Deborah Jack v Goulburn Ovens Institute of TAFE

[2014] FWC 1462

[2014] FWC 1462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Jack
v
Goulburn Ovens Institute of TAFE
(U2013/14916)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 14 MARCH 2014

Application for relief from unfair dismissal - extension of time, termination of employment.

[1] On 28 November 2013, Ms Deborah Jack made an application for an unfair dismissal remedy with respect to her dismissal by the Goulburn Ovens Institute of TAFE (GOTAFE).

[2] On 23 December 2013 in its “Employer’s Response to Application for Unfair Dismissal Remedy”, the employer objected to the application on the grounds that GOTAFE believed it was a genuine redundancy, that the application was lodged outside the prescribed time limits and that the applicant resigned from the redeployment process.

[3] The parties were directed to file submissions. The matter was listed for an extension of time conference/hearing on 28 February 2014.

[4] In this case the application under s.394 was made a substantial period of time outside the prescribed 21 days from dismissal provided by s.394, whether or not the termination of employment took effect on 16 August 2013 (the employer view), or 30 August 2013 (the applicant’s view), if in fact there was a termination of employment. Section 394 provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[5] The applicant asks that I allow a further period for the application to be made on the basis that there are ‘exceptional circumstances’.

Exceptional Circumstances

[6] In Nulty v. Blue Star Group Pty Ltd 1a Full Bench of this tribunal considered the term ‘exceptional circumstances’ as it is used in s.366. These observations are apposite to s.394, as the provisions are the same or similar in nature:

‘[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11]Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12]The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15]A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.’

(a) Reason for the delay

[7] It is accepted that Ms.Jack was informed on 4 July 2013 that Busy at Work had obtained the government contract to provide the service provided by Ms.Jack 2, that GOTAFE informed Ms.Jack that her position would be surplus to requirements as at 30 August 20133, that Ms.Jack sought redeployment rather than redundancy4.

[8] Ms.Clarke gave evidence that she met with Ms.Jack on 5 August. During the meeting Ms.Jack informed Ms.Clarke that she had been successful in securing a job at Busy At Work, and that her final day of employment would now be 16 August and not 30 August. This was a change requested by Ms.Jack as the commencement date at Busy at Work was 26 August 5.

[9] Ms.Clarke sent Ms.Jack an email summarising the meeting on 6 August. The summary said:

‘I confirm that you will be leaving us to take on the FSO role with the successful tenderer, commencing with them on 26 August. Your final day with us will be 16 August and we will process all appropriate payments accordingly.’

[10] The reference to processing payments is a clear indication that employment would be at an end on 16 August. It is a reference to all payments due to Ms.Jack on the termination of her employment. Ms.Jack was also denied permission to keep her work phone, another indication that employment would actually end. In addition, it suggests that Ms.Jack was resigning, leaving earlier than the employer had anticipated, in order to take up another job.

[11] Ms.Jack replied but did not contradict this summary, as she could have done if it was inaccurate. The email does not record anything about her employment with GOTAFE coexisting for a period with a new job with Busy at Work, as it should have done if Ms.Jack’s version of events is correct. The inference is that it correctly records the understanding that had been reached. The employment relationship ended on 16 August 2013.

[12] GOTAFE wrote to Ms.Jack on 9 August 2013 in a letter headed ‘Confirmation of Termination date’. The heading again confirms that the 16 August date would be the date of ‘termination’ of employment not the date on which she stopped working for GOTAFE while maintaining her employment with GOTAFE until at least 30 August. The letter stated that her ‘final day’ with GOTAFE would be 16 August, and outlined the arrangements for her redundancy payment 6. Again, this is an indication that the date on which employment ended, the ‘termination date’ and ‘final day’, would be 16 August and payments on termination would then be paid. On 13 August GOTAFE sent Ms.Jack the redundancy calculations and stating that these would be paid into her bank account on 22 August7, to similar effect, indicating that employment would be at an end by that date. Such payments would not ordinarily be made unless employment was actually ending. The certificate refers to the start date of employment and the ‘finish date’ of 16 August.

[13] I accept that Ms.Clarke did not receive a resignation from the ASO position sought by Ms.Jack until 15 August after the meeting with Ms.Jack on 5 August 8. The position was not available to redeploy Ms.Jack to it until then, well after the meeting of 5 August. Ms.Jack claims that she was told about a vacant ASO position on 12 August and asked Ms.Clarke if she could have it, but this was rejected9. In addition there may have been a brief period between receipt of the resignation on 15 August and Ms.Jack’s departure on 16 August in which Ms.Clarke could have reconsidered the 5 August arrangement. However, there was no obligation on Ms.Clarke to reconsider the 5 August arrangement and she apparently chose not to. She says that she heard rumours that the position would become vacant but that was all10.

[14] To the extent that it is relevant, there appears to be nothing to prevent an employee resigning to take up another job in place of the redeployment procedure. That procedure does not just continue after a resignation. Clause 16 Surplus to Requirements 11 expressly provides for the parties to modify the procedure by agreement (clause 16.2) in any event.

[15] Ms.Jack accepted in giving evidence that at the 5 August meeting she informed Ms.Clarke that she had accepted another position, that she negotiated a start date prior to Ms.Jack’s nominated termination date of 30 August, that she told Ms.Clarke she would be leaving GOTAFE and starting at Busy to Work on 26 August, and that she was leaving because there was no vacant position into which she could be redeployed 12. She also claimed that her understanding was that the termination date would remain 30 August13.

[16] I had the benefit of observing the witnesses giving evidence and prefer the evidence given by Ms.Clarke to that of Ms.Jack. Further, Ms.Jack’s evidence is not supported by any contemporary evidence. Indeed there is no evidence to support it other than her own testimony. Ms.Clarke’s evidence is consistent with the various references in correspondence to termination date and final day, and arrangements for payment of entitlements.

