Dr Samara McPhedran v Griffith University
[2021] FWC 2337
•10 MAY 2021
| [2021] FWC 2337 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Samara McPhedran
v
Griffith University
(U2020/16021)
DEPUTY PRESIDENT ASBURY | BRISBANE, 10 MAY 2021 |
Application for an unfair dismissal remedy – application filed outside of 21 day statutory timeframe – Commission not satisfied that there were exceptional circumstances taking into account matters in s. 394(3) – Grant of further period refused.
Introduction
[1] This Decision concerns an application by Dr Samara McPhedran (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Griffith University (the Respondent) as a Senior Research Fellow in the Office of the Pro Vice Chancellor (Arts, Education and Law), from 13 February 2012 until her dismissal on 6 July 2020. The Applicant made an unfair dismissal application which was lodged with the Commission on 15 December 2020.
[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). The dismissal took effect on 6 July 2020 and the period of 21 days ended at midnight on 27 July 2020. The application was therefore filed 141 days outside of the 21-day statutory timeframe. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
[3] On 26 February 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why an extension should be granted, having regard to the matters in s.394(2) of the FW Act. The Vice President’s Chambers also requested a completed F3 – Employer Response from the Respondent.
[4] The matter was allocated to me for determination and I issued directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. On 31 March 2021, I conducted a hearing by telephone, in relation whether a further period should be granted to the Applicant to make her unfair dismissal application.
[5] At the hearing, the Applicant gave evidence in support of her application for a further period in which to make her application. The Respondent, represented by Mr Ashton Welch, Senior Manager (Workplace Relations), objected to the further period being granted. At the conclusion of the hearing the Applicant was given a further opportunity to file material she contended was relevant to her application which had been received by her as a result of her Right to Information requests.
Extension of time in which to make application
[6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional matters, or a combination of ordinary matterss which, although individually of no particular significance, when taken together can be considered exceptional.2
[7] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Evidence and submissions
[10] The Applicant’s material was somewhat disjointed and was contained in a number of documents including: Form F2 Application for an unfair dismissal remedy; an emailed response to the Chambers of Vice President Catanzariti in relation to whether a further period in which to make the application should be granted; and material filed in response to Directions issued by me. Essentially the Applicant asserts in her evidence and submissions that she was led by management of the Respondent to believe that the termination of her employment was a genuine redundancy, and later discovered that the termination of her employment was a “dismissal”. In this regard, the explanation provided by the Applicant for the delay is that:
• The Respondent withheld relevant information regarding her dismissal;
• The Respondent gave her misleading advice regarding her dismissal; and
• It was not until the Applicant made further enquiries including with the Office of the Information Commissioner and the ATO, that the Applicant discovered in late November 2020 that she had grounds to make an unfair dismissal application.
[11] The Applicant was employed under a series of contracts commencing in 2014 which are expressed to be for a fixed term. The contract which was in place when the Applicant’s employment ended operated from 7 July 2019 and stated that the completion date was 6 July 2020, which was said to be an indicative date, depending on funding commitments.
[12] In her Form F2 the Applicant stated that she was informed on 12 May 2020 that she had “lost her job” as the Respondent did not have any money left in the account from which her salary was drawn and that her employment would end on 6 July 2020. The decision that the Applicant’s contract would not be renewed was made by the Arts, Education and Law (AEL) Group Staff Resources Committee (SRC) of the University.
[13] The Applicant said that the language used in communications describing her circumstances was unclear and variously the terms “surplus”, “redundant”, “effluxion of time”, “termination”, “non-renewal” and “end of fixed term contract” were used. The Applicant said that while it was factually correct that her contract was not being renewed, she did not take these words as providing reasons for the decision not to renew her contract. In relation to lack of clarity on the part of the Respondent, the Applicant said that she was informed on 1 July 2020 that “you are not a genuine redundancy within the payroll system” and on 5 August was told that her position had become surplus to requirements and her fixed term contract had ended due to effluxion of time.
