Belinda King v Christ Church Grammar School

[2022] FWC 2937

[2022] FWC 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Belinda King
v

Christ Church Grammar School

(U2022/8736)

DEPUTY PRESIDENT BELL MELBOURNE, 7 NOVEMBER 2022

Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed.

1. On 26 August 2022, Ms Belinda King (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Christ Church Grammar School (Respondent) on 2 February 2022 (having been notified of the dismissal on 18 January 2022).

1. In the Respondent’s ‘Form F3 Employer Response’ filed with the Commission on 19 September 2022, the Respondent states the Applicant was notified of her dismissal on 3 February 2022 and the dismissal took effect on 16 February 2022.

1. By s.392(2) of the Act, the Commission may only make an order for remedy if the person has made an application under s394. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect.

1. Based on the material before the Commission, the Applicant made her unfair dismissal application outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application: s.394(3).

1. There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a conference or hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the Act).

1. The Applicant gave evidence on her own behalf, and filed an email statement and various supporting documents. The Respondent filed a responsive email statement from Ms Fay Samaras, the Head of Human Resources, and various supportive documents. Ms Samaras gave evidence about those matters. Mr Scott Butler, Director of Business, represented the Respondent at the hearing before me. As events transpired, Mr Butler also gave brief evidence on the day.

When did the dismissal take effect?

1. There is no substantial dispute as to when the dismissal took effect. The Applicant contends in her Form F2 application, and I accept, that the date of dismissal was 2 February 2022.

1. For completeness, the Applicant’s evidence includes a letter from the Respondent dated 3 February 2022. That letter refers to a meeting the day before – i.e. 2 February 2022 – in which I infer that the Applicant was substantively told her position would no longer be continuing due to a restructure.

1. The letter stated “it is unfortunately necessary to confirm that your position as a Receptionist has been declared redundant.” The effective date was expressed to be 2 February 2022 (presumably reflective of the discussion the day before) and stated that various entitlements would be paid out. The Applicant’s last day of actual work was 2 February 2022 or possibly the next day.

1. I am satisfied that the date of dismissal was 2 February 2022. Even if the date were 3 February 2022 (or 16 February 2022, as the Respondent’s Form F3 indicates), the differences are not material in the circumstances before me.

When was the application made?

1. It is not in dispute, and I so find, that the application was made on 26 August 2022.

1. The final day of the 21 day period was therefore 23 February 2022 and ended at midnight on that day.

1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

1. Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are “exceptional circumstances”, taking into account:

(a)   the reason for the delay; and

(b)   whether the Applicant first became aware of the dismissal after it had taken effect; and

(c)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

1. I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 23 February 2022. The delay is the period commencing immediately after that time until 26 August 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] In the present case, the delay is approximately 184 days (i.e. slightly over six months late).

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]

1. Before setting out the reasons for delay, it is necessary to provide some context for the dismissal.

1. The Applicant was dismissed because (on the Respondent’s case), her position was made redundant following a review and restructure. The evidence before me indicates there was consultation occurring from around 18 January 2022 about such matters.

1. At that time, the Applicant was employed full-time as a receptionist. A letter dated 18 January 2022 stated that, as a result of a proposed restructure, the receptionist role would be abolished. The letter stated that three new positions would be created, which relevantly included a “modified” form of the existing “registrar” role, albeit with the modification being to include working on reception. Other new roles referred to were a part-time ‘Social Media and Communications Officer’ and a full-time ‘Executive Assistant to the Leadership team and CCGS Board’.

1. In August 2022, the Applicant says she became aware that the school “employed an Office Administrator early August and has been assisting with reception duties as has been the social media person and the EA.” According to the Applicant, that restructure was not reflected in what she was told in early 2022 (as set out in the paragraph above).

1. While the evidence was not particularly clear, the Applicant’s complaint concerns the modified Registrar role. Her Form F2 application states:

“1. This is not the outcome of the restructure that I was informed about.

2. I was told my position as a receptionist was not required in the business anymore, therefore making it redundant.
3. I was told receptionist not required hence the position was made redundant. Christ Church Grammar School have now employed a receptionist.
4. I was lied to by the principal days after I was told I was my position was redundant – when asked are you creating a role Registrar/Reception, he told me that was untrue, however I asked HR for the job description and was sent it.
5. The role of Registrar/Reception was not initially advertised, it was immediately offered to the Registrar/PA.”

1. The Applicant also contends that her “consultation process was poorly managed”, and her statement sets out some particulars of that complaint.

1. She also states that she was never offered the modified registrar/reception role, nor offered to go part-time as a receptionist (the latter option being a matter she had put forward as an alternative restructure). She stated that she had the necessary skills to perform that role but was not “considered”. Rather, the role was offered to a colleague (who in turn ultimately declined it).

