Alan Hesketh v South Australian Housing Trust T/a SA Housing Authority
[2022] FWC 58
•27 JANUARY 2022
| [2022] FWC 58 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Alan Hesketh
v
South Australian Housing Trust T/a SA Housing Authority
(C2021/8144)
| COMMISSIONER HAMPTON | ADELAIDE, 27 JANUARY 2022 |
Application to deal with an unlawful termination dispute – application lodged outside of initial period allowed by the Act – extension of time sought – whether exceptional circumstances – considerations applied – absence of reasonable explanation for much of the delay – merit, prejudice and other factors weighed – on balance, not satisfied that exceptional circumstances existed warranting an extension of time – no extension permitted – unlawful termination application not validly made and dismissed.
What this decision is about
This decision concerns an application by Mr Alan Hesketh (Applicant) for an unlawful termination remedy pursuant to s.773 in Part 6-4 of the Fair Work Act 2009 (FW Act). Mr Hesketh is seeking reinstatement to his former position.
The conclusion of Mr Hesketh’s employment with the South Australian Housing Trust trading as SA Housing Authority (Respondent) was communicated by letter on 26 March 2020. This correspondence confirmed that the Respondent would not be “renewing” Mr Hesketh’s “term contract” and as a result, his employment would conclude on 25 September 2020. The Respondent has not conceded that this was a termination of employment as contemplated by s.773 and has also foreshadowed a jurisdictional objection on that basis. This present matter has proceeded on the basis that any termination of employment occurred with the non-renewal of the Applicant’s contract.[1] Ultimately for reasons that will become clear, it has not been necessary for the Commission to determine this aspect.
The Respondent is an agency of the South Australian Government and Mr Hesketh’s employment was regulated, in part, by the Public Sector Act 2009 (SA). I observe that as a result of Part 6-4 of the FW Act relying upon Australia’s ratification of the Termination of Employment Convention, 1982[2] and other ILO instruments, s.733 is available to South Australian public sector employees such as the Applicant.[3]
Section 774(1) of the FW Act states that an application for the Commission to deal with an alleged unlawful termination must be made within 21 days after the employment was terminated; or within such further period as the Commission allows under s.774(2). Adopting 25 September 2020 as the reference date for the termination, the period of 21 days in this case ended at midnight on 17 October 2020.[4] The application was lodged on 30 November 2021 and is therefore filed 409 days after the 21-day initial limit. The Applicant requests the Commission to grant a further period for the application to be made under s.774(2) and the Respondent opposes this request. The FW Act allows the Commission to extend the period within which an unlawful application must be made only if it is satisfied that there are exceptional circumstances.[5]
The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent was represented by Ms Rice, Managing Solicitor, Legal Services at the SA Housing Authority. Ms Rice, being internal counsel, did not require permission to appear.[6]
As Mr Hesketh was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of his evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission.[7]
Mr Hesketh provided a written submission and gave sworn evidence on his own behalf. I find that Mr Hesketh gave his evidence openly and honestly to the best of his recollection. To the extent that any of his evidence was in the form of subjective opinion or submissions, I have treated such appropriately. The Respondent provided an outline of submissions and provided certain documents but did not otherwise provide evidence to the Commission in connection with the extension of time matter.
Mr Hesketh contends that there are exceptional circumstances warranting an extension of time on a number of grounds including the nature of the workplace culture, the alleged differential treatment he has received in being terminated, the fact that he raised his concerns with the Respondent before and after his alleged termination, and that he was seeking to leave open the potential to be re-employed within the SA Public Sector.
As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that in the absence of exceptional circumstances an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
The broad context and the immediate sequence of events associated with the timing of the termination and the application
Mr Hesketh was employed by the Respondent (or predecessor SA Government agencies) on a series of contracts commencing on 21 September 2015 until the employment concluded on 25 September 2020. Each of these contracts were stated to be fixed-term in nature.
At the point of termination, Mr Hesketh was employed as a Relocations Officer with the Respondent, working full-time. His most recent employment contract,[8] which commenced in August 2016, had been extended in July 2017 with an end date of 25 September 2020.[9]
On 26 March 2020, the Respondent wrote to Mr Hesketh in the following terms:
“… …
Dear Alan
RE: END OF CONTRACT
As per the discussion with myself and (LA) on 20 March 2020 we write to inform you that due to the funding of the Tenant Relationship and Transition Unit ceasing we will not be renewing your term contract with the SA Housing Authority. As per your term contract your last day of duty will be 25 September 2020.
