Harminder Kaur v University of Melbourne
[2023] FWC 3306
•14 DECEMBER 2023
| [2023] FWC 3306 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Harminder Kaur
v
University of Melbourne
(C2023/5727)
| COMMISSIONER CIRKOVIC | MELBOURNE, 14 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – extension of time.
Harminder Kaur (Applicant) lodged a general protections application (GP application) with the Fair Work Commission (Commission) pursuant to s365 of the Fair Work Act (Act). The Respondent to the application is University of Melbourne (Respondent).
The Applicant submits that her employment with the Respondent was terminated with effect from 29 August 2023. In its written material, the Respondent submits that the Applicant’s employment was terminated with effect on 22 August 2023. At the hearing before me, the Respondent proffered 23 August 2023 as the date the Applicant’s dismissal took effect. The GP application was lodged at 3.48pm on 19 September 2023. If the Applicant’s employment was terminated with effect on 29 August 2023, the last day to lodge the GP application was 19 September 2023 and the application was lodged within time. If the Applicant’s employment was terminated with effect on 22 August 2023, the last day to lodge the GP application was 12 September 2023, and the application was therefore lodged 7 days out of time. If the Applicant’s employment was terminated with effect on 23 August 2023, the last day to lodge the GP application was 13 September 2023 and the application was therefore lodged 6 days out of time.
Legislative scheme
Subsection 366(1) of the Act provides that an application under s.365 of the Act must be made within 21 days after the dismissal took effect:
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said (footnotes omitted):
“[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.”
Approach of the Commission
The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2] that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s366(2)(a), a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
The Applicant does not contest that she was informed verbally of her termination on 22 August 2023 and that this was her last day of work. It is also not in contest that the Applicant received written confirmation of her termination on 23 August 2023 by way of email correspondence. She submits that as she was paid 1 week in lieu of notice, her dismissal took effect on 29 August 2023, being 7 days after her dismissal was communicated to her. The Applicant submits that she received her final payment on 31 August 2023.
In its written material, the Respondent submits that the Applicant’s dismissal took effect on 22 August 2023 when it was communicated to the Applicant orally in a meeting on the same day. The Respondent also submits that the payment of the Applicant’s entitlements and the one week in lieu of notice paid to her during the pay period commencing 28 August 2023 does not alter the effective date of termination. The Respondent submits that the Applicant did not present for work after 22 August 2023. I note that during the course of the hearing before me, the Respondent submits that the dismissal took effect on 23 August 2023 when it was communicated in writing to the Applicant.
A termination letter was issued to the Applicant’s usual email address on 23 August 2023 stating:
“Dear Harminder,
Re: Termination of Employment within Probation
This letter is to confirm the details of the meeting on 22 August 2023 with Francesca Pecoraro, Program Manager (Teaching & Learning) and Rebecca Anselmi, HR Business Partner, in which you were advised that the decision had been made to terminate your employment within the probation period, effective 22 August 2023. As a result, your employment with the University of Melbourne ended on 22 August 2023.
I confirm that you are not required to work out your notice period and will be paid one week in lieu of notice in accordance with your contract of employment and the University of Melbourne Enterprise Agreement 2018. You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment.
I confirm I am arranging for your personal belongings to be couriered to your home address and will also arrange for the courier to collect your laptop.
Understanding this may be a difficult time, I encourage you to seek confidential counselling support through the University’s Employee Assistance Program Assure on 1800 808 374 if the need arises.
We wish you well in your future endeavours.
Yours sincerely,” (emphasis added)
In Ilves v Lawson Worldwide Forwarding Pty Ltd,[3] Deputy President Gostencnik observed that (at [37] – [40]):
“…In order to terminate an employment relationship, the party exercising the right to terminate must give clear and unequivocal notice that it no longer wishes to be bound by the employment contract. In other words, there must be no doubt in the mind of the party whose employment is being terminated that the employment relationship has come to an end. The law concerning the construction of notice is well established both generally and in the industrial relations context. Some of those established principles are outlined as follows.
[38] The principles governing the interpretation of contractual notices were summarised in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd. Although the notice in this case concerned the construction of a trust deed and notices under deed, the same principles of construction apply. Lord Steyn posited as follows:
“The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual sense. … the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind…” 60 [Emphasis added].
[39] More relevantly, as Hatcher VP observed in Ayub:
“The general principle is that to affect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.”
[40] Finally, in order to take effect, notice of termination of an employment relationship must stipulate when that termination is to take effect, or it must at least be possible to determine that time.” (emphasis retained)
On the material before me, I am satisfied that the effective date of the termination of the Applicant’s employment is 22 August 2023. It is uncontested that the Applicant was informed at the 22 August 2023 meeting that her termination would take effect that day. That she was also advised that she would be paid 1 weeks wages in lieu of notice does not alter my conclusion that the termination took effect on 22 August 2023. I observe that the Respondent submitted at hearing that the dismissal took effect when it was communicated in writing on 23 August 2023. In my view, a notice of termination that does not comply with s.117 of the Act may still be effective to bring about the termination of the employment relationship and may constitute ‘notice of dismissal’ within the meaning of s.383(a)(i) of the Act.[4]
I have found that 22 August 2023 is the date the dismissal took effect, and the application was therefore lodged 7 days out of time. In the event that I am wrong and the dismissal took effect on 23 August 2023, the application remains 6 days outside of the statutory time frame. For the reasons I have outlined below, I would reach the same conclusion with respect to the extension of time if the Applicant’s employment terminated on 23 August 2023.
Matters to be taken into account pursuant to s366(2)
In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s366(2) above. I will deal with each of those matters separately.
