Bernadette Norton v Australian Guild of Music Education
[2021] FWC 3931
| [2021] FWC 3931 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Bernadette Norton
v
Australian Guild of Music Education
(C2021/1693)
| Deputy President Lake | BRISBANE, 6 JULY 2021 |
Application to deal with contravention involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
On 25 March 2021, Bernadette Norton (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of her employment by Australian Guild of Music Education (the Respondent).
The Applicant had worked for the Respondent since around November 1999 and became its Chief Executive Office in 2001.
It is common ground between the parties that the application was made out of time. However, to resolve this matter, I must still consider two questions. First, when did the Applicant’s engagement with the Respondent end? Second, did the Applicant file her application within time and, if she did not, are there are exceptional circumstances that warrant an extension of time?
Factual background
The Applicant states there is a complex factual matrix sitting behind this application. The Respondent is run by a committee and, in September 2019, Jeff Wood, the President of the Committee, resigned. His resignation was accepted by the Committee.
On 14 October 2019, Mr Wood purported to terminate the Applicant’s employment. The Applicant claims he did so improperly and without authority. The Respondent claims that Mr Wood acted with the authority of the Committee at all times.
Proceedings between the Applicant and Respondent were commenced in the Supreme Court of Victoria in December 2019 in relation to control of the Respondent. The parties agreed to consent orders appointing receivers to the Respondent to create a member register, call an annual general meeting and elect a committee of management. On 23 March 2020, the members elected a committee of management. The Applicant was not elected to any committee positions. The remaining issues before the Supreme Court proceedings were unconnected with the Applicant’s employment or entitlements.
On 20 March 2020, the Applicant filed a general protections application not involving dismissal against the Respondent for her unpaid entitlements. On 8 April 2020, that matter went before Commissioner Bisset for conciliation, but did not resolve.
The Supreme Court ordered that mediation be attempted for the remaining matters which assisted in resolving some issues in dispute between the parties. The most recent mediation attempt concluded on 4 March 2021. On 25 March 2021, the Applicant filed a further general protections application involving dismissal, which is the subject of the present decision.
Date of the dismissal
Applicant’s submissions
The Applicant submitted that she had been dismissed on 28 August 2020 or alternatively 23 March 2020. She states that while she never willingly resigned from her employment and has consistently disputed the authority of Mr Jeff Wood to terminate her employment from September 2019 to 23 March 2020, it is clear that her employment is now at an end. The Applicant claims that the termination was brought about when she was forced to accept the Respondent’s repudiatory conduct. Accordingly, in these circumstances, the Applicant submits could only be regarded as having been dismissed from her employment.
The Applicant refutes the Respondent’s submission that she was dismissed on 14 October 2019 on the basis that Mr Wood had no authority, pursuant to the Model Rules for an Incorporated Association (which was applicable to the Respondent) to dismiss her and that it was acknowledged by the Respondent’s receivers on 18 March 2020 that prior to their appointment on 21 February 2021, the Applicant had been the Respondent’s CEO. Accordingly, the Applicant submits that she remained employed by the Respondent as at 23 March 2020.
The Applicant accepts that following the Respondent’s Annual General Meeting on 23 March 2020, she was no longer the secretary, treasurer or committee member of the Respondent. Notwithstanding that statement, she also submits, that because of the Respondent’s inaction – that is, there was no formal communication of her position being terminated – the Applicant continued to be the CEO of the Respondent on 14 May 2020. That position was refuted by the Respondent’s lawyer on the same day. The Applicant states that she continued to perform unpaid duties for the Respondent until August 2020, including liaising with PKY Media RTO and handling student complaints. However, the Applicant confirms that she has not performed any significant duties for the Respondent since 28 August 2020.
The Applicant’s submissions describe the legal test for repudiation by the employer being whether a reasonable person in the circumstances the Applicant would consider that the Respondent had indicated they were not prepared to be bound by the terms of the contract. She alleges that the inaction of the new committee to restore her wages and duties, and to exclude her from management and decision-making at the Respondent amount to termination at the initiative of the employer. The Applicant states that a repudiation of the contract does not bring the contract to an automatic end but gives the Applicant the right to terminate the contract. In her submissions, the Applicant stated that she did so on 28 August 2020, when she registered for an Australian Business Number in the name of Allegro Music Courses. That is, “by virtue of her actions of commencing a new business on 28 August 2020… she brought the employment relationship to an end.”
