Alison Cornish v Chuwar Baptist Church

[2015] FWC 7072

[2015] FWC 7072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alison Cornish
v
Chuwar Baptist Church
(U2015/10352)

COMMISSIONER JOHNS SYDNEY, 5 NOVEMBER 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Mrs Alison Cornish (Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 1 September 2015, that being 90 days after her employment was terminated by the Chuwar Baptist Church (Respondent) on 3 June 2015.

The jurisdictional objections

[3] On 11 September 2015 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than 21 days after the dismissal took effect. The Respondent also noted objections to the application on the basis that the Applicant was not dismissed, rather that she resigned from her employment, and, that the Respondent is not a national system employer as defined by s.14 of the FW Act. This decision only concerns whether an extension of time should be granted to the Applicant for the lodgement of this application.

[4] On 15 September 2015 the Commission wrote to the Applicant outlining the matters to be considered by the Commission under the FW Act and asked her to provide a statement addressing these matters within 14 days. Material was filed on behalf of the Applicant on 28 September 2015. In short the Applicant says that, although the termination took effect on 3 June 2015:

a) She had initially intended to make an application within 21 days, however was advised by her supervisors that she should attempt alternative dispute resolution in the first instance; and

b) attempts to resolve the matter were unsuccessful and the Applicant then approached the governing body of the Respondent, however this did not lead to a resolution of the matter.

Legislative scheme

[5] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[6] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.  4

Background

[7] The Applicant was employed by the Respondent from 19 November 2012. She ceased employment with the Respondent on 3 June 2015.

[8] The Applicant resigned from her employment on 3 June 2015 after being presented with a Letter of Caution from the Respondent. The Applicant says her resignation was a constructive dismissal.

[9] The Letter of Caution referred to the distribution of minutes of a meeting by the Applicant without approval of the leadership of the Respondent.

[10] The Applicant submits that she had no other option but to resign from her employment due to the Letter of Caution, which stated:

“If however you choose not to sign this letter it will be seen as a decision by yourself to not continue in your current position”.

[11] The Respondent submits that it had a valid reason for issuing the Applicant with the Letter of Caution. It submits that the Applicant deliberately bypassed a requirement for leadership approval when distributing the minutes of the meeting.

Consideration

Paragraph 394(3)(a) - The reason for the delay

[12] It is indisputable that there were 90 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[13] The Applicant says the primary reason for the delay was that she attempted to resolve the matter with the Respondent directly.

[14] There was nothing to prevent the Applicant from lodging her application within the prescribed timeframe. Once an application is filed there is nothing to prevent an applicant from attempting to resolve a matter directly the Respondent. These processes could have taken place concurrently.

[15] I am not satisfied that the Applicant’s circumstances were out of the ordinary, unusual or uncommon. This factor weighs against granting the applicant an extension of time.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[16] It is uncontested that the Applicant first became aware of the dismissal on 3 June 2015.

[17] This factor weighs against granting the applicant a further period for the filing of her unfair dismissal application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[18] The Applicant took the following action to dispute the dismissal:

a) She attempted to participate in mediation directly with the Respondent;
b) When that mediation was unsuccessful she contacted the Respondent’s governing body; and
c) She made this application.

[19] I am satisfied that the Applicant was genuinely aggrieved by the cessation of her employment and that she enlisted the aid of others in a genuine attempt to informally resolve the matter.

[20] This factor weighs in favour of granting the Applicant a further period for lodging her unfair dismissal application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[21] The Respondent submitted that it would be prejudiced if the application proceeds.

[22] I am satisfied that there would be no greater prejudice to the Respondent caused by the application being listed now than there would have been had it been lodged within time.

[23] For present purposes, I treat the prejudice to the employer as a neutral consideration.

Paragraph 394(3)(e) - The merits of the application

[24] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[25] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[26] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[27] The substantive factual contests between the Applicant and the Respondent include whether there was a constructive dismissal and, if there was, whether distribution of the minutes of the meeting without leadership approval constitutes a valid reason for the dismissal. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[28] If the matter proceeds to hearing of the merits and the Applicant can establish that the conduct of the Respondent was such that she had no other option but to resign from her employment, and that there was no valid reason for the dismissal, then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[29] Because the Applicant’s case is not without merit or lacking in substance, this factor weighs in favour or granting an extension of time.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[30] There was no issue of fairness in relation to any other person in a similar position raised by either party.

[31] This is a neutral factor for consideration.

Conclusion

[32] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion, is not satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application). The application for an extension of time is refused. An Order to this effect will be issued with this decision.

COMMISSIONER

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1

 4 Above note at [13].

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.

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