Dr Simin Maleknia v University of Sydney

[2014] FWC 7773

[2014] FWC 7773 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2014/7228) was lodged against this decision - refer to Full Bench decision dated 5 February 2015 [[2015] FWCFB 509] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dr Simin Maleknia
v
University of Sydney
(U2014/5331)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from a jurisdictional objection by the University of Sydney (USYD) to an application lodged by Dr Maleknia pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] I heard this application on 30 May and 3 September 2014. Final submissions were received on 3 November 2014.

[3] Dr Maleknia’s application alleged that she commenced work for USYD on 30 January 2012, was notified of the termination of her employment on 13 December 2013 and that her termination of employment took effect on 14 February 2014. If these dates are correct Dr Maleknia’s application was lodged within the statutory time limit of 21 days.

[4] USYD submitted that Dr Maleknia’s employment ceased on 31 December 2013. It therefore objected to the jurisdiction of the Fair Work Commission on the basis that Dr Maleknia’s application was lodged outside the statutory time limit. The correspondence between the parties relied upon by USYD is referred to in its Submissions 1and the witness statement of Professor Hambley.2

[5] For the purposes of this decision I have accepted that Dr Maleknia continued to attend USYD on occasions after 31 December 2013 for purposes connected with her research grant.

[6] Dr Maleknia gave evidence that she was instructed to work, went to work, had no reason not to work and had an obligation to complete the grant which was externally funded. It was approved and therefore she turned up to work. 3

"I was instructed to work. I had approval from - the funding was available, I had project tasks to complete and the school had approved it so far as I knew I had no reason not to go to work------." 4

[7] Dr Maleknia said that the letter from Professor Hambley of 13 December was unclear.

"---The statement is not clear--- is not clear. It didn't say - it should have said that my appointment - my position at the University was ending. It didn't say that." 5

[8] The first issue to be determined by me is the date of cessation of employment. In this respect I have determined the following issues of fact:

- Dr Maleknia was employed pursuant to a fixed term contract which stated that her employment would come to an end on 31 December 2013.

- There is an outstanding controversial issue between the parties involving a possible conflict of interest in Dr Maleknia’s nomination to her post by Professor Downard which arises out of an alleged personal/financial relationship between them.

- No offer of further employment was made to Dr Maleknia by USYD either before or after 31 December 2013 by Professor Hambley, who was the person who had the authority to make such an offer if one had been under consideration, or by any other employee of USYD.

- Professor Downard had no authority to extend Dr Maleknia's contract of employment and he had no authority to approve Dr Maleknia’s continuing to attend work. Professor Downard did not give evidence and I have concluded that it is unlikely that his evidence would have assisted Dr Maleknia.

- USYD was unlikely to approve an extension of Dr Maleknia's employment until the allegations concerning the relationship of Professor Downard and Dr Maleknia were resolved.

- I do not accept Dr Maleknia’s evidence that she believed Professor Downard could authorise an extension of her contract of employment. I am satisfied and find that Dr Maleknia was aware that her employment had ceased on 31 December 2013 and had not been extended.

- The letter from Professor Hambley dated 13 September 2013 was clear. It is set out below:

“Dear Dr Maleknika

As you are aware, your current fixed term contract of employment ends on 31 December 2013.

In accordance with clause 25 of the University of Sydney Enterprise Agreement 2009-2012, I am writing to notify you that the University is not yet in a position to determine whether it will be retaining your position and if you will be offered further employment for a further term.

If the position is retained, the University will make a decision on the manner in which it will filled. (sic) On the latter point, I note that your initial appointment in February 2012 was made on nomination, and consistently with the University’s Recruitment and Selection Policy, it would be appropriate for the position to be filled through a merit selection process.

Given that the question of whether the position is to be filled for a further term is yet to be resolved, the University will be delaying any severance payments due to you. Any severance payment due will be deferred until either four weeks after the expiry of your fixed term, or the University notifies you that no further offer of employment will be made, whichever occurs first.

The University will endeavour to provide notice in relation to the retention of your position as soon as practicable.”

- I have considered the correspondence provided by both parties. I am satisfied that the only available inference to be drawn from that correspondence, and the other documents which I have read, is that the employment relationship between Dr Maleknia and USYD ended on 31 December 2014.

- I am satisfied and find that the end of Dr Maleknia’s employment with USYD on 31 December 2013 was made as clear to Dr Maleknia as it could have been, and that any educated person who read the correspondence and documents would understand that.

- If and when Dr Maleknia attended USYD facilities after the 31 December 2014 she did so without the authority of Professor Hambley or any other person capable of authorising the continuation of her employment.

[9] Dr Maleknia gave evidence that she continued after 31 December 2013 to access and use USYD’s premises and facilities to complete her research. Her evidence in this respect was summarised in a submission prepared by her counsel. It is set out below.

