Brittany Stark v Goodstart Early Learning Limited
[2020] FWC 5136
•30 SEPTEMBER 2020
| [2020] FWC 5136 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for an unfair dismissal remedy
Brittany Stark
v
Goodstart Early Learning Limited
(U2020/11439)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 30 SEPTEMBER 2020 |
Application for an unfair dismissal remedy - extension of time – related investigation by registration authority – applicant in receipt of legal advice - no exceptional circumstances - application dismissed
[1] On 23 August Brittany Stark (Ms Stark or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Goodstart Early Learning Limited (Goodstart, the Respondent or the Employer).
[2] Ms Stark worked from 29 September 2014 until 26 June 2020 at the Respondent’s Mount Gambier Childcare Centre, most recently in the role of teacher. It was uncontested that she was summarily dismissed for alleged serious misconduct on 26 June 2020.
[3] Ms Stark acknowledged that she filed her claim outside the statutory 21-day time limit. She seeks an extension of time. The Employer opposes that course.
[4] I issued Directions on 27 August 2020. On 7 September 2020 the Respondent lodged a formal response opposing the application. On 11 September 2020 I received written materials from Mr Walsh (Bersee Legal) on behalf of Ms Stark including a witness statement by the Applicant.
[5] I heard the matter by telephone on 24 September 2020. Ms Stark was represented by Mr Walsh, with permission. Goodstart were represented by internal human resources officers Ms Black and Ms Shepherd. Ms Stark gave oral evidence. Materials of Goodstart were brought into evidence with agreement between the parties.
[6] Following the hearing I reserved my decision. This decision determines the extension of time issue.
Facts
[7] I will limit recitation of the facts to only those necessary to determine the extension of time issue.
[8] On 25 May 2020 and on her way to work Ms Stark was asked to pull over by South Australian Police (SAPOL) and provide a breath and saliva sample as part of a random road-side drug and alcohol test (RBT). While Ms Stark’s breath alcohol test returned a negative result her saliva test returned a faint positive result. The Applicant was prohibited from driving for 24 hours and her saliva sample was sent to a SAPOL laboratory for confirmatory testing.
[9] After submitting to the above testing, Ms Stark proceeded to attend for work at the Mount Gambier Goodstart Childcare Centre.
[10] When Ms Stark arrived at work, she spoke to the Centre Director. The conversation included the Director asking Ms Stark about the test and the test results. Ms Stark did not disclose the faint positive result.
[11] On 12 June 2020 the Education and Early Childhood Services Registration and Standards Board of South Australia (ESB) contacted the Employer and informed them of a confirmatory positive result, the ESB having been notified by SAPOL. Ms Stark was suspended from work duties via a video call later that day.
[12] On 24 June 2020 Ms Stark was invited to attend a meeting with the Employer. She attended with her mother and submitted a letter of same date prepared by her lawyer.
[13] The letter from Ms Stark’s lawyer emphasised that Ms Stark was not intoxicated; that she was pulled over for a random test, not as a result of suspicious driving; that the offence is ‘driving with a prescribed drug in oral fluid’, not driving ‘under the influence’ of drugs; and that certain substances can be detected in saliva up to five days after consumption.
[14] At the meeting Ms Stark admitted to telling the Centre Director she had returned negative results to the saliva and breath tests, despite being made aware of the indicative positive saliva test and being temporarily prohibited from driving. Ms Stark submitted to the Employer that she was under the impression the test was not considered positive until confirmed positive by the laboratory testing. She therefore concluded that she should not describe it as positive to her employer.
[15] Ms Stark acknowledged her responsibility to attend for work free from the influence of drugs or alcohol. She acknowledged that offences may impact her teaching registration.
[16] On 26 June 2020 the Employer telephoned Ms Stark and informed that the outcome of their investigation was that they had decided to terminate her employment. Ms Stark asked if there was anything she could do to change the termination. She was told the decision was final, so she “left it there”. 1
[17] Later that same day (26 June 2020) the Employer sent a letter to the Applicant by email elaborating on the reasons for the termination as follows:
“• On 25 May 2020, at approximately 8:30am you returned a positive test during a road-side drug and alcohol test. You proceeded to attend work to provide care and education to children whilst knowing that you had tested positive….Your actions posed a risk to the health and safety of the children.
• On 25 May 2020, at approximately 9:30am during a discussion with your Centre Director you failed to inform her that you had returned a positive test during the road-side drug and alcohol testing and when asked what the result was you said “negative”.” (redaction added) 2
[18] The Applicant contacted her lawyer and forwarded a copy of the termination letter to them. At the hearing, Ms Stark said that she “thought that it (the termination) was unfair” but at that stage it was just her opinion “rather than knowing (she) was legally correct.” 3 Ms Stark says, that her lawyer did not make her aware of the statutory 21-day time limit to file.
[19] On 14 July 2020 Ms Stark was invited to attend an interview with the ESB regarding their investigation. Attendance was voluntary. On that basis Ms Stark declined to attend.