[14] The Applicant also said that she had conversations with Professor Scott Harrison and Professor Gerry Docherty on 12 May 2020 and 14 May 2020 respectively, where she openly expressed disagreement with the SRC’s decision, stating it was short sighted. The Applicant asked whether consideration could be given to her high performance and the responsibilities she held, and whether there was an appeal process. The Applicant was told by Professor Harrison in response to her questions, that there was no appeals process. The Applicant said that she took the response of Professor Harrison as being authoritative and indicating that the decision of the SRC was final, and there were no pathways to raise concerns or to dispute the decision.
[15] The Applicant said that as Professor Harrison was the most senior staff member within the AEL Group, she understood that any matters arising from an SRC decision would be considered by him in the first instance, and it was apparent that he was not willing to review or reconsider the decision.
[16] The Applicant noted that the University’s Academic Staff Enterprise Agreement allows for the redundancy of a single position for operational reasons, and therefore she believed there was no avenue of formal dispute. Further, she noted that the Agreement contains a dispute resolution procedure at clause 15 which provides that the first step in resolving a dispute should be a discussion with the staff member’s supervisor. The Applicant said that it was made clear in her discussions with her supervisor, Professor Docherty, and with his supervisor, Professor Harrison, that the SRC’s decision was final and that raising a dispute would not change the outcome.
[17] Between May and June 2020, the Applicant corresponded with the Respondent’s Senior Human Resources Advisor, Ms Wolton about various entitlements on termination of her employment including sending an email on 23 May in the following terms:
“Thank you Maria, you’re very patient! One more question (at the request of my accountant) – can you confirm that my situation is one of genuine redundancy, please? My understanding is that my position has been abolished but just wanted to ensure this is accurate.”
[18] The Applicant said that she requested this information to ensure that she had a correct understanding of the reasons why her contract was not being renewed for her record keeping and future financial planning purposes and to confirm that her position was surplus to operational requirements. In response, the Applicant received the following email from Ms Wolton dated 17 June 2020:
“Thank you for your patience whilst I sought advice. I can confirm that your job is no longer required to be performed by anyone due to changes to the University’s operational requirements, and the position has become surplus to requirements and can be considered a genuine redundancy for the purposes of the Fair Work Act 2009 and suggest that you advise your accountant accordingly.”
[19] The Applicant said that she put great weight on this advice as truthful and accurate and at no point was the advice that she was being made genuinely redundant, retracted. Additional emails were filed by the Applicant after the hearing on 31 March 2021 dealing with the taxation treatment of the payments made to the Applicant when her employment ceased. The Applicant sent an email to the Respondent’s payroll staff on 30 June stating that she wanted to ensure their awareness that she was leaving the Respondent on the basis of genuine redundancy so that her lump sum payment could be classified accordingly in the Respondent’s payroll system. The response from the Respondent’s payroll department informed the Applicant that:
“Please note that you are not a genuine redundancy within the payroll system however you are being paid a severance which is an eligible termination payment for the end of contract and as per earlier email you can discuss with accountant re this payment for further impacts.”
[20] The Applicant forwarded this email to Ms Wolton on 1 July requesting that Ms Wolton “fix this” so that it would be clear that “I am a genuine redundancy”. The Applicant went on to state that: “Apparently this affects how my severance is taxed so I would appreciate if the correct categorisation could be applied.” Later on the same date, the Applicant sent a further email stating that if this could not be done in the Respondent’s system she understood and that if this was the case she would need a record for tax purposes. Ms Wolton’s response confirmed that the Applicant’s payment would be made as “severance” in accordance with the end of her fixed term contract and that she should discuss this matter with her accountant for tax purposes. The Applicant’s response on 2 July was to request the contents of Ms Wolton’s 17 June email on letterhead for the purpose of dealing with the Australian Taxation Office. On 29 July the Applicant repeated this request. On 5 August 2020, Ms Wolton responded as follows:
“I have looked into your question and unfortunately, the University does not provide this type of correspondence. As previously communicated I can confirm that the position has become surplus to operational requirements of the University. As you are aware your fixed term contract has ended due to the effluxion of time. As advised by payroll, in accordance with the end of your fixed term contract, applicable severance has been paid to you accordingly. As you have previously indicated, this is something you can discuss directly with your accountant. I trust this finalises the matter.”
