Catherine Engelbrecht v Principals Australia Institute T/A Principals Australia Institute Ltd
[2015] FWC 6859
•6 OCTOBER 2015
| [2015] FWC 6859 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Catherine Engelbrecht
v
Principals Australia Institute T/A Principals Australia Institute Ltd
(U2015/10161)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 6 OCTOBER 2015 |
Application for relief from unfair dismissal.
[1] Ms Catherine Engelbrecht alleged that the termination of her employment by Principals Australia Institute on 30 June 2015 was unfair.
[2] Her unfair dismissal application lodged on 20 August 2015 was not made within 21 days of the date of the dismissal.
[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:
[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." [Endnotes not reproduced]
(a) the reason for the delay;
[5] Ms Engelbrecht was employed for nine years by the Institute on a series of fixed term contracts. She attended a meeting held on 15 May 2015, at which staff were advised that due to uncertainty of funding, some people may not be offered new contracts. She received a letter sent on 29 May 2015 which advised her that if she was not offered a new contract her employment would end on 30 June 2015. Ms Engelbrecht was on a period of approved annual leave from at least 16 June 2015 until at least 16 July 2015. She was offered a new position whilst she was out of Australia which she refused. Upon her return to Australia her father had an accident which required hospitalization. He became seriously ill and she was required to provide advocacy and support for him as well as care for two small children and look for work. Consequently Ms Engelbrecht was required to take steps to organize appropriate accommodation and services for when he was discharged. This took up a significant amount of her time and energy. On 28 July 2015, Ms Engelbrecht met with the Deputy Chair of the Institute’s Board to discuss this matter and on 29 July 2015 made inquiries of why she had been offered a contract on lesser terms and conditions. She also completed an exit interview on 14 August 2015. Ms Engelbrecht explained that she didn’t lodge a claim immediately because she didn’t want to go down this path.
[6] Ms Engelbrecht has a reasonable explanation for some of the delay. Her father was seriously ill for much of this time. However Ms Engelbrecht was able to make contact with the Institute by attending a meeting, writing to them and completing an exit interview. While I accept that she did not want to make an unfair dismissal claim, that in itself is not unusual. However I find that, when the whole of the circumstances faced by Ms Engelbrecht are considered, she had a reasonable explanation for the delay.
[7] This weighs in favour of a finding that there are exceptional circumstances.
(b) whether the person first became aware of the dismissal after it had taken effect;
[8] Ms Engelbrecht was aware of the dismissal when it took effect however as she was out of the country until 16 July 2015 and was not able to lodge her application in this time. I consider this criterion to be neutral.
(c) any action taken by the person to dispute the dismissal;
[9] On 29 June 2015 Ms Engelbrecht made her views about the proposed new contract when she advised the Institute that she would not accept the job offer. She did not question the Institute’s right to end her employment under her existing contract. When she requested feedback she again sought reasons why she had not been successful in obtaining a more senior position. I consider this criterion to be neutral.
(d) prejudice to the employer (including prejudice caused by the delay);
[10] There is no evidence of any prejudice to the employer. This weighs in favour of a finding of exceptional circumstances.
(e) the merits of the application;
[11] In making an assessment of the merits of the claim, I make no judgment about the fairness of what occurred.
[12] Ms Engelbrecht has been employed on a series of fixed term contracts since 2006. It was clear that at least one of those contracts was not made before its commencement date. Ms Engelbrecht submitted that the contracts were used as a device but she had accepted them because she was committed to the projects she worked on. It was always her understanding that if funding were available the contracts would be rolled over. She did not accept the new contract because it was a demotion but she expected that there would be some negotiation around her concerns. Instead her employment ended.
[13] The last contract signed by Ms Engelbrecht contained a termination clause which entitled either party to terminate the contract on notice for any reason. The contract also provided that the employment automatically terminated without any obligation on either party to provide notice. Further, it provided that Ms Lewis-Affleck acknowledged that the employment will terminate at the end of the term and she had no expectation of ongoing employment after the term.
[14] In Kumar v Principals Australia Institute2 I found as follows:
[21] On the current state of the evidence, Ms Kumar’s employment ended on 30 June 2015 because her employment contract had expired. There was no basis on which I could conclude that the contracts were used to avoid the Institute’s obligations under the Fair Work Act 2009.3 Ms Kumar’s employment was not terminated on the employer’s initiative. As such, Ms Kumar was not protected from unfair dismissal.
[15] Ms Engelbrecht’s position is similar to Ms Kumar. Her employment ended in the same circumstances. In this case, Ms Engelbrecht has submitted that she has an ongoing employment relationship independent of the contracts she has signed. Such was the finding of the Commission in Smith v Mareeba RSLA Service Club Inc.4 The factual situation in that matter was significantly different to the one before me. However as the case was not fully argued it is not appropriate for me to determine this matter at this time. However on its face Ms Engelbrecht’s claim does not appear to be strong. I consider merits to be a neutral consideration.
(f) fairness as between the person and other persons in a similar position.
[16] No relevant submissions were made on this criterion.
Conclusion
[17] In this matter I have found that Ms Engelbrecht had a reasonable explanation for the delay. While I consider Ms Engelbrecht’s claim that she was dismissed at the initiative of the employer is weak, I consider that when all the circumstances are considered there are exceptional circumstances which warrant granting Ms Engelbrecht an extension of time. There were no submissions as to why if I made such a finding I should not exercise my discretion in Ms Engelbrecht’s favour. I will therefore exercise my discretion to extend the time for Ms Engelbrecht to lodge her application to the date it was lodged. The application will now be referred to conciliation.
DEPUTY PRESIDENT
Appearances:
C. Engelbrecht on her own behalf.
S. Ablett for the Respondent.
Hearing details:
2015.
Melbourne and Perth, by telephone link:
1 October.
1 [2011] FWAFB 975.
2 [2015] FWC 6327.
3 S.386(3).
4 [2013] FWC 351.
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