Jennifer Young v Department of Education

[2020] FWC 6244

[2020] FWC 6244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Young
v
Department of Education
(U2020/13873)

COMMISSIONER YILMAZ MELBOURNE, 20 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Ms Jennifer Young (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

Background

[2] Ms Young was engaged as a part-time teacher at Foster Secondary School on a 12-month fixed term contract. She submits that there was an in-principle agreement between herself and the Principal to extend the fixed term contract, albeit with an increase to the part-time hours, but then the school advertised the same position as a full-time role the following day. Ms Young submits that the retraction to extend her part-time contract was a termination of employment. The Department of Education (the Department) submit that the conclusion of the fixed term contract is not a dismissal pursuant to s.386 (2)(a) of the Act, that her employment with the Secretary of the Department is ongoing and even if the Commission was to find there was a dismissal, that the application is out of time.

[3] Ms Young’s fixed term contract with Foster Secondary School concluded on 27 January 2020 and the unfair dismissal application was filed on 20 October 2020.

[4] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3) of the Act. Should I find that the dismissal occurred at the conclusion of the fixed term contract, the period of 21 days ended at midnight on 17 February 2020. The application therefore is filed 246 days outside the 21-day period. Ms Young asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request and states there are no exceptional circumstances for an extension of time.

[5] Before considering the matter of extension of time, I firstly address the jurisdictional objection raised by the Respondent that there was no dismissal as Ms Young remains an employee of the Secretary of the Department of Education and Training on behalf of the State of Victoria (the Department). The Department further submits that where Ms Young remains in employment any order for reinstatement is futile and all other remedies sought by the Applicant fall beyond the powers of the Commission under s.390. 1

[6] The unfair dismissal protections of the Act provide for a remedy where the Applicant is dismissed from employment and the Commission is satisfied that the Applicant was protected at the time of dismissal and was unfairly dismissed. 2 The Act pursuant to s.382 of the Act, further provides that an Applicant is protected where one or more of the following applies:

•  A modern award covers the person,

•  An enterprise agreement applies to the person in relation to their employment,

•  The sum of the person’s annual rate of earnings is less than the high income threshold.

[7] While there was no disputation between the parties regarding s.382, there remains the necessity that an Applicant’s circumstances meet the requirements of a dismissal. Relevantly, s.386 of the FW Act states:

“(1) [When a person has been dismissed]

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.

(2) [When a person has not been dismissed]

However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season

….……”

[8] Ms Young submits that her employment was dismissed by Foster Secondary School firstly when it did not extend her contract of employment beyond the fixed period. Ms Young submits that it is common practice that fixed term contracts are extended, particularly where excess staff is the reason for the fixed term, and it no longer applies at the end of the term. Secondly, prior to her engagement at the school and during, Ms Young submits that there was an understanding with the Principal that with the impending retirement of the part-time health teacher at the end of 2019, that her employment would be extended and as her children grew older her capacity to increase her time fractions would increase. 3 Ms Young submits that her duties included being assigned the responsibilities of the departing teacher.

[9] Ms Young tendered in evidence email exchanges between herself and the Principal to demonstrate her understanding of the relationship and expectations of ongoing employment. 4

[10] Ms Young conceded that she entered a fixed term contract, but submits that the contract does not specifically state that employment will come to an end. 5 Ms Young also distinguished her circumstances relying on submissions that it was common knowledge that she was a primary care giver of two young children requiring flexible work arrangements, that her experience matched the experience of the retiring teacher and it was expected that she would transition into the role in 2020.6 The Respondent contests the submissions and tendered in evidence a witness statement of Mr McPhee, the Principal of Foster Secondary School.

[11] The Department further submits that as the employer of Ms Young rather than Foster Secondary School, her employment was not terminated by it. The Department tendered in evidence Ms Young’s signed fixed term contract and various email correspondence between the Principal and Ms Young. 7 Other materials tendered included a witness statement of Mr Hogan, the Principal of Lowanna College and attachments including email correspondence, Ms Young’s statement of service, her contract and other documentation.