[21] The Applicant also states that on 12 May 2020 she requested copies of notes from SRC meetings in which it had been determined that her contract would not be renewed. The Applicant said that she sought this material to understand why her role was not considered critical and how the operational decision not to renew her contract had been reached. The Applicant received some material from Professor Harrison and Professor Forde which she considered “sparse and confusing”.
[22] On 21 June 2020 the Applicant lodged requests with the Respondent under the Right to Information Act seeking further information in relation to the ending of her employment. That information was received by the Applicant on 8 August 2020. The Applicant said that she also considered that this information was deficient and that a substantial amount of material had been withheld. On 26 August 2020, the Applicant made an application to the Office of the Information Commissioner for external review in relation to the release of information and on 26 November 2020 the Respondent was directed to provide the Applicant with other documents which dated to 21 June, the date of the Applicant’s initial Right to Information request.
[23] The Applicant said that the documents she received on 26 November 2020 “strongly suggest that the representation made about redundancy did not truthfully reflect [the Respondent’s] state of mind at the time it was made”. In support of this contention, the Applicant referred to the following emails which were appended to her Form F2 Application. In the period between 7 and 8 May 2020 there was an email exchange between Professor Harrison and Ms Wolton in which Professor Harrison asked in relation to the Applicant whether there were “any concerns with termination, given she exceeds the 5-year limits in the EA?” The response to that email sent by Ms Wolton indicates that the 5 year limits in the relevant enterprise agreement relate to each individual fixed term contract rather than a series of contracts. The next email is from a payroll benefits advisor sent to Ms Wolton on 21 May 2020, asking whether it is “ok to process the expiration of fixed term termination for [the Applicant] now” noting that the Applicant and another employee would immediately receive automated termination checklist emails and it may be a bit early.
[24] The Applicant also referred to an email from Ms Wolton dated 22 May 2020 providing a handover during a period in which Ms Wolton was to be absent from work, which includes the following:
“Samara McPhedran has been advised by Scott Harrison that her contract will be non-renewed in July. Samara has had a few questions regarding entitlements these have been resolved. Samara may reach out with more questions while I’m away, if she does and they are urgent, due to the sensitivities around her non-renewal can you please reach out to Erin if you need any assistance.”
[25] In an email exchange between 19 May and 9 June 2020, Ms Wolton sought advice as to whether pro-rata long service leave was payable to the Applicant under terms of the relevant enterprise agreement. Those provisions were to the effect that when employment ceases due to passing of time (the agreed end date of a current contract) long service leave is payable after seven years continuous service where the employee held a reasonable expectation that employment would continue to at least ten years and was prepared to continue the employment with the employer. In that exchange Ms Wolton also sought advice about the Applicant’s question (at the request of her accountant) as to whether her situation was one of genuine redundancy. In her request for advice as to how to respond to the Applicant’s request, Ms Wolton stated:
“If possible, I wish to confirm the best possible way to respond to [the Applicant’s] enquiry. Is it…severance does not constitute a genuine redundancy but rather severance pay following non-renewal of fixed term contract, as per enterprise agreement. Or is there any risks, I need to be careful of in responding.”
[26] The Applicant also said that the release of these emails caused her to contact the Australian Taxation Office and that she was able to confirm that amounts received on cessation of her employment were taxed as an Eligible Termination Payment rather than on the basis of genuine redundancy. In her Form F2 Application the Applicant asserts that the documents she has obtained demonstrate that a decision had been made to terminate her employment in advance of the SRC meeting and that an earlier request for her to apply for her position was a “cruel farce”. Further the Applicant asserts that she was a high performing employee and a highly productive academic with numerous publishing and editing achievements.
[27] The Applicant also asserts that while her contracts always had end dates, the tasks and responsibilities she performed were identical to those of a permanent employee, including: leading major research projects; applying for and managing competitive grants and consultancies (including as lead investigator); producing academic and other publications and related materials; supervising staff and PhD students; engaging with community and industry partners; performing academic and other scholarly service; and contributing to the overall intellectual and public life of the Respondent. In the light of these matters, the Applicant contends that the renewal of successive contracts had been a mere formality and that she had a reasonable expectation of continuing employment.