You are required to return any material, documents or equipment to which you had access during the period of your contract. As with all employees, you are bound by our confidentiality and data protection policies.
You are entitled to be paid out your annual leave (if accrued) in accordance with the terms of your contract. If you have any questions in relation to this, please speak with your manager or your HR Business Partner who will be able to assist you.
We would like to thank you for your contribution, and we wish you all the best for the future.
… …”[10]
Of the 4 employees immediately involved, there were 2 other employees in the tenancy relocation services of the Respondent whose employment also ceased at or around the same time as the Applicant. Mr Hesketh was concerned about his alleged termination but was hopeful of applying for other vacancies arising with the Respondent that he might apply for. He decided not to contest his “dismissal” at that point so as not to prejudice his chances of re-employment.
At some point after the notice of the end of his employment had been given but prior to October 2020, Mr Hesketh became aware that one of the other employees of the Respondent in the tenancy relationship and transition unit (Ms LR) continued to be employed. Mr Hesketh understood that this employee, who was also engaged on a comparable fixed term contract, had subsequently been employed on an ongoing basis.
On 6 October 2020, Mr Hesketh emailed the Respondent’s Chief Executive and, amongst other matters, stated:
“… …
I am writing to you in relation to the relocations and our teams demise.
I’m a bit perplexed as to why the remainder 2 of us me and (LR) (she had her contract extended 3 times and is still there) weren't kept on, as the new structure that was released had our names on it and the Relocations Team was mentioned numerous times in the accompanying announcement.
In seeing this, our hopes where (sic) high we would be saved, as their (sic) is still much work and projects to be completed, at least a couple of years with Playford and funding already committed, and other exciting projects in the west etc.
We were all told in March by Andrew, our contracts would not be renewed, which we didn't quite understand due to projects being an ongoing, and those involved with 3 years of service, given permanent contracts.
Andrew stated budget cuts, however since then we have seen NEW Personal join the projects on level 3, and our role is critical to the whole chain in the team scheme of things.
… …”.[11]
In that email, Mr Hesketh advised that he had earlier unsuccessfully sought to raise his concerns, that he would return to the workplace “in a heartbeat” and that he was disappointed by the decision to change the work of the relocation services and his termination. Although it may have been implied, Mr Hesketh did not expressly seek a review of his termination or a reply, and none was provided.
On 21 October 2020, Mr Hesketh wrote to one of the Respondent’s Hunan Resources (HR) personnel and raised the same concerns. In addition, Mr Hesketh advised that he was not given an exit interview and would have preferred to have raised his concerns in a less formal manner than the email. Mr Hesketh indicated that he “looked forward to hearing from (the officer) soon …”.[12] No response was provided to the Applicant.
On 2 November and 1 December 2020, Mr Hesketh wrote to an officer in the Respondent’s HR area in relation to positions that were apparently advertised internally (available to applicants from with the SA public sector) in the following terms:
2 November 2020 at 10:07 am
“Hi Aimee
Just a point of clarification, would I be allowed to apply for jobs advertised in the I am a SA Public Sector employee section for Housing S.A positions, due to our circumstances.
Cheers Alan”
1 December 2020 at 2:44 pm
“Hi Aimee
Hope your well, I see Angela has put out an EOI, for Relocation Officers Internally. Unfortunately, not for want of trying, I haven't been able to secure Employment outside of the Public Sector.
I would be keen to resume my position, as they did keep (LR) on (we were both listed in the new Structure) and are an Equal Opportunity Employer.
Kindest Regards Alan”[13]
On 16 December 2020, Mr Hesketh wrote to the relevant South Australian Minister and his correspondence was referred to the Respondent. Mr Hesketh followed up with the Minister’s Office on 30 December 2020 and sought that the Minister deal with the complaint directly.
On 20 January 2021, the Respondent (via one if its HR staff) advised Mr Hesketh as follows:
“… …
Dear Alan,
Thank you for your email of 16 December 2020. As you would be aware the restructure of the Portfolio Planning and Asset Management directorate identified one ongoing employee who has been reallocated to tenant relocations activity.
