Jennifer Adams v Starfire Pty Ltd T/A Active Littlies Childcare Centre

[2018] FWC 2984

[2018] FWC 2984

FAIR WORK COMMISSION

DECISION

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

Jennifer Adams
v
Starfire Pty Ltd T/A Active Littlies Childcare Centre
(U2018/796)

COMMISSIONER CAMBRIDGE SYDNEY, 25 MAY 2018

Unfair dismissal - jurisdictional objection - contest as to date that dismissal took effect -application made out of time - exceptional circumstances identified - extension of time granted.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 25 January 2018. The application was made by Jennifer Adams (the applicant) and the respondent employer is Starfire Pty Ltd T/A Active Littlies Childcare Centre (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 12 January 2018. Consequently, prima facie, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the application also stated that the date that the applicant was notified of dismissal was 20 December 2017.

[3] The employer’s response to the application (Form F3) relevantly indicated that the date that the applicant’s dismissal took effect was 23 December 2017. Consequently, the employer asserted that the application was made out of time, and it requested that this jurisdictional objection be determined before any consideration of the merits of the application was undertaken.

[4] The matter was listed for Conciliation, by telephone, on 28 February 2018. However the Conciliation was cancelled presumably because of the jurisdictional objection raised by the employer.

[5] On 7 March 2018, the Fair Work Commission (the Commission) wrote to the applicant advising of the contest about the date that the dismissal of the applicant took effect. The applicant was invited to provide, inter alia, documentary material to confirm the date that the dismissal took effect.

[6] On 12 March 2018, lawyers acting on behalf of the applicant provided the Commission with written submissions and documentary material to support the assertion that the date that the applicant’s dismissal took effect was 12 January 2018, and not 23 December 2017, as asserted in the Form F3. On 16 March 2018, the contested jurisdictional objection to the application was allocated to the Commission as currently constituted for determination.

[7] On 26 March 2018, the Commission convened a Pre-Hearing Conference during which permission was granted under s. 596 of the Act for either of the Parties to be represented by lawyers or paid agents. Further, the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the respective positions regarding the jurisdictional objection concerning the contested date on which the dismissal of the applicant took effect.

[8] In due course the Parties filed their respective documentary materials and each indicated that they were content for the jurisdictional objection to be determined upon the documentary material which had been filed and without any requirement for a Hearing.

Relevant Factual Background

[9] The applicant had worked for the employer for about three and a half years. The applicant was employed as a Child Care worker. The employer operates a childcare centre located in the New South Wales country town of Warnervale.

[10] An event occurred at the employer’s work Christmas party held on 16 December 2017, and as a result of this event the applicant and a Director of the employer (Mr Stokeld), were engaged in a disagreeable discussion on 18 December 2017. On 20 December 2017, the applicant was provided with email advice that she had been terminated immediately due to her conduct during the discussion with Mr Stokeld on 18 December 2017. This email advice indicated that the applicant was provided with two weeks’ notice which she would not be required to work, and the finish date of 5/01/18 was stipulated.

[11] The applicant responded to the employer by email disputing that the correct period of notice had been given as she believed that she was entitled to three weeks’ notice due to her length of service with the employer. Subsequently, the employer confirmed that the applicant would be provided with a three weeks’ notice period commencing on 25/12/17, and a finish date of 12/1/17 [sic] was stipulated.

[12] On 3 January 2018, the applicant received her final termination payment from the employer which included an amount in respect of the three weeks’ notice period. On 18 January 2018, the applicant received an employment separation certificate dated 02/01/18, and which stated that the date employment ceased was 12/01/2018.

The Employer's Case in Support of the Jurisdictional Objection

[13] The employer has submitted that the employment of the applicant ceased on 25 December 2018 [sic] 1 and it also stated that the termination of the employment of the applicant came into effect on 3 January 20182. On either basis, the employer has asserted that the application was made beyond the 21 day time limitation established by s. 394 (2) of the Act. Consequently, the employer has submitted that the Commission must be satisfied that exceptional circumstances existed, taking into account the factors set out in subsection 394 (3) of the Act, so as to enable an extension of time to be granted.

[14] The submissions made by the employer were constructed with reference to the various factors contained in subsection 394 (3) of the Act.

[15] The employer rejected the reason for the delay as suggested by the applicant. The employer submitted that the applicant was not unaware of the employment relationship ending earlier than 12 January 2018. The employer referred to a written communication from the applicant in which she acknowledged that her final day of employment was 25 December 2017. Therefore the employer submitted that the applicant’s argument that she was unaware that her employment ceased earlier than 12 January 2018 could not be sustained.

