Janelle Kay Upsall v Dentay Pty Ltd T/A Taylor Groenlund & Doan Dental Surgery

[2009] FWA 1899

[2009] FWA 1899

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Janelle Kay Upsall
v
Dentay Pty Ltd T/A Taylor Groenlund & Doan Dental Surgery
(U2009/12779)

COMMISSIONER ROBERTS SYDNEY, 8 JANUARY 2010

Termination of employment - extension of time and jurisdictional issues.

[1] This decision concerns an application lodged by Ms Upsall on 8 October 2009 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of her employment by Dentay Pty Ltd T/A Taylor Groenlund & Doan Dental Surgery (Dentay). Ms Upsall’s application also seeks relief pursuant to s.659 (discrimination or other prohibited reasons) and s.661 (failure to give notice of termination) of the Act for the alleged unlawful termination of her employment.

[2] In her application, Ms Upsall states that the termination of employment took effect on 18 May 2009. Accordingly, her application was filed some 122 days outside the 21 day time limit prescribed by the Act and therefore requires me to consider whether to grant Ms Upsall an extension of time for filing. An extension of time was opposed by Dentay which also objected to conciliation before determination of the application to extend time.

[3] Dentay also raised jurisdictional objections on two grounds, the first being that it employed fewer than 100 persons at the time Ms Upsall’s employment was terminated, and secondly that employment was terminated for genuine operational reasons. Ms Upsall did not dispute the first ground and withdrew her application pursuant to s.643(1)(a) of the Act. This means that the second jurisdictional point no longer arises. Ms Upsall’s application is now made pursuant to sections 659 and 661 of the Act only.

[4] Directions were issued on 16 November 2009 for the filing of submissions, witness statements and any supporting documents. The submission process concluded on 21 December 2009.

[5] In the particular circumstances of this case, I am satisfied that it is appropriate for me to make my decision “on the papers”, after applying the relevant legislative provisions.

Legislative Framework

[6] Subsections 643(14) and (15) of the Act provide:

“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.

(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”

[7] The following Note appears under subsection 643(15):

“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

[8] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 1

"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

[9] In Cruz and Australia Post Corporation 2(Cruz), a Full Bench of this Commission said of Brodie-Hanns:

“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 3

Background

[10] Ms Upsall commenced employment with Dentay on 9 February 1999. At the time her employment was terminated she was employed as Senior Receptionist/Dental Assistant. Dentay maintains that the termination of employment occurred following Ms Upsall’s refusal of a full time position. Prior to the termination of her employment, Ms Upsall had been working on a part-time basis. Ms Upsall contests the reasons for termination provided by Dentay.

Explanation of the delay

[11] The gravamen of Ms Upsall’s argument for extension of time is that she complained to the Fair Work Ombudsman (FWO) shortly after the termination of her employment concerning ‘severance pay’. She received the following reply from the FWO dated 29 September 2009:

“Notification of Complaint Referral

Dear Janelle Upsall

I am writing in relation to your complaint lodged with the Fair Work Ombudsman on 25 May 2009 concerning severance pay.

The matter you have raised does not fall within the Fair Work Ombudsman’s jurisdiction to investigate as your employment was not covered by Commonwealth workplace laws as it appears your employer had less than 15 employees. However, it has been identified that you may have a case of Unlawful Termination.

As these matters are outside the jurisdiction of the Fair Work Ombudsman, I am unable to provide you with further assistance except to refer you to the following agencies where you can pursue your complaint:

Australian Industrial Relations Commission - now Fair Work Australia

Level 8, Terrace Tower

80 William Street

EAST SYDNEY NSW 2011

Telephone: [phone] Email: [email protected]

Australian Human Rights Commission

GPO Box 5218

Sydney NSW 2001

Phone: [phone]

Complaints Infoline: 1300 656 419 Email: [email protected]

Alternatively you may call the FWA Help Line on 1300 799 675 or visit the website fairwork.gov.au”

[12] She then filed the current application on 8 October 2009.

[13] In written submissions, Ms Upsall said:

“I am writing to [you] in hope that you would consider an extension of time in regard to my application for relief in respect of termination of employment sections 659 & 661. The Fair Work Ombudsman has been investigating this matter since my termination on the 18th of May this year, I then received a letter at the end of September stating that they could not assist me any further and suggested that I contact your Department to pursue my complaint further and that I may have a good case of Unlawful Termination. I then lodged my application with your Department.

I have worked for this Company and been very loyal for the past 20 years, 15 years fulltime & the last 5 years were casual & permanent part-time. I was told that if I did not accept fulltime hours which totalled to 47 hours that my position then my position was then redundant. I think that 47hrs is an extreme amount of hours for anyone, especially someone with a family, as I have a 5 year old son at home and I also take care of my father since my mother passed away 11 years ago.

I feel that I was discriminated against because of my family & home situation. I also feel that I did not receive enough notice as I was only given a matter of a few hours to give my decision as the 47 hours were effective immediately.

I feel that I was treated unfairly in this case and hope that you will consider my application for an extension of time.”

[14] In written submissions, Dentay said:

“Extension of time should not be granted to the former employee of the Practice, Mrs. Janelle Upsall for the following reasons:

• More than four months since the former employees position was made redundant.

• The position of part time receptionist no longer exists.

• The full time position was offered to the former employee, but she declined it on the spot, she did not wish to think about it or even discuss it with her family.

• At no time was the employee asked to work forty seven (47) hours per week, if she had accepted the full time position she would have been required to work a normal forty (40) hour week.

• The Practice provides flexibility for all employees.

• At no time was the employee discriminated due to her family/home situation.”

Action taken by the Applicant

[15] It appears that the only action taken by the Applicant was to file a complaint with the FWO. It is not apparent that Ms Upsall took any action to dispute the termination of her employment but she did take action to dispute the terms on which the employment relationship ended and I so find.

Prejudice to the Respondent

[16] Neither party addressed this issue. The absence of a claim of prejudice to Dentay has therefore been a neutral consideration in the making of this decision. However, I note that the absence of a claim of prejudice, or of prejudice itself, does not constitute a positive reason to extend time.

Merits of the substantive application

[17] The facts of the substantive application appear to be strongly contested. On the material before me, I am unable to make any finding concerning the merit of Ms Upsall’s claim pursuant to s.659 of the Act and that issue has therefore been neutral in my consideration. However, I am also unable to find that Ms Upsall’s claim is totally without merit. In relation to Ms Upsall’s claim pursuant to s.661 of the Act, I note that Dentay appears to have paid her a total of four weeks pay in lieu of notice and this appears on the face of information available to me to comply with the requirements of s.661 of the Act.

Fairness between the Applicant and other persons in a like position

[18] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion

[19] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”

[20] The onus is on Ms Upsall to convince me that I should extend time. I am satisfied, on balance, that she has met that onus.

[21] Ms Upsall has, in my view, made out a case for an extension of time. It was reasonable for Ms Upsall to take no action in pursuing an application for relief until she received the somewhat belated reply from the FWO. After receiving that reply, she acted within a reasonable time frame to file the current application. The delay in filing the application is quite extensive, but on balance, understandable in all the circumstances.

[22] I find that this is a case where I should exercise my discretion to extend time and time is extended until the actual date of filing. Ms Upsall’s application will now proceed to conciliation. Unless either party objects within seven days of the publishing of this decision, such conciliation will be listed before me. If either side objects to me conducting the conciliation, it will be re-allocated to another Member of the Tribunal.

[23] An order reflecting this decision is in PR992386.

COMMISSIONER

 1   (1995) 67 IR 298 at p299.

 2  [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)

 3   Ibid at paragraph 23.

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