Alternatively, the Applicant submits that she was forced to resign by the Respondent and that resignation would amount to a dismissal within the meaning of s.386(1)(b) of the Act. Ms Norton continues to rely on the prohibited reasons outlined in her general protections involving dismissal application filed on 25 March 2021.
In the submissions filed on 8 June, the Applicant asserts that she was dismissed on either 23 March 2020 or 28 August 2020.
Respondent’s submissions
The Respondent’s submissions provide a chronology of the Applicant’s dismissal and an outline of the composition of the Respondent’s Committee of Management. In short, the Respondent states that the Applicant was dismissed on 14 October 2019, following a show cause process, when the Respondent wrote to the Applicant stating that it was terminating her employment on the grounds of serious misconduct involving financial fraud. That letter, which was signed by Mr Wood, was accompanied by four signed letters of the Respondent’s committee of management being Matthew Field, Flenn Carter Varney, Jan Skinner and Leonie Wobking.
On 23 October 2019, a further letter was sent by the Respondent to the Applicant, confirming that her employment had been terminated and that termination had been ratified by the committee of management at a committee meeting held that day. This was recorded in the meeting minutes.
The Applicant lodged a General Protection Application not involving dismissal on 20 March 2020. The Respondent noted in its F8A response to the General Protection Application not involving dismissal dated 6 April 2020, at paragraph 4.1 that the Applicant had been dismissed in October 2019. The Respondent has been consistent in its response that the Applicant was dismissed in October 2019 and that she has taken no action to challenge the dismissal until the current application.
The Respondent has indicated that the final payment of the Applicant’s ordinary salary was made on 21 October 2019. As at October 2019, her annual leave entitlement was 47.35 hours. A payment for annual leave was made to her on 10 February 2021. The Respondent’s representatives indicated that they were instructed that this late payment was due to an oversight that was corrected when it was noticed in February 2021.
In relation to long service leave, the Respondent submits that during the Applicant’s employment, no records of long service were kept and no provisions for long service leave were made in the financial accounts. The Respondent notes that it was the Applicant’s responsibility as Treasurer, Secretary and CEO to maintain such records but she did not. However, the Respondent instructs that during 2017, the Applicant took full time paid leave for a period of three months and further paid leave on a part time basis for several months. This leave exceeded the Applicant’s personal and annual leave entitlements but was recognised by the Respondent as long service leave. Even so, the Respondent says it exceeded the Applicant’s statutory entitlement to long service leave. The Applicant’s long service leave balance at 14 October 2019 was therefore zero.
The Respondent also submits that no details disclosed by the Applicant regarding the confidential mediation between the parties should be taken into account in the making of my decision. I agree.
Consideration
Section 366(1) of the Act requires that an application under s. 365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s. 366(2) of the Act.
The Respondent submits that the Applicant was dismissed on 14 October 2019. That is consistent with the paying out of her ordinary salary on 21 October 2019. The failure to pay her annual leave accrual has been described as an oversight and I note that the Applicant has not sought to suggest that annual leave continued to accrue after that time. Those factors support the assertion that the Applicant was terminated in October 2019. That said, I am also cognisant of the Applicant’s submissions that Mr Wood was not empowered to terminate her employment when he purported to do so. She relies on this conduct despite the support of the committee, evidenced by their letters and the subsequent meeting minutes. On that basis, the Applicant asserts that she was dismissed on either 23 March 2020 or 28 August 2020. It is unnecessary for me to conclude which of these days was the true date of dismissal for present purposes. Suffice to say that taking the Applicant’s case at its highest – that is, that the dismissal took effect on 28 August 2020 – the application was still made some 208 days late.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.
Consideration of whether a further period should be granted
As noted above, s. 366 of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; 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 test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia considered the meaning of ‘exceptional circumstances’, concluding:
“[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.”
For the Applicant, the general protection application to proceed, it is necessary for the Applicant to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the those matters.
I heard both parties in respect of whether exceptional circumstances exist in this case.