[16] The employer further submitted that the applicant became aware of her dismissal on 20 December 2017, and that in accordance with the applicant’s own communication, she understood that the employment ended on 25 December 2018 [sic]. The employer also submitted that the applicant must have been aware that her employment ceased no later than 3 January 2018 being the date that the applicant received her final termination payment. In any event, according to the submissions made by the employer, the applicant was aware of the dismissal well in advance of the dismissal taking effect.

[17] The employer submitted that the applicant took no action to dispute the dismissal prior to the filing of the application. Further, the employer submitted that it was relevant to note that on 30 December 2017, the employer had offered the applicant reinstatement to her employment but this had been rejected by the applicant.

[18] The submissions made by the employer conceded that there was little or no prejudice to the employer caused by the delay.

[19] The employer further submitted that the application was without merit. The employer submitted that the applicant had been dismissed for serious misconduct after engaging in bullying and harassing behaviour towards the employer’s Centre Director. According to the submissions made by the employer, following this behaviour, the applicant then engaged in further inappropriate conduct which involved yelling and swearing in an offensive and aggressive manner towards another of the employer’s Directors.

[20] In summary, the submissions made by the employer asserted that having regard to the factors contained in subsection 394 (3) of the Act, the Commission should not be satisfied that there were exceptional circumstances that would warrant an extension of time to bring the application. The employer submitted that the Commission should not grant the extension of time, and that the jurisdictional objection of the employer should be upheld. The employer submitted that the application should be dismissed accordingly.

The Applicant’s Case in Opposition to the Jurisdictional Objection

[21] The submissions made on behalf of the applicant asserted that the application had been filed in time on 25 January 2018, because the employer had consistently communicated to the applicant that the employment relationship would end on 12 January 2018.

[22] In summary, the submissions made on behalf of the applicant asserted that the date that the dismissal of the applicant took effect was 12 January 2018. The applicant submitted that the employer had consistently represented to the applicant that the employment relationship would not end any earlier than 12 January 2018. The applicant referred to various documents which had been created by the employer, each of which referred to a finish date of 12 January 2018. In particular, the applicant referred to the employment separation certificate which stated that the date the employment ceased was 12/1/2018.

[23] The submissions made on behalf of the applicant also included an alternative proposition which was advanced in the event that the termination date was found to be earlier than 12 January 2018. In this alternative submission it was contended that exceptional circumstances existed to warrant an extension of time. It was submitted that the applicant laboured under the misrepresentations about the termination date which had been promulgated by the employer. Further, the applicant submitted that the merits of the claim were such as to support the granting of an extension of time.

[24] In summary, the applicant submitted that the date on which the dismissal of the applicant took effect was 12 January 2018, and therefore the application was made within the 21 day time limit. Alternatively, if the date on which the dismissal took effect was earlier, the Commission should be satisfied that exceptional circumstances existed and an extension of time granted. The applicant urged the Commission to dismiss the jurisdictional objection raised by the employer.

Consideration

[25] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[26] In this instance, there was considerable contest as to the actual date that the dismissal of the applicant took effect. The applicant sought to rely upon various documents that were constructed by the employer which stated that the date that the employment ceased was 12 January 2018. In particular, the employment separation certificate was asserted to establish that the date that the applicant’s dismissal took effect was 12 January 2018. Conversely, the employer asserted that the employment came to an end on either 25 December 2017, or on 3 January 2018, when the applicant was provided with termination payments.

[27] The applicant was clearly advised of her dismissal from employment on 20 December 2017, and that advice initially indicated that a two week notice period would be applied to the dismissal during which time the applicant would not be required to work. The notice period was disputed by the applicant, and it was subsequently extended by the employer to encompass a three week period. Consequently, the employer provided written advice that the three week notice would commence on 25/12/17 and finish on 12/1/17 [sic].

[28] Despite some confusing suggestions to the contrary contained in paragraph 4 on page 4 of the Form F3, the employer did not require the applicant to work out the notice period. Instead, on 3 January 2018, the employer provided termination payments to the applicant including payment in respect of the three weeks period of notice. This circumstance involves a dismissal involving what is referred to as payment in lieu of notice.

[29] In circumstances involving dismissal with payment being made in lieu of notice the employment will not ordinarily be extended beyond the date of the payment to the subsequent date of the expiry of the notice. As a general rule, the date that the dismissal takes effect is the date on which the payment is made in lieu of the notice, and not the date of the expiry of the period of the notice. 3

[30] Consequently, the date that the dismissal of the applicant took effect was the date that the termination payments including the payment in lieu of notice, was made. The termination payment was made on 3 January 2018, and thus the date that the applicant’s dismissal took effect was 3 January 2018.