[12] While this matter was listed for an extension of time, the evidence demonstrates that:

•  The employer of Ms Young is the Secretary of the Department of Education and not at any time Foster Secondary School or Lowanna College;

•  Ms Young entered a contract to be engaged at Lowanna College as Assistant Principal from 27 January 2016 until 26 January 2019, at which time at its end the contract is renewable or Ms Young’s employment would revert to a Leading Teacher position;

•  Ms Young commenced on parental leave from 30 September 2017;

•  While on leave from Lowanna College, Ms Young commenced with Foster Secondary School on a fixed term period; and

•  Ms Young’s compassionate leave status was approved on 24 February 2020 after being granted a further period of leave without pay until 26 January 2022 from Lowanna College.

[13] While the above evidence was not contested, as the jurisdiction question of no dismissal was not properly heard, Ms Young was not given due opportunity to test the Respondent’s tendered evidence or to make her own submissions on the question. In fairness to Ms Young, while it appears on the face of the material tendered that her employment is still ongoing and that she was not dismissed, I make no formal finding on this point at this time.

[14] Nevertheless, I do observe that based on the evidence tendered, that Ms Young may find it challenging to dispute that her employment with the Department is ongoing and was not terminated by the actions of Foster Secondary School. The question requires an objective analysis of the facts to find that the termination of employment was at the initiative of the employer and a consideration of all of the circumstances, including the evidence tendered by the Department in this matter. I now turn to the question of whether to grant an extension of time.

Extension of time

[15] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 8 Exceptional circumstances may 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 can be considered exceptional.9

[16] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[17] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[18] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[19] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 10

[20] Ms Young submits the delay in the filing of the unfair dismissal application was due to her conduct in pursuing her dispute concerning the decision made by Foster Secondary School not to extend her contract but to advertise a full-time teaching position for 2020 with the Department through its own processes as a priority.

[21] Ms Young tendered evidence of contact with the South East Victoria Region office, the Senior Education Improvement Leader and Employee Conduct Branch. Communication between Ms Young and various Department contacts was lengthy and the time between correspondence was 2-3 months on occasions. Ms Young diligently approached her dispute by firstly working through the dispute process available to her within the Department. However, Ms Young provided no satisfactory explanation for her delay in filing this application within the statutory 21 day time frame. While I commend her approach in seeking redress through the Department as a priority, there was no reason why an application could not be lodged in this Commission within the required time.

[22] While I empathise with the pressure on Ms Young given her family commitments which required flexible working arrangements, and the disappointment and anxiety after her engagement with Foster Secondary School did not continue into 2020, for the purposes of an extension of time, Ms Young is required to provide credible reasons for the period of delay. A total of 246 days late was not satisfactorily explained to justify an extension of time based on exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[23] Ms Young was aware of the concluding date of the fixed term contract with Foster Secondary School having signed the contract which stipulated the dates. Further the discussions and actions of the parties in October 2019 clarified for Ms Young that her employment would not be extended beyond 27 January 2020. Ms Young’s awareness of the impending conclusion date well ahead of time, does not weigh in her favour to explain the delay in filing her application or justifying an extension of time.

Action taken to dispute the dismissal

[24] Ms Young expressed her displeasure at the decision to not extend her fixed term contract and she actively took action by accessing the complaint process open to her through formal Departmental processes. This action was apparent to the Department that Ms Young did not consider the matter resolved. However, it is reasonable for the Department to not have expected an unfair dismissal application in light of the view that Ms Young’s employment was ongoing, particularly 267 days after her engagement with Foster Secondary School concluded.

[25] I note the remedy sought by Ms Young is not reinstatement or compensation but a review by the Department 11 of the decision made at the school level, taking into consideration the personal needs of a flexible working arrangement and in the context of distance limitations to working in regional Victoria. Such a remedy is not within the jurisdiction of this Commission in an unfair dismissal application, however, I note the submissions of Ms Young that she required attention on her dispute which she was unable to achieve to her satisfaction over the course of 2019-2020. Perhaps through this process, Ms Young may have achieved some level of attention that may lead to the resolution of her grievance.