“59. The following factors are evidence of the Applicant’s employment continuing in January 2014 up to 14 February 2014;

a. The applicant was given a direction by her supervisor to work after December 2013.
b. The applicant attended and worked at the Respondent’s premises.
c. The work performed by the Applicant continued on from the work she had performed up to 31 December 2013 (PN689).
d. The Respondent used the work performed by the Applicant in this period (PN688).
e. The Applicant’s work was based on laboratory experiments and computer processing, and did not involve regular daily emails.
f. The Applicant had full access to the buildings in which she worked.
g. The Applicant had full computer access.
h. The Applicant was not paid her annual leave on 31 December 2013. The Applicant’s annual leave was paid on 5 February 2014, (more than a month and 3 pay periods after 31 December 2013).
i. Simon McCoy (McCoy), from HR, was copied in on the 13 December letter. If the Applicant’s employment was to have ended on 31 December 2013, McCoy was aware of that and the evidence from Hambley was that McCoy could have checked that all things that had to be done in relation to the Applicant’s exit were done (PN 965), McCoy failed to do this and has not given evidence in these proceedings. An inference can be drawn that McCoy’s evidence would not have been favourable to the Respondent.
j. The Applicant was seen at work by a number of staff including the Head of School, School’s manager and HR Administrator (see paragraph 20 of Maleknia 4).
k. The staff members who saw the Applicant at work in January and February 2014 did not inform the Applicant that she was no longer employed.
l. The Applicant received the 17 January 2014 letter on her work email address.
m. Hambley admitted under cross-examination that if there was nothing preventing the Applicant from re-appointment, she could have been re-appointed from 1 January 2014 provided Hambley was satisfied that the Applicant had worked that period (PN1010). This is consistent with the Applicant being employed after 31 December 2013.

60. The Applicant submits that the evidence is clear that the Applicant performed work after 31 December 2013. At PN1080, the following exchange occurred in the cross-examination of Hambley:

‘......do you have any doubt that the applicant performed work in January 2014 and work associated with the grant that she was previously working on?---I have no basis for doubt or otherwise.’

61. In re-examination, at PN1112 and PN1113, Hambley, in effect, could not say whether the Applicant did or did not work in January 2014.

62. Accordingly, the only evidence, which has not been contradicted, is the evidence of the Applicant that she worked in January 2014 (PN684, PN686, PN688, PN689).” 6

[10] The failure of the Human Relations Department to cancel Dr Maleknia's access card and computer access, the fact that she was seen on campus by the school's manager and HR administrators and that she might have been seen by any other number of persons in January and February 2014, does not persuade me that Dr Maleknia's employment continued past 31 December 2013. Any number of people could have seen Dr Maleknia. It would not have been their business to enquire and resolve what she might or might not be doing on campus. She could have been emptying her office or attending to any number of tasks consequent upon her cessation of employment. If Professor Hambley had seen her he would not have formed any view about the continuation of her employment because he would not have recognised her.

[11] I do not have to decide this issue but it may well have been the responsibility of Dr Downard to bring an end to this attendance on the campus, since he was aware that her employment had not been continued by USYD despite his request that it do so. Again, Professor Downard was not called to give evidence.

[12] I am satisfied and find that the attendance of Dr Maleknia at USYD was a wilful exercise engaged in by her to bring about a situation which could be interpreted as a continuation of her employment contract. The continuation of an employment relationship cannot be unilaterally imposed by one party on another. By attending the campus without Professor Hambley’s knowledge, Dr Maleknia could not impose an employment relationship on USYD which it had already brought to an end by the proper application of the contractual arrangements between it and Dr Maleknia.

[13] I have not dealt with the allegation of possible bias of Professor Hambley against Dr Maleknia and possibly Professor Downard. I do not consider that the resolution of that issue would have assisted in my determination of the factual matters before me.

[14] I am not persuaded that a possible breach of the relevant enterprise agreement provisions regarding notice affected the effective date of termination of Dr Maleknia's employment.

[15] I am satisfied and find that Dr Maleknia’s employment with USYD ended on 31 December 2013 when her contract expired.

[16] I now have to consider whether or not I should extend the time for lodgement of Dr Maleknia’s application to the actual date of lodgement.

[17] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[18] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[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/Her 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.” [Endnotes not reproduced]

[19] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[20] I have considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[21] I have already found that Dr Maleknia was aware that her employment ceased on 31 December 2013. I do not accept Dr Maleknia’s evidence that she believed that her employment ended on 14 February 2014.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[22] I have already determined that Dr Maleknia was aware of the cessation of her contract of employment with USYD on 31 December 2013.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[23] Dr Maleknia disputed her dismissal by corresponding directly with USYD, by engaging a solicitor to do so and by lodging this application.

prejudice to the employer-s.394(3)(d)

[24] There would be no greater prejudice to the respondent caused by Dr Maleknia’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent is a neutral consideration.

the merits of the application-s.394(3)(e)

[25] Merit was a neutral issue in my consideration of this application.

fairness as between Dr Maleknia and other persons in a similar position-S.394(3)(f)

[26] There is no issue of fairness in relation to any other person in a similar position.

[27] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I dismiss the application.

SENIOR DEPUTY PRESIDENT

 1   Exhibit USYD 1 and Final Submissions dated 3 November 2014

 2   Exhibit USYD 4

 3   Transcript PN389

 4   Transcript PN373

 5   Transcript PN345

 6   Exhibit Maleknia 5 paras 59 - 62

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