[28] In conclusion the Applicant said that until 26 November 2020 she believed that the Respondent had told her the truth about her position being made redundant due to operational reasons based on lack of money to pay her salary. The Applicant also said that the emails she received at the direction of the Office of the Information Commissioner and the information she had been able to obtain from the ATO are highly suggestive that she was given fraudulent advice by the Respondent, that the Respondent was aware that this advice was misleading and that the Applicant was not subject to genuine redundancy. Further, the Applicant said that she did not know she was subject to a “dismissal”, and “not a genuine redundancy”, until 26 November 2020 when she received the information following her Right to Information.
[29] The Applicant’s position is that on the material provided to her on 26 November 2020, the University was acutely aware that it was ‘dismissing’ her and had taken all possible actions to avoid her becoming aware of that. The Applicant said that on that material, she became aware that the advice about redundancy provided to her by the University was misleading and that she had been subject to a ‘dismissal’ on the information provided on 26 November 2020 and therefore, she had lodged her application with the Commission “within 21 days” of that date. The Applicant therefore said she was “not in any way responsible for the delay” in making her application, as when she became aware of her dismissal she acted promptly.
[30] The Applicant contends that the merits of her case weigh strongly in favour of her application going forward. In support of this contention the Applicant states that she was a long-standing and high-performing employee who had a myriad of ongoing tasks and a reasonable expectation of continued employment. The Applicant also contends that the Commission not granting an extension of time would send a message to the Respondent that not only can it knowingly provide misleading advice to employees about the circumstances of job loss, but also avoid being held accountable. Further, the Applicant contends that the Commission not granting an extension would send a message to the Respondent that it is acceptable to use delaying tactics (such as unreasonably withholding personal information until directed to release that by the Office of the Information Commissioner) as a means of extending timeframes beyond the set period, in order to avoid having to appear before the Commission.
[31] The Respondent submits that the Applicant was not dismissed but rather that the Applicant’s employment was subject to a number of short term, fixed term contracts which ceased on 6 July 2020 through the effluxion of time, when her most recent fixed term appointment came to an end. In support of this submission, the Respondent points to the Applicant’s acknowledgement in her Form F2 application and the extension of time responses filed on 3 March and 23 March 2021, that she received notification that her fixed-term contract would not be renewed beyond its expiry date of 6 July 2020. This notice was given to the Applicant on 12 May 2020, in confirmation that the contract would cease at the agreed end date. The Respondent noted this notice was given more than 7 weeks ahead of the expiry of the contract.
[32] The Respondent submits that the circumstances asserted by the Applicant to support her delay in filing are not exceptional, nor do they support her reasoning. The Applicant’s submissions of 23 March 2021 suggest that the delay was caused by her seeking information regarding decision-making processes, despite having been clearly advised by the Pro-Vice Chancellor that a further contract would not be offered and despite ceasing employment on 6 July 2020.
[33] The Respondent also submits that the second delay – between 26 November 2020 and the submission of the application on 15 December 2020 – remains unexplained, with no exceptional reasons put forward as to why action was not taken immediately upon the Applicant’s change in perspective on 26 November 2020. In response to the Applicant’s materials, the Respondent also submitted that the Applicant did not raise any formal concern or dispute prior to her employment ending on 6 July 2020.
[34] In relation to merit, the Respondent submits that the Applicant’s application has limited prospects of success, as she was not “dismissed” within the meaning in s.386 of the Act. The Respondent also submits that the Applicant’s employment did not cease at the initiative of the employer as the contract of employment expired, ceasing due to the effluxion of time. The Applicant was provided with notice that a further contract would not be forthcoming which exceeded the requirements of the enterprise agreement. Further, the Respondent noted that the Applicant’s materials include a copy of both the notice of non-renewal and a copy of the contract of employment, indicating that a dismissal for the purposes of s.386 of the Act has not occurred. For these reasons, the Respondent submits that the merits of the application favour a rejection of an extension of time.