In answer to your question as to why your contract was not extended, as was discussed with you at the time by both management and HR, at the time of your contract end date a number of the neighbourhood renewal projects which were primarily the focus of the role were subject to Public Works Committee consideration. As a result the future workload for relocations could not be anticipated and your contract was not extended. I believe HR worked with you in an attempt to find you further roles in the authority which you respectfully declined.
Since that time the Committee processes has finalised and the workload has been confirmed for the next 12 months, this was out of our control. The resourcing has been sourced from within the Authority existing staffing base as is the common practice for short term assignments. As you are no longer a public sector employee we were unable to appoint you to this role.
If you have any further queries please do not hesitate to contact me via mobile xxx or email.
…… ‘[14]
On 24 February 2021, Mr Hesketh emailed the HR Officer concerned and advised that he had left messages and wanted a call back.
On 25 February 2021, the HR Officer concerned advised[15] Mr Hesketh in effect, that she had explained the circumstances of the decision, that no further discussion was necessary and that if future roles became available (to external applicants) they would be advertised and he could apply. The Officer further advised that the Respondent considered that the matter was closed.
On 27 February 2021, Mr Hesketh wrote again to the Respondent and rejected much of the information provided to him. He did so in the following terms:
“Hi Aimee
Sorry to have to write to you again in these circumstances, however I need to set the record straight as to what Angela is stating here.
One we were ALL told our contracts would not be renewed (all except 1, (DB) as he was permanent), I inquired with H.R if their would be other positions elsewhere.
Yes no promises were made only the, word would be put out for potential positions. None were forth coming.
I made my own inquiries at other branches, there was none.
Yes I had 1 zoom meeting with you, just to discuss the matter and reiterate our telephone conversations and emails, still no job offers were made to me, other then look beyond state govt.
After Andrew put out the final dept structure, both Linda and I were on it as Relocation officers, by this time Linda had had her contract extended 3 times, and she was due to leave 3 days after me.
But she was kept on, and I was let go ???????.
At NO stage was I offered any other positions within SAHA, if I had I would have accepted. This whole process has been extremely disappointing, unfair, and sadly untrue, how could one by chosen over another when the mantra is promoted as equal, and as was mine and Linda's performances.
Kind Regards Alan”[16]
During this period and for most of 2021, Mr Hesketh continued to apply for some externally advertised positions within the SA public sector but was not successful.
At some point in mid-2021, Mr Hesketh undertook some research in connection to potential legal proceedings to contest his alleged termination. Although his evidence about this was not entirely clear, I accept that he became aware of the capacity to take this application at that time but did not research the matter to the point of downloading the application forms or gaining an understanding of the prerequisites of the application.
Based upon Mr Hesketh’s evidence, it is also a reasonable inference that even when he became aware of the 21-day initial time limit, he took a further period to put his material together and to prepare and lodge this application. In any event, it is apparent that Mr Hesketh did not give any priority to this course of action.
Mr Hesketh ultimately lodged this application on 30 November 2021.
Should an extension of time be granted?
The FW Act allows the Commission to extend the period within which an unlawful termination application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[17] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[18]
The requirement that there be exceptional circumstances before time can be extended under s.774(2) is a high hurdle[19] and contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 774(2) of the FW Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[20] I now consider these matters in the context of this application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission in matters applying similar provisions have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however all of the circumstances must be considered on their own merits.[21]
I have set out the chronology of events earlier in this decision, including the context and consequences of certain exchanges between the parties and others.
Mr Hesketh principally relies upon the following propositions as reasons for the delay:
· There was a toxic culture within the Respondent;
· He was hoping to secure a position and did not want to hinder his chances by contesting his termination;
· A work colleague (Ms LR) was kept on and made permanent;
· He had raised his concerns with the Department and had not been offered any employment; and
· There were untruths in the positions communicated by the Respondent in dealing with his concerns in late 2020 and early 2021.
Whilst I accept that Mr Hesketh did raise his concerns with the Respondent at various points up until late February 2021, he did not apparently seek advice or take any action to formally contest his dismissal for a relatively long period after he knew that the Respondent considered that the matter (his complaints) was closed, that Ms LR had been retained, and that he was not receiving any special treatment in terms of vacancies that occurred within the Department after his alleged termination.