(a) the reason for the delay;
The Applicant advanced the following reasons for the delay in filing her application:
She wanted to confirm what options she had before filling out forms.
She was advised by phone by a representative of the Commission on 28 August 2023 that she had until 19 September 2023 to file a General Protections claim.
She believed she had more time to file her claim and decided to wait a few more days to for the Investigations team of the Respondent to respond to her privacy complaint.
Her priority was to compile all the evidence that she had before she could make her complaint and that she thought she had until 19 September 2023 to file her application.
During the period of 22 August 2023 until 19 September 2023, she was also undergoing treatment for 2-disc bulges in her lower back. She was seeing an osteopath, a physiotherapist and a general practitioner on a “regular basis for the often-unbearable pain caused by the bulges”. The Applicant states she attended medical appointments on 25 August 2023 with an osteopath, a physiotherapist on 30 August 2023, a general practitioner on 12 September 2023, and an osteopath and a physiotherapist on 13 September 2023. In support of this submission, the Applicant submitted a CT scan letter dated 11 July 2023, an MRI scan letter dated 3 August 2023, and a Certificate of Capacity dated 10 July 2023.
She was unable to sit still for longer than 30 minutes at once and needed to take “walking” breaks to stave of the stiffness and soreness of the muscles. This often made it uncomfortable and time consuming for her to focus on a task that required accurate submission of evidence and going through hundreds of emails and thousands of Teams messages.
The Respondent submits that a number of the Applicant’s allegations are unsubstantiated and, in any event, do not either, individually or collectively, offer a credible reason for the delay in filing her application.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her application.
First, I do not accept that the Applicant’s decision to wait for the Respondent to respond to her privacy complaint before lodging her application is an acceptable reason for the delay. The Applicant concedes that she accessed the Commission website and was aware of the strict 21 day time limit for a general protections application. Information on lodging GP claims including the 21 day requirement is available on the Commission’s website. In any event, I observe that ignorance of the time limit or a right to challenge a dismissal is not generally an acceptable explanation for a delay.[5]
I also observe that the application on its face makes clear the importance of the time limit. On the first page of the Form F8, under the heading “lodging your completed form”, it states ‘Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect’. I also note that the procedure for lodging a GP application is a process which involves completion of a very simple form in any one of a variety of very simple ways. Again, the application on its face states that “You can lodge your application online using the Commission’s Online Lodgement Service (OLS) or by post, fax or email, or in person at the Commission’s office in your state or territory.” The Applicant was aware of her dismissal and did not require the outcome of her privacy complaint to lodge a general protections application.
Second, members of the public enquiring by telephone to the Commission about making applications may be given general advice about applications that can be made and procedural advice, but Commission staff are not able to give legal advice. In any event, it must be noted that the Commission website makes it clear that staff cannot provide legal advice. The Commission website clearly states, “we cannot give you legal advice or recommend a lawyer or paid agent for you”. [6] I do not accept the Applicant’s contention that she was given incorrect legal advice from the Commission.
Third, the Applicant has filed medical records to support her claim of significant back claim and suffering and I accept this to be true. The Applicant did not provide any further information as to why this medical condition limited her ability to file her application within the statutory time limit. I note that the Applicant’s medical records all predate her dismissal. In any event, a medical certificate alone is not evidence that an Applicant was unable to complete her application on time due to a medical condition. The existence of a medical condition is not evidence that the condition caused a non-compliance with the statutory timeframe. Some relationship between the condition and the failure to comply is necessary. In this case, there is insufficient material before me as to the impact of this medical condition on the Applicant’s failure to lodge within the statutory timeframe.
Whilst I accept the Applicant was in pain around the time of her dismissal and afterwards, I am not satisfied that her illness prevented her from lodging her general protections application, a process which involves completion of a very simple form in any one of a variety of many simple ways.
I do not consider the matters relied on by the Applicant, individually or together, an acceptable or reasonable explanation for the delay in filing her application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal.
The Applicant submits that she emailed a privacy complaint to the Respondent on 24 August 2023 in which she also stated “This email is not only to lodge a formal complaint about the breach of privacy by sharing pictures with three other staff members without consent - but also because I believe that my termination was an attempt to cover up what I had informed Manni Sidhu of about the private pictures being shared outlining that her privacy was breached and that flagging it with the Health and Safety Business Partner of the Respondent had led to her termination”.
The Respondent concedes that the Applicant took action to dispute her dismissal through lodging a privacy complaint.
I find that the Applicant took action to dispute this dismissal through lodging a privacy complaint with the Respondent. This factor weighs in favour of granting an extension of time.
Prejudice to the employer
Prejudice to the employer will go against a granting of an extension of time.[7]
The Applicant submits that no such prejudice exists.
The Respondent did not provide any submissions on this point.
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Respondent submits that the Applicant was dismissed because she had not demonstrated an ability to perform the role to the minimum standard expected despite support and coaching from her manager.
The Applicant submits that she was dismissed in contravention of s.343, s.351 based on race, and s.352 of the Act due to her temporary absence with illness and injury.
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
Having considered all of the factors set out in s.366(2) I am not satisfied that the requisite exceptional circumstances exist. Some of the factors I am required to consider are neutral and I have found that the Applicant took some steps to dispute her dismissal. There is no acceptable or reasonable explanation for the delay in filing the application. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Ms Kaur, on her own behalf
Mr Bower, for the Respondent.
Hearing details:
2023.
December 11 (by Microsoft Teams)
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 901.
[3] [2017] FWC 2993.
[4] Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [33].
[5] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
[6] Fair Work Commission website: Legal help and representation | Fair Work Commission (fwc.gov.au)
[7] Ibid
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