[26] I consider this consideration does not favour the granting of an extension of time.

Prejudice to the employer

[27] While Ms Young states that the Department and Foster Secondary School were not disadvantaged by her late application, the Department did not address this consideration.

[28] While likely the delay inconvenienced the Respondent, no evidence of prejudice was relied on. However, the authorities provide the mere absence of prejudice is insufficient to grant an extension of time. 12 In this matter, balanced against the other considerations I am of the view that it is a neutral consideration.

Merits of the application

[29] The Act requires me to take into account the merits of the application in considering whether to extend time.

[30] Putting aside the jurisdictional point of whether there was a dismissal, Ms Young’s merit argument goes to the decision to make the position full-time, which knowingly Ms Young could not apply for given her requirement for flexible working arrangements, the decision to not consider an existing employee with matched skills and experience and working part-time, albeit on a fixed term arrangement, and the selection process of new recruits which in Ms Young’s submissions amounted to the sharing of the role held by her and the part-time retiring teacher. Ms Young submits that in accepting the fixed term contract for the 2019 school year there was a mutual acceptance that employment would be extended, and together with the in-principle agreement struck with the Principal on 21 October 2019 for her return in 2020 with a 0.8 part-time teaching load, the act of retracting the arrangement amounted to a dismissal. She submits that when she was advised of the School’s decision to make the position a full-time role, she was also advised that she would be welcome to apply should her family circumstances change. Such an approach Ms Young submits is contrary to the VPS Diversity and Inclusion Strategy. Further she submits the impact of the School’s decision on her, was so serious that she was unable to work the balance of the contract period.

[31] The Department contests Ms Young’s understanding of her discussions with the Principal of Foster Secondary School. A witness statement of Mr McPhee was tendered which challenged the notion of a mutual understanding that there was a commitment to ongoing engagement at 0.8 into the 2020 school year. Mr McPhee attached to his witness statement various correspondences relating to discussions on this point to demonstrate his understanding of their communications. He further contests Ms Young’s submissions more generally. It is evident that merit is contested, and while I am required to consider merit, it is not required that merit arguments are tested in extension of time proceedings.

[32] The competing contentions of the parties in relation to the merits of the Application are more fully set out in the materials that have been filed. 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 if the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. Therefore, I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[33] 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, Ms Young made submissions concerning the selection process of new teachers and the decision to allow a colleague to drop his hours to part-time, while in her submission the decision had the effect on her to unfairly present the option of full-time work or termination of employment. She submits that such options were inconsistent with the Department’s policy and its priority to provide flexible working arrangements for parents returning to work. The Department did not address this consideration.

[34] I consider that Ms Young’s submissions in response to this consideration relate to merit. This submission in the context of extension of time is unhelpful as merit is contested, and further the Department submits that there has been no dismissal. Both merit and whether there is a dismissal, remain contested. However, the delay in filing is 246 days, not an unsubstantial period. It is rare for an extension to be allowed where the delay is substantial without exceptional circumstances. The timeframe is expected to be complied with. Granting an extension of time without meeting exceptional circumstances is relevant to fairness between persons in a similar situation, therefore in this matter I do not find this consideration in Ms Young’s favour.

Conclusion

[35] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Ms J Young for herself

Ms L. Hilly, Counsel for the Respondent

Hearing details:

2020
Melbourne (by telephone)
16 November

Printed by authority of the Commonwealth Government Printer

<PR724744>

 1 Respondent’s outline of argument -objections at [3].

 2   S.390 of the FW Act 2009.

 3   Applicant’s outline of argument at Q5, Q7, Applicant’s statement of evidence and submissions.

 4   Applicant’s documents attached to outline of argument.

 5   Applicant’s statement of evidence.

 6   Applicant’s statement of evidence, outline of argument and submissions.

 7   Attachments to witness statement of Mr McPhee.

 8   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 9   Ibid.

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 11   Applicant’s form F2 at Q2.1.

 12   Ibid.