that the delay in the lodgement of the Application caused them prejudice; nor has the Respondent argued that any prejudice has been caused.
s.394(3)(e) the merits of the application
[44] The Applicant submitted that she commenced employment in March 2012 in the role of assistant to the caseworkers and the CEO of the organisation. The Applicant went on leave in June 2011 due to the stress caused from the ‘politics and mismanagement of the organisation’. Whilst on leave, the Respondent advised the Applicant, that upon her return to work, she was to assume the role of receptionist for two and a half days a week. The Applicant spoke to the Union regarding this issue, and the Union advised her that the issue would be resolved upon her return to work.
[45] On returning to work on 27 September 2011, the Applicant was advised by the acting CEO that she would ‘maintain reception.’ The Applicant perceived this as a ‘demotion’ and proceeded to dispute this with the Acting CEO. The Applicant submitted that she was asked to leave work at 11:55am with pay and that she would have a meeting with the Board member the following day. The following week the Acting CEO met with the Applicant to discuss the argument that occurred on 27 September 2011.
[46] The Respondent submitted that while the Applicant was on leave, it came to light that the Applicant had failed to complete a required assessment for training, which would have allowed the Applicant to obtain a mandatory qualification, to meet the requirements of her position. An extension was provided, however the Applicant did not submit the assessment.
[47] The Respondent further submitted that the Applicant took stress leave after being reprimanded in relation to ‘unjustified and unwarranted aggressive behaviour’ towards the Acting CEO at a staff meeting on 23 June 2011. The Respondent submitted that the Applicant had not provided a doctors certificate or any documentation in support of her stress leave.
[48] It was the Respondent’s evidence that on 27 September 2011, the Applicant was asked to assume the role of receptionist on a temporary basis. The Applicant took exception to this request and became ‘boisterous and critical’. The Respondent stated that when she was asked by another employee to quieten down, the Applicant became abusive towards the employee, accusing the employee of having ‘no culture’. 12 The Respondent’s letter of termination stated:
“Additionally, whilst you offered to make a written apology for your admitted racial abuse of G. Corliss, that offer was made on an if required basis rather than from an appreciation that your conduct was totally against everything that the NTSGAC stands for.”
[49] The disciplinary review meeting was arranged between Ms O’Donnell and the Applicant for 4 October 2011, where the Applicant was accompanied by Ms Beaumont of the Union. After the meeting on 4 October 2011, the Board endorsed Ms O’Donnell’s recommendation to terminate the Applicant’s employment.
[50] Given the differing submissions of the parties on the substantive merits of the disciplinary issue and facts of the matter, considerable weight has not been attributed to this element. The determination of this issue would require the assessment of sworn evidence.
s.394(3)(f) fairness as between the person and other persons in a similar position
[51] The Applicant does not address this element in her submissions. The Respondent also does not identify this element as having any relevance in these circumstances. No other employees were involved. Accordingly no weight has been attributed to this element of consideration.
Conclusion
[52] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time, for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 13 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)14 as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, 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.”
[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”
[53] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 15
[54] The criteria in s 394 (3) of the Act have been carefully considered. I do not consider that on the basis of material provided that there were satisfactory reasons advanced as to why the application was not lodged within the statutory time limit. The events referred to, regarding the lodgement occurred at the end or after the statutory period.
[55] No causative link was established on the basis of the circumstances, that justified why the Applicant (in the knowledge of the time limit), did not query whether her application had been filed. There was no evidence from the Applicant or the Union regarding a definite agreement for the Union to file the application on behalf of the Applicant, or any evidence on impediments to lodgement. Further, the Applicant did not query the lodgement with the Union. The Applicant was aware that her employment had been terminated on 5 October 2011, as a result of the telephone call on that day.
[56] The Applicant has not established ‘exceptional circumstances’ to justify the failure to file the application within the statutory time limit. The Application is therefore dismissed pursuant to s 394(2). I Order accordingly.
COMMISSIONER
1 Sharon McLennan, Submissions Regarding the Jurisdictional Objection, p. 4.
2 Witness Statement of Janetta O’Donnell.
3 Respondent’s outline of submissions, [6].
4 Ross VP, Drake DP, Deegan C, Clark v Ringwood Private Hospital, Print P5279, 22 September 1997.
5 Respondent’s outline of submissions dated 25 January 2012, [8].
9 Setterfield v. Syefile Pty Limited [2010] FWA 3351, [20] and [21].
10 Sharon McLennan, Submissions dated 18 January 2012, p. 2.
11 Cowie and another v State Electricity Commission of Victoria, [1964] VR 788, 21 July 1964.
12 Form F3—Employer’s Response to Application for Unfair Dismissal Remedy, response to question 3.
13 Whelan C, [2009] FWA 1638, [30] and [31].
14 Lawler VP, [2010] FWA 1394.
15 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWA 7251, at [5].
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