[35] The Respondent also submits that it would be unfair to grant an extension of time compared to other persons in a similar position. In this regard the Respondent contends that it is normal for the University’s fixed-term contracts to cease at an agreed end date, which provides certainty to both the University and to the employee, and the Griffith University Academic Staff Enterprise Agreement 2017 – 2021 requires that the University provide notice where a further contract is unable to be offered. The Respondent submits that it is not exceptional that employees in such a situation may feel that they wish to challenge their separation (rightly or wrongly), which they must do within the 21 days permitted by the Act.
Consideration
Reason for the delay – s. 394(3)(a)
[36] The delay required to be considered in s.394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[37] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.5
[38] The Applicant’s explanation for the delay centres on an apparent misconception about a dismissal on the ground of redundancy and assertions that she was misled by the Respondent in relation to the basis upon which her employment ended which the Applicant could not have known about until receiving information following a direction to the Respondent from the Office of the Information Commissioner. I do not accept that these matters are exceptional circumstances for the following reasons.
[39] Firstly, the Applicant’s contention that a genuine redundancy does not involve dismissal, is erroneous. Dismissal is termination of employment at the initiative of the employer. Termination of employment on the ground of redundancy does involve dismissal. The concept of “genuine redundancy” is a basis for a dismissal being excluded from the unfair dismissal provisions in the FW Act and provides a complete defence for an employer from an unfair dismissal application. The fact that a dismissal is on the grounds of redundancy, or that the redundancy may be “genuine” (in terms of the legislative provisions) does not prevent an application for an unfair dismissal remedy being made. The fact that the Applicant’s understanding of unfair dismissal law was erroneous is not a reasonable explanation for the Applicant’s failure to make her unfair dismissal application within 21 days of the dismissal taking effect. This is particularly so given the Applicant’s capacity to undertake legal research evidenced by her Right to Information application and her application for a review by the office of the Information Commissioner.
[40] Secondly, the material relied on by the Applicant does not establish that the Respondent misled her about the basis upon which her employment ended. The email exchange with Ms Wolton in relation to the ending of the Applicant’s employment being treated as a genuine redundancy was directed at the taxation treatment of the severance payment the Applicant was to receive. It is apparent from the Applicant’s email that she knew that if her position was redundant her severance payment would be taxed at a lower rate and that this was the reason for the clarification she was seeking from Ms Wolton. It is also apparent from the Applicant’s emails that she had been consulting with her accountant about this matter.
[41] I accept that Ms Wolton’s initial response to the Applicant sent by email on 17 June 2020, contained incorrect information, in that Ms Wolton told the Applicant that the circumstances in which her employment ended would be considered as a genuine redundancy for the purposes of the Fair Work Act. However, by 30 June the Applicant had been informed to the contrary – that her severance payment would not be taxed in this manner. I do not accept that the Applicant only discovered this fact on 26 November 2020. It is also the case that he Applicant’s employment ended on 6 July 2020 and there is nothing to suggest that she was not paid her entitlements shortly thereafter. Accordingly, the Applicant should reasonably have noted that the payment she received had not been taxed as a redundancy payment. Furthermore, other than the 17 June email from Ms Wolton, it was made clear to the Applicant prior to the event, that the reason for the ending of her employment was the expiration of her contract period and the decision not to renew it.
[42] The internal emails obtained by the Applicant as part of her RTI request and on 26 November following a review by the Office of the Information Commissioner, do not establish misleading conduct or fraud on the part of the Respondent. Rather, the emails reflect concern at the potential ramifications of not renewing the Applicant’s contract in circumstances where she had over eight years’ service under successive contracts. The emails also indicate that advice was sought about the Applicant’s entitlements in relation to long service leave and the terms of the relevant enterprise agreement in relation to limitations on fixed term contracts. The internal emails do not evidence fraud or misleading conduct by the Respondent or its Managers.
[43] Thirdly, the issues the Applicant relies on to assert that her dismissal was unfair, were all known to her at the point she was informed that her contract would not be renewed. At that point, the Applicant queried the decision not to renew her contract on the basis of her views about her role and position being critical. The matters the Applicant relies on in relation to her contract being one of a series, so that she had been treated as a permanent employee and considered herself as such, were also known to her at the point she was informed her contract would not be renewed.
