Haley Rennie v Cordell Information Pty Ltd

[2014] FWC 3782

[2014] FWC 3782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Haley Rennie
v
Cordell Information Pty Ltd
(U2014/5569)

DEPUTY PRESIDENT BOOTH SYDNEY, 5 JUNE 2014

Termination of employment - application for an unfair dismissal remedy - application for an extension of time.

[1] Ms Haley Rennie was employed as a marketing and event specialist with Cordell Information Pty Ltd (Cordell) from 1 October 2008 until her employment relationship with Cordell ended.

[2] Ms Rennie lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 13 March 2014.

[3] On 3 February 2014 Ms Rennie wrote a letter to Cordell tendering her resignation. She stated in part:

“My resignation is effective from today. As per my contract, I am providing Cordell Information with four weeks’ notice. My last working day will be Friday 28 February 2014.”

[4] On 4 February 2014 an email from Cordell to Ms Rennie recorded an agreement that her last working day will be 4 February 2014 and, amongst other things, she will be paid for all of her four week notice period.

[5] Ms Rennie describes the ending of her employment relationship with Cordell as a “forced resignation”.

[6] This decision does not address the question of whether Ms Rennie was dismissed in terms of s.394 and s.396 of the Act. It addresses an application made by Mr Rennie for an extension of time for lodging her application.

Directions

[7] On 9 April I wrote to the parties bringing their attention to s.394 of the Act and the matters to be addressed in submissions with directions as follows:

“The applicant is to lodge a submission in support of an extension of time with these Chambers, and serve a copy on the respondent, by close of business on 23 April. The applicant should indicate whether she seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision without a hearing, known as making a decision on the papers.

The respondent is to lodge a response to this submission with these Chambers, and serve a copy on the applicant, by close of business on 7 May 2014 and indicate whether it seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision on the papers.

The applicant is to lodge any reply she wishes to make to the respondent’s submissions on 14 May 2014.

If both the applicant and the respondent agree to the decision being made on the papers Deputy President Booth will consider whether a decision on the papers is appropriate and if so, make her decision soon thereafter. If either party seeks a hearing of the matter, or Deputy President Booth considers that a hearing is appropriate, the matter will be listed soon thereafter. The parties will be advised of the course of action to be adopted.”

Date of effect of dismissal

[8] If there was a dismissal a threshold question for the purpose of this application is what is the date the dismissal took effect?

[9] In considering this question I have had regard for s.394 of the Act which reads as follows:

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.

[10] The terms “dismissed” and “dismissal” found in s.394(1) and s.394(2)(a) have recently been considered by a Full Bench of the Commission. In Mr Peter Mihajloviv v Lifeline Macarthur 1 the Commission points out that s.386(1) guides the interpretation of s.394(1) by defining the circumstances in which a person can be said under the Act to have been dismissed.

[11] Section 386 (1) of the Act reads as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[12] This decision makes it clear that the use of the word “dismissal” in s.394(2)(a) has the same meaning and that a termination of employment at the initiative of the employer occurs at the time that the employment relationship comes to an end. This is to be distinguished from the end of the contract of employment as the employment relationship and the contract of employment are not necessarily co-terminous. In circumstances where pay in lieu of notice is paid and the notice period is not worked the last day of work is taken to be the date that the employment relationship ended. 2

[13] I conclude that Ms Rennie’s employment ended on 4 February 2014. The application was lodged on 13 March 2014, day 37 after the employment relationship ended and as such the application was 16 days out of time. To have been within time the application would have had to have been lodged on 25 February 2014.

[14] Ms Rennie bears the onus of satisfying the Commission that it should exercise its discretion pursuant to s.394 of the Act to extend the time for making the application.

[15] Section 394(3) of the Act makes it clear that an extension of time may be granted by the Commission if there are exceptional circumstances, that is, the judgement to be made is still the Commission’s to make.

[16] McHugh J’s decision in the High Court judgement in Brisbane South Regional Health Authority v Taylor (Brisbane South Regional Health Authority case) 3 in an appeal against a judgement in the Court of Appeal of Queensland that had allowed an appeal against a decision of the District Court of Queensland to refuse an extension of time in which to commence an action makes the point clearly. He says at page 554:

“Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.”

[17] So it is in this jurisdiction. There are certain matters set out in s.394(3)(a) to (f) that I must take into account in determining whether I am satisfied that there are exceptional circumstances, however I must then apply my discretion as to whether an extension of time should be granted. In the words of McHugh J in the Brisbane South Regional Health Authority case I must decide whether “justice will be best served by excepting the particular proceedings from the general prohibition”.

Reasons for delay

[18] Ms Rennie submitted that she “felt she was pushed out of the company but was not sure of the legal side of things.”

[19] In the period immediately following the end of the employment she took legal advice and decided not to lodge a claim. However,

“the day before I submitted this claim I was told by former colleagues’ of mine that my previous boss who had been the one to push me out of the company had been fired. Upon hearing this news I immediately launched the unfair/constructive dismissal claim even though it was out of the time frame.”

[20] Cordell’s submissions addressed the substantive application and did not refer at all to the extension of time application.

[21] I conclude that Ms Rennie knew that her application was out of time and her reason for delay was, in effect, that she changed her mind. I do not consider this to be a reason for delay that would justify the exercise of my discretion to extend time for lodging an application.

Other factors

[22] In relation to the other factors that I am required to take into account in coming to a conclusion Ms Rennie does not contend that she was not aware that the employment relationship had ended. She makes no submissions concerning action taken to dispute the ending of the employment relationship, save the making of the application that is the subject of this decision. Cordell makes no submission concerning prejudice. I conclude that there would be no prejudice to Cordell if an extension of time was granted. The merits of the substantive application reveal a contest of facts and conclusions as well as the jurisdictional question of whether Ms Rennie was dismissed in terms of the Act. This factor is neutral to negative in my consideration. It is not contended that there is anyone in a similar position to Ms Rennie and so this factor is not relevant.

Consideration

[23] I have considered Ms Rennie’s circumstances in relation to her reasons for delay and the other factors I am required to take into account in making my decision. There is nothing in her circumstances that I consider exceptional or “out of the ordinary course, or unusual, or special or uncommon” to use the words of the Full Bench of Fair Work Australia, the predecessor to the Commission, in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 4

Conclusion

[24] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I have decided against granting Ms Rennie an extension of time in relation to her application. Her application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Final written submissions:

27 April 2014

 1  [ 2014] FWCFB 1070

 2   Ian Pinondang Siagian v Sanel Pty Limited 1994 IRCA 2

 3 (1996) 186 CLR 541

 4   [2011] FWAFB 975

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