The Applicant’s submissions may be summarised as follows:
(a)The Applicant states she has not been complacent in pursuing her rights. Rather, her employment rights and entitlements were intertwined with larger issues involving the Respondent. Had she been successful in the Supreme Court proceedings, the result may have been a finding that her employment was continuing, thus rendering the making of this application unnecessary (although this was abandoned with the acknowledgment in her submissions that by August her employment has ended);
(b)It would have been unfair to the Respondent for the Applicant to file an application in the Commission, while there was a possibility that the issues regarding her employment entitlements would be included in settlement discussions in the Supreme Court mediation process;
(c)The Applicant filed the application within 21 days of the conclusion of the attempts at mediation in the Supreme Court proceedings;
(d)The Applicant has consistently disputed the dismissal that purportedly occurred on 14 October 2019 or on 23 October 2019 respectively;
(e)There would be little to no prejudice to the Respondent if the extension of time is allowed. That is particularly given the Respondent has been aware since at least March 2020 that the Applicant disputed her purported dismissal and her entitlements. By contrast, if the extension of time is not granted, the Applicant could suffer great loss;
(f)The Applicant claims that any prejudice to the Respondent is likely the result of their failure to provide a separation certificate to the Applicant or pay to her annual leave, long service leave, superannuation and her notice period;
(g)There are merits to the application. In particular, the Applicant should have the opportunity be heard in respect of Mr Wood’s lack of authority when purporting to terminate her employment, and be given an opportunity to recover the employment entitlements she claims not to have been paid, namely long service leave, annual leave and superannuation; and
(h)Finally, it is fair and equitable that the Applicant be allowed to seek her employment entitlements following unsuccessful attempts to resolve her issues during the Supreme Court proceedings.
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:
(a)The Applicant has not evidenced any exceptional circumstances explaining the delay;
(b)The Applicant’s reliance on the existence of proceedings in the Supreme Court to justify the delay in bringing the Application before the Commission is misplaced given that her claims for employee entitlements are unrelated to those proceedings;
(c)The Applicant’s first general protections application was filed on 25 March 2020, whilst the Supreme Court proceedings were ongoing. That action by the Applicant indicates that the existence of Supreme Court proceedings were, in fact, no barrier in her mind to issuing proceedings in the Commission;
(d)While the Applicant disputed her dismissal in October 2019, the Respondent submits that she accepted her dismissal following the appointment of the new committee on 23 March 2020 and no further action has been taken in respect of that issue since;
(e)The Applicant had the benefit of legal advice from around October 2019 and could have taken action to preserve her purported rights in the Commission at an earlier time;
(f)Given the extensive delay, the Respondent would be prejudiced if required to defend such a late application; and
(g)The merits of the Applicant’s application are weak.
Consideration
Section 366(2)(a) – The reason for the delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The Applicant’s case for an extension rests principally upon the argument that by pursuing a Supreme Court action, that was unsuccessful, as it did not provide her relief on the employment matters, that she then had to lodge a second General Protections application. I reject this as a reason for the delay. She could lodge this application, as she had done for the first General Protections matter, within the 21 days of her employment ending. The dispute in the Supreme Court is not an exceptional circumstance particularly in the circumstances of an organisation with troubled finances and management issues. Furthermore, the Applicant was not navigating her opportunities for recourse without assistance. She had the benefit of legal advice throughout the period of her employment ending. I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Section 366(2)(b) - Action taken to dispute the dismissal
The Applicant disputed several aspects of the dismissal itself. She took legal advice early in the process, however once the new committee was put in place by the receivers on 23 March 2020, she no longer pressed the matter of her being dismissed.
I appreciate that the Applicant was hoping to resolve the matter through a settlement in the Supreme Court proceedings, however there was no evidence put that the Court action could have provided compensation for entitlements that she believed she was owed. This rationale does not justify the delay or indicate the existence of exceptional circumstances. That is particularly so in circumstances where she had already once lodged a general protections application in the Commission whilst the Supreme Court proceedings were on foot.
Section 366(2)(c) - Prejudice to the employer
The Respondent stated that given the long delay in bringing on the application that they would be prejudiced having to defend a claim made regarding a dismissal that on its best view was over six months prior. Given the small size of the organisation and that all the characters of the events stretching back to October 2019 are still available if the case were to go ahead, I consider this factor to be neutral.
Section 366(2)(d) - Merits of the Application
In Kornicki v Telstra-Network Technology Group,[7] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[8]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. The facts as presented do not look to provide a strong basis for a successful application and I regard the matter as only having a slim possibility of success.
Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[9]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that there are no exceptional circumstances that would permit the granting of an extension.
Pursuant to section 366(2) of the Act, the extension of time is refused. Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
<PR731396>
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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