[44] I accept that there will be cases where an employee is informed that his or her position is redundant, and information emerges at a later date which indicates that the redundancy is not genuine in the sense that the redundancy is a ruse to dismiss the employee. For example, within a relatively short period, a new employee is employed in the same or substantially the same role as was held by the employee who was made redundant. I also accept that such circumstances may be considered exceptional where the conduct of the employer is deceptive and has been engaged in with the intent of disguising a dismissal as a redundancy and where that conduct could not have been identified at the time of the dismissal. I do not accept that the present case is a case of this kind.
[45] Fourthly, even if the Applicant did not become aware until 26 November 2020 of matters critical to her ability to file an unfair dismissal application, the Applicant did not file until 15 December 2020. Other than asserting that the date the application was filed was within 21 days of 26 November 2020, the Applicant has not provided an acceptable explanation for this delay.
[46] Accordingly, I find that there is no reasonable explanation as to why the Applicant did not file her unfair dismissal application within 21 days of her dismissal taking effect. This is a matter which weighs against the grant of a further period.
Whether the person first became aware of the dismissal after it had taken effect – s. 393(3)(b)
[47] The Applicant was aware of her dismissal well in advance of the date it took effect. The Applicant was informed on 12 May 2020 that her contract would not be renewed and that her employment would end on 6 July 2020. Not only did the Applicant have the full 21 day period after the cessation of her employment took effect, she also had an extensive period before her employment ceased. This is at best a neutral matter in the present case.
Action taken to dispute the dismissal – s. 394(3)(c)
[48] While the Applicant raised issue with the non-renewal of her contract at the time she was informed that this was to be the case, there is no evidence that she did so in a manner that would have caused the Respondent to believe that she disputed the dismissal. To the contrary, the major concern expressed by the Applicant appears to relate to the taxation treatment of her severance payment rather than the non-renewal of her contract. On balance, this is a neutral consideration.
Prejudice to the employer – s. 394(3)(d)
[49] There is no evidence that the Respondent will suffer prejudice as a result of the delay in filing the application other than the prejudice associated with having to defend the application. This is the same prejudice as the Respondent would suffer if the application was made within time. It is also the case that the delay is not extensive. On balance this is a neutral consideration.
Merits of the application – s. 394(3)(e)
[50] In the matter of Kornicki v Telstra-Network Technology Group 6 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.” 7
[51] In the present case, the Applicant asserts that she was unfairly dismissed. The Respondent objects to the application asserting that the Applicant was not dismissed on the basis that her contract of employment ended in accordance with its terms when it reached its expiry date and was not renewed.
[52] While the Applicant may be able to defend the jurisdictional objection, it is arguable she was employed under a contract for a specified period of time and that her employment ended by effluxion of time when her contract expired and was not renewed. It is also the case that there are disputed facts which could only be resolved by evidence at a hearing. In these circumstances I have considered the merits of the application as a neutral factor in my determination as to whether the discretion to grant a further period to make the application.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[53] The Respondent submitted that there are other employees in a similar position to that of the Applicant, asserting that it is normal for the University’s fixed-term contracts to cease at an agreed end date consistent with the Griffith University Academic Staff Enterprise Agreement 2017 – 2021 which requires that the University provide notice where a further contract is unable to be offered.
[54] While there is no evidence in relation to the number of employees of the Respondent in similar situations, I accept that this is the case and that if those employees feel that they have been unfairly dismissed they are required to make an unfair dismissal application within 21 days of the dismissal taking effect. This consideration weighs against the grant of a further period, albeit slightly.
[55] If this consideration requires fairness to be considered on a broader scale, then a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case and consistent with Full Bench authority in Nulty v Blue Star Group Pty Ltd.
Conclusion
[56] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow a further period for the application to be made. I decline to grant a further period under s.394(3) of the FW Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on her own behalf.
Mr A Welch for the Respondent.
Hearing details:
31 March.
2021.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR729009>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid
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