[31] The application was filed on 25 January 2018, which was the 22^nd day after the day on which the dismissal took effect. Therefore the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made one day after the expiry of the 21 day time limit.

[32] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[33] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time.

[34] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[35] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should be a factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[36] In this case the delay was 1 day relevant to the 21 day time limit. Consequently the delay has represented the shortest possible length of any delay.

Subsection 394 (3) (a) - the reason for the delay

[37] In this instance the reason for the delay involved the applicant’s mistaken belief that the date that her dismissal took effect was 12 January 2018. The applicant’s mistaken belief was, in the particular circumstances of this case, understandable. The employment separation certificate provided by the employer recorded the date employment ceased to be 12/1/2018. Although the applicant had received termination payments on 3 January 2018, it is understandable that she acted in accordance with the date stipulated by the employer in the employment separation certificate.

[38] It appeared that the employer may also have initially operated under the misapprehension that the employment of the applicant ceased at the end of the notice period rather than at the time at which the payment in lieu of the notice was made. The material provided by both Parties reflects a genuine misunderstanding about something that would understandably not be recognised by persons who were unfamiliar with the operation of Australian employment law.

[39] It is also relevant to note that there appeared to be no deliberate attempt to delay the filing of the application notwithstanding the applicant’s mistaken belief that the dismissal took effect from 12 January 2018. The application was filed 13 days after the date that the applicant (mis)understood to represent the date on which the dismissal took effect. Consequently, there was no appearance of deceitfulness or mala fide that could be identified in association with the unintentional late lodgement of the application.

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

[40] The applicant first became aware of the dismissal at the time at which she was dismissed, 20 December 2017. Consequently, this factor does not provide any assistance to the applicant.

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

[41] The applicant did not take action to directly dispute the dismissal. It is relevant to note that the applicant rejected the employer’s attempts to revoke the dismissal and have it downgraded to an official warning. The applicant treated the actions of the employer as having irreparably damaged the employment relationship. Therefore I consider that this factor does not assist the applicant.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[42] The employer acknowledged that there was no prejudice that could be identified in this instance. Consequently, this factor could be considered to provide assistance to the applicant.

Subsection 394 (3) (e) - the merits of the application

[43] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension was granted. The Parties made strongly contrasted submissions in this regard.

[44] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no suggestion that the unfair dismissal claim was entirely without basis or involved some vital flaw which would render it open to the prospects of summary disposal. On any objective and balanced assessment the unfair dismissal claim presents as an arguable case. Consequently, the logical consideration of this factor would provide support for the granting of an extension of time.

Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position

[45] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[46] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  4. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[47] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  5 and the following paragraph from that Decision is particularly helpful:

“[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.”

Conclusion

[48] In this instance the exercise of the discretion to extend time has been required in respect to a delay of one day. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[49] The reason for the delay involved a mistaken belief as to the date on which the dismissal of the applicant took effect. The applicant’s error was understandable, and made with a plausible explanation. The unusual aspect of the circumstances in this case has involved the error made by the employer in various documents including the employment separation certificate and upon which the applicant has mistakenly relied. The other factors under consideration which either assisted the applicant's claim for the Commission to exercise the discretion to extend time, or which were of neutral impact, or which operated against an extension of time, have all been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be drawn having regard for all of the relevant issues.

[50] On balance, I have determined that exceptional circumstances have been established and it would be just and equitable for the Commission to exercise the discretion to extend time. An Order [PR607445] made pursuant to subsection 394 (3) of the Act allowing a further period until 25 January 2018 for the application to be made will be issued in conjunction with this Decision.

[51] The matter will be listed for Mention and Directions proceedings at 10:00 am on 8 June 2018.

COMMISSIONER

Final written submissions:

Employer: 13 April 2018 and 23 May 2018.

Applicant: 7 May 2018.

Printed by authority of the Commonwealth Government Printer

<PR607444>

 1   Submissions of the solicitors for the employer sent 23 May 2018.

 2   Paragraph 5 of communication from the employer sent 13 April 2018.

 3   See Siagian v Sanel Pty Limited(1994) 54 IR 185, and Macken’s Law of Employment , [Sappideen et al,] Eighth edition, Lawbook Co. 2016, at [9.150].

 4   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 5   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.