[17] Ms.Jack’s view of what happened seems on the material before me to be unlikely. There is no sign of the ordinary pay/work bargain continuing after 16 August. Payment of wages appears to have ceased on 16 August 2013, not 30 August 2013. No work appears to have been assigned to Ms.Jack after 16 August, for which payment was made or due. In fact Ms.Jack states that her final day of attendance at GOTAFE was 16 August 14. If Ms.Jack commenced work with Busy at Work on 24 August15 or 26 August16, she would have found it difficult to work for GOTAFE between that period and 30 August, the date when employment supposedly would come to an end, and up to which she could be paid. If the employer agreed to pay her after 16 August for performing no productive work there would be some sign of this, but there is no indication to that effect. It is possible but unlikely for an employee to maintain employment with one employer while trying out another job with another employer, and continue to be paid for it including earning for a period two sets of wages for the two jobs, but nothing was apparently said in the interview to that effect. The new employer would presumably have an expectation of having offered a position and of Ms.Jack accepting that position, and that she was not still awaiting redeployment with her previous employer.

[18] I do not overall accept Ms.Jack’s version of events, which appears to be a reconstruction in the light of later events. In my view Ms.Jack resigned at the meeting on 5 August, and brought the redeployment period to an end. She requested permission to leave on 16 August which was agreed to by the employer. She then became dissatisfied with her new position and sought employment again with GOTAFE, and ultimately initiated these proceedings. Ms.Jack commenced work with Busy at Work on 26 August but left after two days 17.

[19] In the alternative, if there was no resignation and the date of termination was in fact 30 August, or 16 August, in my view there is no satisfactory explanation for the delay in the application after 30 August. If Ms.Jack had a remedy she should have pursued it, and not waited for such an extensive period of time to initiate proceedings.

[20] It is well established that ignorance of the law is not a satisfactory explanation by itself 18. However, the applicant submits that she was positively misled by the employer, was entitled to rely on that misleading advice, and that this is a satisfactory explanation19. In my view there was nothing unusual about the discussions. The employer simply negotiated with Ms.Jack as best it could in order to achieve a resolution. It allowed Ms.Jack to finish early to take up a new job, after Ms.Jack made that request. Ultimately Ms.Jack was responsible for her own position, and her own actions. Nothing takes her case beyond the usual claim that she acted as she did because she was ignorant, or not aware, of the law.

[21] Overall she is in no different position to the many employees who engage in discussions with their employer about such a matter. She was an articulate and vigorous proponent of her interests in this matter, and was in fact in a better position than many to pursue her interests. Ms.Jack actively sought to protect her position. She sought a position of Team Leader at GOTAFE 20, repeatedly sought the ASO position from early on until November 201321, complained to the GOTAFE CEO about the redeployment process in November 201322, and eventually sought advice from a lawyer in November 2013.

[22] In my view, whether Ms.Clarke’s version of events is believed, or Ms.Jack’s, there is no satisfactory explanation for the delay in making an application.

[23] I might add that it is to her credit that she actively sought to mitigate the redundancy by seeking work with Busy at Work. The employer was also perhaps less sophisticated in its termination procedures than it could have been.

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

[24] The applicant first knew of the dismissal, in the view of the applicant, on 30 August. On the applicant’s view she knew she would be terminated on 30 August, when the redeployment period came to an end. However, in my view the applicant was aware that her employment would come to an end on 16 August, and this was a resignation to take up another job, not a termination.

(c) any action taken to dispute the dismissal

[25] In my view the employment came to an end by resignation as Ms.Jack sought to take up a job with the successful tenderer on 16 August. The applicant did not complain to the employer about what she now claims was the dismissal until she lodged an application with the Commission.

(d) prejudice to the employer

[26] It is agreed that there is no prejudice to the employer.

(e) the merits of the application

[27] Both sides were prepared to accept that there was an arguable case in the matter, subject to a fundamental disagreement about whether or not there was a termination. I have found that there was no termination. Putting this aside I am prepared to accept this.

(f) Fairness as between the person and other persons

[28] Neither side put a submission on this issue. In my view this factor is neutral and does not weigh in favour of the applicant or respondent.

Conclusion

[29] The evidence does not support a finding that there were exceptional circumstances for the delay of such a period. I am not satisfied that there are exceptional circumstances within s.394.

[30] I have also found that there was no termination of employment as required for an application to be made.

[31] I dismiss the application. An order is contained in PR548494.

DEPUTY PRESIDENT

Appearances:

Mr P Hull for the applicant

Ms L Sumpter for the respondent

Hearing details:

2014

Melbourne

28 February

 1   [2011] FWAFB 975

 2   Exhibit G1, Attachment 1

 3   Exhibit G1, Attachment 3

 4   Exhibit G1, Attachment 4

 5   Exhibit G1, paragraphs 11-14

 6   Exhibit G1, Attachment 6

 7   Exhibit G1, Attachment 7

 8   PN441

 9   Exhibit J1, paragraph 18

 10   PN443

 11   Exhibit J1

 12   PN366-377

 13   PN378

 14   Exhibit J3, paragraph 16

 15   Exhibit G1, paragraph 14

 16   Exhibit J3, paragraph 16

 17   Exhibit J1, paragraph 19

 18   Small, Print P8772; Rose [2011] FWA 673

 19   Exhibit J2, paragraphs 7-10

 20   Exhibit J3, paragraph 8

 21   Exhibit J3, paragraphs 13-14, 17-18, 20, 22-29

 22   Exhibit J3, paragraphs 30

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<Price code C, PR548253>