[20] On 11 August 2020 the ESB contacted Ms Stark by letter to advise that they had finalised their investigation. Relevantly, the letter provided that the ESB had decided not to take further action against Ms Stark as, whilst not disputing the confirmatory test result, they were unable to conclude that she was under the influence whilst performing duties as a teacher.
[21] Ms Stark immediately forwarded a copy of the 11 August 2020 letter to her lawyer.
[22] Ms Stark then accessed the Fair Work Commission’s website. Her evidence was that she then became aware of the 21-day time limit when doing so. She stated that she understood she was already outside this limit. 4
[23] Ms Stark was able to book an appointment to see her lawyer roughly a week later, being around 18 August 2020. She lodged her unfair dismissal application on 23 August 2020 under her own name and named her lawyer as her representative.
Submissions
[24] At the hearing Ms Stark submitted that she was “waiting on the outcome of the Education Standards Board” before being able to conclude that she “was unlawfully terminated”. 5
[25] Mr Walsh, the Applicant’s representative, succinctly put Ms Stark’s submission for granting an extension of time as resting “solely on waiting on the outcome of the investigation by the Education Standards Board”. He submitted that until receiving “vindication” from the ESB the Applicant could not pursue an unfair dismissal claim. 6 Mr Walsh submitted that this presents a “reasonable, more than reasonable” reason for the delay.7
[26] Ms Black submitted for the Respondent that the process, procedures and findings of the ESB are separate and unrelated to the process, procedures and findings of Goodstart. It follows that Goodstart have the right to conduct its own assessment into Ms Stark’s employment and alleged misconduct and have a right to act on their findings independent of any conclusion of the ESB.
[27] Ms Black further submitted that whether Ms Stark is able to maintain her teaching registration is a question for the ESB whereas whether Goodstart choose to terminate Ms Stark’s employment was a separate question that must be answered by Goodstart themselves.
[28] It follows, according to the Respondent, that Ms Stark was able to lodge her claim within the 21-day time limit and did not need to wait on the ESB. Ms Stark’s assumption that she had to wait on the findings of the ESB was erroneous, of her own doing, and not exceptional.
Consideration
[29] Section 394(3) of the FW act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[30] Ms Stark’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[31] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.8
[32] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.9 A decision whether to extend time under section 394(3) involves the exercise of a discretion.10
[33] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”11
[34] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.12
[35] I now consider each of the factors set out in section 394(3).
Reason for the delay (section 394(3)(a))
[36] The reason for the delay in lodging an application is a factor that must be considered. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.13
[37] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.14
[38] The period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.15
[39] The 21-day statutory period after Ms Stark’s dismissal expired on 17 July 2020. Having filed her application on 23 August 2020, it is thirty-seven (37) days out of time.
[40] As illustrated by the Applicant’s letter to her Employer at the disciplinary meeting of 24 June 2020, Ms Stark was mostly concerned to dispute whether she had attended at work under the influence. However, the allegations, and indeed, the reasons relied on by the Employer to terminate Ms Stark were two pronged: that Ms Stark had returned a positive saliva test before attending for work and that she was not fully truthful when discussing the test result with her Centre Director.
[41] There are two periods of delay.
[42] The first is the period between the dismissal and the ESB’s letter of 11 August 2020. This is a period of forty-six days, of which twenty-five are days when the application was out of time.
[43] Ms Stark says that she did not file an unfair dismissal application within this time because she was waiting on the outcome of the investigation by the ESB.
[44] This explanation is unconvincing.
[45] Firstly, the matter to be determined in her unfair dismissal proceedings is not the same as the matter determined by the ESB. The ESB was not ruling on the fairness of Ms Stark’s dismissal. It had no jurisdiction to do so. It was considering a different question: whether Ms Stark presented, at the relevant time, an unacceptable risk of harm to a child. Its powers related solely to the registration of teachers. At its highest, the ESB could prospectively rescind registration, but no more. This could have impacted Ms Stark’s future employment but not retrospectively. Whilst an ESB ruling would be relevant to remedy (should an unfair dismissal claim be successful) it would not and could not assess the fairness of an employer’s decision made more than a month prior.
[46] Secondly, the factual issues relevant to an unfair dismissal claim and the ESB investigation are not identical. Whilst the factual matrix considerably overlaps the employer determined that dismissal was warranted by reference to both the roadside (and confirmatory) test and that Ms Stark had not been fully truthful to the Centre Director. The ESB correspondence makes no reference to representations between Ms Stark and her employer or her contractual duties in that regard.
[47] Thirdly, Ms Stark’s evidence was that she felt her dismissal was unfair when notified on 26 June 2020.
[48] Fourthly, Ms Stark had the assistance of a lawyer even before being dismissed and was competent to instruct her lawyer to commence proceedings as soon as she was dismissed. She also was capable of accessing the Commission’s website and lodging an application in her own right. 16
[49] Fifthly, there is no impediment to an employee filing an unfair dismissal claim within time and then seeking permission to amend their application to supplement additional grounds or evidence based on the outcome of a separate investigation. It is also open to an applicant to seek the Commission’s permission to have their claim adjourned until such time as a relevant external investigation is concluded.
[50] The second period of delay is between receipt of the ESB’s letter on 11 August 2020 and the date of filing. This is a period of twelve days, all of which are days when the application was out of time.