1. I find that the reasons for delay in the unfair dismissal application being made outside the 21-day period are twofold. Primarily, the reason for delay is that the Applicant decided at the time of her dismissal not to challenge her dismissal as unfair because she was sufficiently satisfied (albeit unhappy) that the loss of her job was due to the foreshadowed restructure, including the creation of the combined or “modified” registrar/reception role that was going to be awarded to another staff member. That state of mind changed upon learning of the “Office Administrator” position in August 2022. A secondary reason for delay is that, despite her view that the consultation process was poorly or unfairly managed, she did not wish to agitate that issue at the time. I note the Applicant’s oral evidence before me that she was not in a good state of mind at the time. Again, this changed following the events in August 2022. I discuss my conclusions about this further below.

When did the Applicant first become aware the dismissal had taken effect?

1. The Applicant’s evidence, which I accept, is that she was aware the dismissal had taken effect substantively from the time that notice was given in February 2022. There is nothing in this factor that tends to a finding of exceptional circumstances regarding the time limit for the Application.

What action was taken by the Applicant to dispute the dismissal?

1. There is no evidence before me that the Applicant took any action to dispute her dismissal prior to making the application on 26 August 2022.

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5] I do not consider this factor provides support for a conclusion that exceptional circumstances exist.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. Neither party made any submission regarding the presence or absence of prejudice to the Respondent. There is no compelling evidence before me that satisfies me there would be any material prejudice to the Respondent if an extension of time were granted. I consider this factor applies neutrally between the parties.

What are the merits of the application?

1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.

1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).

1. Notwithstanding those qualifications, the dismissal was based upon the Respondent’s contention that the Applicant position was redundant. So far as the Applicant contends that her substantive position as a Receptionist was not abolished, the strength of that claim would appear weak. Ms Samaras gave believable evidence that the “Office Administrator” position was a “temporary, casual role” that was “advertised on 27 June 2022 to support the Head of Early Years … in overseeing aspects of the vacant Registrar role and enrolment process …. The casual incumbent was secured on18 July 2022.”

1. Ms Samaras also gives credible evidence that the three substantive positions identified in the letter to the Applicant on 18 January 2022 have all been filled (albeit with a slight change to the title of one) and that the receptionist duties is now “managed by the Registrar with the Executive Assistant, Marketing and Communications Advisor, Finance Officer and School Nurse all having set periods of time at Reception during the week”. Mr Butler gave evidence that the combined registrar/reception role requires that person to undertake registrar duties for approximately fifty percent of the time (with the balance being essentially front-desk reception duties).

1. Section 385(d) of the Act provides that a person will not be unfairly dismissed if the dismissal was a case a “genuine redundancy”. Section 389 sets out circumstances where a dismissal is taken to be a genuine redundancy, as well as an exception where it would be reasonable in all the circumstances to be redeployed. As I understand the Applicant’s case, she contends she ought to have been redeployed in addition to her complaint that her substantive position was never abolished. On the material before me, it appears that her substantive position was abolished.

1. As to the claim regarding redeployment, in the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence, although I consider on the material presently before me that the Respondent’s case appears the stronger of the two.

1. In the circumstances, however, I find that it is not possible to make an assessment of the merits of the application and I treat this factor neutrally between the parties.

Fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. Briefly, 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.[7] Exceptional circumstances may 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 can be considered exceptional.[8]

1. The delay in the present case is extensive - exceeding half a year. The reasons for delay are in large part due to the Applicant’s perception that the Respondent did not make the restructure it told her it was making. However, there is a tension in respect of the Applicant’s complaints about the process being “poorly managed” and the alleged failure to offer her the modified registrar/reception role or to create a part-time reception role. Those latter matters were substantively known to the Applicant at the time of the dismissal and, while I accept her sensitivity about them might have been heightened following what she apprehended in August 2022, it remains the case that she was in a position to have challenged them at the time, or significantly earlier than August, had she chosen to do so. While I accept that the time of the dismissal was particularly stressful for the Applicant, I nonetheless consider that the reasons for delay are a matter that weigh against exceptional circumstances for an extension of time being granted to commence an unfair dismissal claim.

1. The factors of “awareness”, “action to dispute”, “prejudice” and “fairness” are, in my view, largely neutral but none call for a conclusion of exceptional circumstances. While I have, with some hesitation, treated the “merits” of the substantive application as a natural factor, it is not a factor that calls for a conclusion of exceptional circumstances.

1. Taking into account all the matters listed in s.394(3)(a) – (f) into account, I am not satisfied that there are exceptional circumstances.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission for an unfair dismissal remedy is therefore dismissed. An Order[9] to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

B King on her own behalf.
S Butler from the Respondent.

Hearing details:

2022.
Melbourne (by video link via Microsoft Teams):
November 7.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] PR747640.

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