Even accepting the Applicant’s contention regarding the workplace culture and the circumstances surrounding Ms LR on face value, Mr Hesketh has not properly justified how these factors explain the delay in making this application. Indeed, there is some tension between the proposition that he trusted the Respondent to do the right and fair thing, with the proposition that he was treated very unfairly by the Respondent and its management. However, even accepting that he wanted to maximise the potential for his further employment in the broader public sector (beyond the Respondent) the alleged workplace culture does not assist the Applicant’s explanation for the delay.
As a result, there is some partial explanation for part of the delay in making the application; however, there is a very long period of the delay for which no reasonable or acceptable explanation has been provided.
This consideration weighs against a finding of exceptional circumstances.
Any action taken by the employee to dispute the termination
Mr Hesketh raised concerns with the Respondent but did not expressly dispute his termination in the sense that he sought that it be altered until this application was lodged. I would however accept that the raising of his concerns with the Respondent is relevant to some degree and should be taken into account in this matter. However, the fact that this effectively ceased 10 months before making this application is a significant militating factor.
Mr Hesketh did not actively seek to ascertain his capacity to formally contest the alleged termination for many months after it became effective, and when he did, he took no further actions to actually do so for many months. Mr Hesketh also had 6 months’ notice of the conclusion of his employment and this establishes part of the context in which his actions to dispute the dismissal should be assessed.
On balance, this consideration does not support a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent did not cite any particular prejudice associated with the delay in lodging the unlawful termination application. The mere absence of specific prejudice is not, by itself, a sufficient basis to grant of an extension of time. However, to the extent that the absence of prejudice supports an extension in this case, I attribute it at least some weight in the consideration of whether there are exceptional circumstances.[22]
Merits of the application
The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[23]
Mr Hesketh contends that his termination was unlawful on the basis of discrimination associated with his gender and age. In short, he contends that this is because he is male employee and older than Ms LR, who was retained. The Respondent rejects those contentions and points out that the other 2 employees whose contracts were not renewed at the time of the Applicant’s alleged termination were female workers and the retention of Ms LR took place in the context of funding changes that occurred later. This latter aspect is disputed by Mr Hesketh. As outlined earlier, the Respondent also states that Mr Hesketh was not terminated within the meaning of Part 6-4 of the FW Act on the basis that his fixed term contract expired; that is, there was no termination at the initiative of the employer – rather the agreed contract expired.[24] This latter aspect represents an arguable jurisdictional objection which would need to be determined should an extension of time be granted.
Given the nature of the extension of time proceedings, there is insufficient evidence before the Commission to make a detailed assessment of this consideration, beyond the observation that it cannot be said that the application and the foreshadowed jurisdictional objection are without merit.
I consider that the merits factor weighs mutually between the parties as a consideration of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor.[25] I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.
Conclusions
Having considered all of the circumstances of this matter and the considerations provided by s.774(2) of the FW Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unlawful termination application was lodged beyond the initial period provided by s.774(1)(a), and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[26] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
A Hesketh, the Applicant on his own behalf.
E Rice, Managing Solicitor, Legal Services, with N Tufnell and G Claridad for the South Australian Housing Trust t/a SA Housing Authority, the Respondent.
Hearing details:
2022
January 20
By video hearing.
[1] The comments of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [86] are apt in this regard.
[2] Convention No 158, ratified on 26 February 1993.
[3] The Applicant is not a national system employee and is not eligible to bring a General Protections Court application – s.723 of the FW Act.
[4] The 21 day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[5] Section 774(2) of the FW Act.
[6] Section 596(4) of the FW Act.
[7] See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
[8] Exhibit R4.
[9] Exhibit R5.
[10] Exhibit A14.
[11] Exhibit A5.
[12] Exhibit A6.
[13] Exhibit A7.
[14] Exhibit A12.
[15] Exhibit A11.
[16] Exhibit A10.
[17] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[18] Ibid.
[19] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[20] Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[21] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[22] See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 61 IR 298 at 299 to 300.
[23] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[24] There is some support in the authorities for this proposition. However, the FW Act does not expressly define the expression “termination of employment”. ILO Convention 158 permits a ratifying country to exclude workers engaged under a contract of employment for a specified period of time or a specified task (Article 2). The FW Act defines “dismissed” in s.386 and it is not presently necessary to consider and determine the meaning of termination of employment for the purposes of Part 6-4 of the Act.
[25] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration in a similar context.
[26] PR737624.
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