Eleanor Macpherson v The Perth Diocesan Trustees T/A Anglican Church Diocese of Perth

[2015] FWC 3573

[2015] FWC 3573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eleanor Macpherson
v
The Perth Diocesan Trustees T/A Anglican Church Diocese of Perth
(U2015/3941)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 MAY 2015

Application for relief from unfair dismissal.

[1] Mrs Eleanor Macpherson alleged that the termination of her employment by The Perth Diocesan Trustees (the Trustees) on 2 December 2014 was unfair.

[2] Mrs Macpherson’s unfair dismissal application lodged on 13 March 2015 was not made within 21 days of the date of the dismissal.

[3] I refused permission for the Trustees to be represented by a lawyer. In its submissions, the Trustees submitted it could not effectively represent itself and that there was complexity arising from the question of whether there was a genuine redundancy. I do not accept that this extension of time application involved any complexity. I do not accept that the Trustees are not able to represent itself effectively. A mere lack of industrial relations experience or human resources expertise is not sufficient to justify the granting of permission.

[4] 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.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where 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;

[6] Mrs Macpherson sought legal advice about making an unfair dismissal application. She was told that there was both a State and Federal system. She knew the issue was whether her employer was a constitutional corporation. Mrs Macpherson thought that she was employed by the Anglican Church of Australia - Diocese of Perth. She knew that the Trustees paid her wages but she did not understand that they were her employer.

[7] Mrs Macpherson exhibited her contract of employment which clearly stated that her employer was the Trustees. She relied upon its reference to the SACS Award as indicating she was employed under the state Social and Community Services Award. She said that after the making of the new federal awards in 2010, the Trustees did not advise her of the relevant Federal Award.

[8] Mr Dixon gave evidence that the Trustees is incorporated under the Anglican Church of Australia (Diocesan Trustees) Act 1888 (WA). It was his evidence that the Trustees own and manage various commercial and residential properties in Perth for the purpose of producing income which is then used for the purposes of the Anglican Church Diocese of Perth. It was his evidence that the commercial nature of the Trustees was well known in the Diocese through regular communications of its activities through publications and reports. 2

[9] It submitted that there was no confusion about who employed Mrs Macpherson. Her application to the Western Australian Industrial Relations Commission (WAIRC) named the Trustees as her employer. It submitted that Mrs Macpherson in that application described the business of the Trustees as “governance relating to property and assets on behalf of the Perth Diocese of the Anglican Church.”

[10] Mrs Macpherson gave evidence that she initially attempted to resolve her dispute internally. She sent a letter to the Trustees seeking conciliation. She met with the Archbishop and the Chair of the Anglican Children and Youth Ministries Commission. She sent a further letter to the Trustees.

[11] As the matter was not resolved, Mrs Macpherson lodged an application in the WAIRC on 27 December 2014. By this time, she was already beyond the 21 days provided for in the Fair Work Act 2009 to lodge her application.

[12] On 28 January 2015, the Trustees advised Mrs Macpherson that it was a national system employer and the claim should have been lodged in the federal jurisdiction.

[13] The parties attended a conciliation conducted by the WAIRC on 10 February 2015. The matter was adjourned for 28 days to give the parties time to see if the matter could be resolved and for Mrs Macpherson to obtain legal advice. Mrs Macpherson sought legal advice from a variety of sources and was advised that the question of whether she was covered by the Federal System was complex.

[14] On 24 February 2015, she wrote to the Trustees lawyers asking them to explain why they said they were a national system employer. Further, she asked if the Trustees would have an objection on the basis of jurisdiction if she were to lodge a claim in the Federal jurisdiction. In its reply, the Trustees lawyers stated that they had already explained the basis of its jurisdictional objection to Mrs Macpherson at the conciliation. It advised her that if she lodged an application in the Federal jurisdiction, it would use any defenses available to it.

[15] Mrs Macpherson received legal advice on 5 March 2015 that she had two options; namely, to continue with the application in the WAIRC or to withdraw that application and lodge in the Commission.

[16] Mrs Macpherson said she waited the full 28 days given by the WAIRC in the hope that she would receive some remedy.

[17] On 11 March 2015, Mrs Macpherson advised the WAIRC that there had been no resolution and she was going to lodge her application in the Fair Work Commission. On 13 March 2015, she withdrew her application in the WAIRC and lodged her application with the Commission.

[18] Mrs Macpherson relied on her lack of knowledge of the jurisdiction and the difficulty in determining if her employer was a national system employer to explain her delay.

[19] I accept that determining whether an employer in WA is a national system employer is not a simple exercise. Mrs Macpherson knew this was potentially an issue when she obtained her original legal advice. I am prepared to accept that Mrs Macpherson had a reasonable explanation for her original delay. However, from 28 January 2015 Mrs Macpherson was on notice that the Trustees objected to her application in the WAIRC because it was a national system employer. By 5 March 2015, Mrs Macpherson knew she was going to have to make a decision about this but she delayed making that decision in the hope that the matter could be resolved. Further, having advised the WAIRC on 11 March 2015 that she was going to lodge in the Commission, she did not do so until 13 March 2015. Mrs Macpherson did not provide an explanation for this delay.

[20] While Mrs Macpherson had a reasonable explanation for some of the delay, I do not consider that she had a reasonable explanation for all of the delay. Mrs Macpherson should have acted more promptly when advised on 28 January 2015 of the objection to her application. Instead, she took another 44 days to make a decision. Even after she made a decision to file in the Commission, she waited another two days to lodge her application. While I understand Mrs Macpherson’s desire to resolve this matter without recourse to litigation, it was incumbent on her not to allow this attempt to further delay lodging her application. Her lack of an explanation for the whole of the delay weighs against extending time.

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

[21] Mrs Macpherson was aware of her dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[22] Mrs Macpherson attempted to resolve the matter internally. She wrote to her employer seeking information about the decision to make her position redundant. In addition, she lodged her unfair dismissal claim in the WAIRC. The Trustees were aware that Mrs Macpherson disputed her dismissal. This weighs in favour of extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[23] The Trustees submitted that the new business model had been implemented and that there were no positions to which Mrs Macpherson could be employed. I do not consider any prejudice suffered by the Trustees weighs against extending time.

(e) the merits of the application;

[24] Mrs Macpherson’s position was made redundant. Mrs Macpherson submitted that she was not consulted about the review that led to that decision. It was further submitted that what occurred at the meeting on 2 December 2014 was not consultation. Further, she submitted she could have been redeployed. I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, I find that Mrs Macpherson has an arguable case and this weighs in favour of extending time.

(f) fairness as between the person and other persons in a similar position.

[25] It was not submitted that there are any other persons in a similar position. This criterion is neutral.

Conclusion

[26] I do not consider that there are exceptional circumstances. Notwithstanding the complexity of the jurisdictional issues facing Mrs Macpherson, she chose, after being put on notice by the Trustees that it was a national system employer, to continue with the matter before the WAIRC. Even after deciding to discontinue that proceeding she did not act promptly. Mrs Macpherson’s application for an extension of time is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Macpherson on behalf of the Applicant.

Mr B Dixon on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth via video link:

21 May.

 1   [2011] FWAFB 975.

 2   Exhibit R1 at [1]-[3].

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