[51] In this period Ms Stark contacted her lawyer, herself researched the Commission web site and found out about the process for filing an unfair dismissal application and the 21-day statutory time limit, made an appointment to see her lawyer and met her lawyer.
[52] Whilst Ms Stark was active in this period, the period resulted in further delay and the reasons for delay are not convincing.
[53] To the extent Ms Stark was waiting to be ‘vindicated’ by the ESB before filing a claim, she learned of the ESB view on 11 August 2020. The unfair dismissal claim could have been immediately lodged. Instead, it took a week to see her lawyer and another five days to file the claim during which Ms Stark became aware that she was out of time. The requisite urgency required of an employee who knows they are out of time to file their application without further delay was lacking.
[54] The reasons for delay are unconvincing. This factor weighs against granting an extension of time.
Awareness of the dismissal taking effect (section 394(3)(b))
[55] Ms Stark was notified of her dismissal by telephone and in writing on 26 June 2020. She was aware of her dismissal from the date it took effect. She was under no misunderstanding in that respect.
[56] This weighs against granting an extension of time.
Action taken to dispute dismissal (section 394(3)(c))
[57] Ms Stark’s evidence was that when she received the Employer’s telephone call on 26 June 2020 she asked whether there was anything she could do to dispute her termination. The Employer replied that there was not, their decision was final. Ms Stark then spoke to her lawyer who had already been engaged and had already made representations on her behalf to the Employer.
[58] There is nothing before me to suggest Ms Stark directly or through her lawyer took any other action to dispute the dismissal in the days that followed the dismissal. Their collective assessment was that awaiting the ESB outcome was the appropriate course.
[59] This being a passive response, it weighs against the grant of an extension of time.
Prejudice to the employer (section 394(3)(d))
[60] The Employer would be subject to the usual time, cost and inconvenience in defending Ms Stark’s application if it were to proceed.
[61] The Employer also points to the fact that it may be prejudiced by the fact the Centre has since replaced Ms Stark with another teacher.
[62] It is not unusual that an Employer replaces a dismissed employee. Should an application be successful and reinstatement ordered, some prejudice may follow. However, in this matter Ms Stark is not seeking reinstatement. Further, the circumstances relating to her position being filled are capable of being raised by the Employer at the hearing as relevant to remedy.
[63] I do not consider there to be any particular prejudice to the Employer should an extension be granted. However, the absence of prejudice is not itself a reason to grant an extension.17
[64] This is a neutral consideration in this matter.
Merits (section 394(3)(e))
[65] The merits are likely to concern issues of valid reason, as well as issues of procedural fairness. The valid reason issue is, as noted, likely to concern the results of the test conducted by SAPOL as well as the representations made by Ms Stark to her employer and her contractual obligations related to both considerations.
[66] These are matters of evidence on which it would be inappropriate to form even a provisional view given that evidence of alleged serious misconduct requires testing against the appropriate standard of proof.
[67] This is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[68] This factor does not arise in this matter.
Conclusion
[69] No factor weighs in favour of Ms Stark. Multiple factors weigh against granting an extension of time.
[70] In the context of a 21-day statutory time limit the period of delay is considerable (37 days). The explanations for both periods are unconvincing individually and as a whole. Essentially, Ms Stark waited until the outcome of the ESB investigation was known as she believed that a favourable outcome from the ESB would create a fertile basis on which to prosecute an unfair dismissal claim.
[71] For the aforementioned reasons this approach was misguided irrespective of the ESB conclusion.
[72] It is also wrong in principle. There is nothing exceptional about the circumstance in which Ms Stark found herself. Like Ms Stark, many employees hold licences or registration to work in a trade or profession and are subject to those licences or registrations being reviewed or reviewable based on events overlapping with decisions by their employer to dismiss. The statutory time limit to pursue unfair dismissal claims would be intolerably undermined should employees be able to wait for an indeterminate period for a third party registration authority to rule on their status to hold future registration before filing unfair dismissal claims.
[73] There are no exceptional circumstances in this matter.
[74] That being so, it is not permissible to extend the time for lodgement. As the time for lodgement is has not been extended, Ms Stark’s application is out of time and must be dismissed.
[75] An order 18 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr D Walsh (Bersee Legal), with permission, for Ms Stark
Ms M Black and Ms K Shepherd, for Goodstart Early Learning Limited
Hearing details:
2020,
Adelaide (by telephone),
24 September.
Printed by authority of the Commonwealth Government Printer
<PR723049>
1 Audio 7 August 2020 at 00:32:14
2 R1 Letter from Goodstart to Ms Stark Re: Termination of Employment, Serious Misconduct 26 June 2020
3 Audio 7 August 2020 at 00:27:00
4 Ibid 00:28:10
5 Ibid 00:26:00
6 Ibid 00:36:00
7 Ibid
8 Smith v Canning Division of General Practice[2009] AIRC 959
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
11 [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
12 [2019] FWCFB 2384 at [16] – [20]
13 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]
14 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
15 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
16 Audio 7 August 2020 00:31:00
17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
18 PR723050
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