Jesmin Singh v Carpentaria Disability Services Inc

[2014] FWC 8123

[2014] FWC 8123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesmin Singh
v
Carpentaria Disability Services Inc
(U2014/1883)

COMMISSIONER WILSON MELBOURNE, 17 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdictional - whether there has been a dismissal; whether an extension of time should be granted.

Introduction

[1] Jesmin Singh has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mrs Singh’s application relates to the termination of her employment by Carpentaria Disability Services Incorporated on or around 13 April 2014, and was lodged in the Commission on 27 May 2014.

[2] The matter was first allocated to Commissioner Steel, who issued Directions to the parties in June, and was later the subject of a conference before me on 28 August 2014 for the purposes of discussion of the subject of whether Mrs Singh was dismissed, and if so, the date on which that occurred, and depending on the answer to that question whether an extension of time should be allowed for the making of her application. In addition to being given an opportunity to provide written material before the date of that conference and to provide such material as they wished in the course of the conference, the parties were each given an opportunity to provide additional material after the date of the conference for my consideration.

[3] Section 394(2) of the Act provides 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. The 21 days for lodgement does not include the date that the dismissal took effect and if the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business. 1 This means an unfair dismissal application relating to a dismissal that took effect on Sunday 13 April 2014 would need to be lodged with the Commission no later than Monday 5 May 2014 in order for it to be within time.

[4] This matter is somewhat unusual and stands in distinction from many other unfair dismissal extension of time matters for two reasons;

• Firstly, a question arises as to whether or not Mrs Singh has been dismissed by Carpentaria Disability Services, which is an objection raised by the organisation when it was allocated to Commissioner Steel;



• Secondly, in correspondence from Carpentaria Disability Services to the Fair Work Commission the organisation’s Chief Executive Officer, Greg McMahon, indicated that he did not object to the Fair Work Commission extending the time for lodgement by the applicant.

[5] The question of whether or not there has been a dismissal presents as a result of correspondence from Carpentaria Disability Services to Mrs Singh on 4 April 2014, which at the very least, changes Mrs Singh’s employment status with the organisation. Mrs Singh’s application for unfair dismissal remedy indicates she worked for Carpentaria Disability Services as a Disability Support Worker, and that she had done so since 2011. On 4 April 2014 Carpentaria Disability Services’s Chief Executive Officer, Greg McMahon, wrote to Mrs Singh raising with her that she had failed to complete training and competencies for a Certificate 3 Community Services (Disability). The correspondence records some history of discussing this issue with Mrs Singh with the correspondence critically recording the following;

“CDS is unable to wait any longer for you to either enrol, or complete this training as a condition of your ongoing employment. All other support staff have enrolled and are attending classes.

Therefore you will be placed on the casual pool of support staff until this requirement has been completed at your own expense. This change in employment status will take effect from Monday 13th April, 2014. Your status of employment may be re-assessed once you have obtained the appropriate qualifications”. 2

[6] Submissions filed by Carpentaria Disability Services in the course of preparation for this decision confirms that the organisation ceased offering shifts to Mrs Singh submitting that;

“Carpentaria (CDS) has had no option but to cease offering Mrs Jesmin Singh shifts at CDS as she is not qualified to perform the work that she wishes to perform. It was highlighted to Mrs Singh in October 2012 that she had misinformed CDS of her qualifications and it was her responsibility to arrange and finance an upgrade in qualifications. While CDS may fund professional development activities for staff it is not always in a position to pay for its staff to acquire basic and essential qualifications. There is an expectation on all staff at CDS to either commence or finalise their Cert 3 in Disability once they commence employment. However as the attached email of 30 September 2013 shows that CDS did acquire funding for staff to complete the Cert 3 in Disability but Mrs Singh did not take this offer up even though she was expected to.

CDS contends that it is unable to provide Mrs Singh with any shifts as she does not have the basic qualifications to perform the tasks. This is different to dismissal and no subjective judgement was needed in this case. It is CDS’ duty of care responsibility to ensure that our clients have qualified staff attending to them. It was Mrs Singh’s refusal over 18 months to upgrade her qualification that lead to her not being offered casual shifts. CDS was very generous and accommodating to Mrs Singh who flatly refused to accept her responsibility to acquire the necessary qualifications.

In regard to Mrs Singh’s contention that CDS should fund her qualification this is simply incorrect. CDS funds some professional development for staff within its budget but it does not have a practice of funding basic and essential qualifications unless special funding is obtained. This did happen in 2013 but as mentioned above Mrs Singh did not take the offer up. CDS does provide some assistance to staff who are undertaking this Cert 3 and Mrs Singh has been offered assistance in the past but has refused to accept it. In fact as late as 18 June Mrs Singh was advised that there was funding by NT Government for her course. Despite all this advice, and the fact that Mrs Singh was given plenty of time to upgrade her qualification, she has taken no action”. 3

[7] Section 396 of the Act requires the Commission to determine certain initial matters before considering the merits of an unfair dismissal application. Although it is not strictly necessary for me to consider whether Mrs Singh was a person protected from unfair dismissal, the evidence would lead to such a conclusion. At the time of dismissal she had worked for Carpentaria Disability Services for a period of over three years and the material on the file indicates that her remuneration was drawn from an enterprise agreement, the CDS Enterprise Agreement 2012 – 2014.

[8] Particularly relevant to the considerations within s.396(a) of the Act is whether Mrs Singh’s application was made within the time allowed for the making of applications, being a period within 21 days after the dismissal took effect. In order to consider that matter, or in order to consider an extension to the period allowed for the making of applications, I must also decide whether she has been dismissed, and when that dismissal occurred.

[9] For the reasons I now set out, I find that Mrs Singh was dismissed on 4 April 2014 and that the dismissal took effect on 13 April 2014.

[10] The meaning of “dismissed” is set out in s.386(1) of the Act, which provides the following;

“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.”

(subsections (2) and (3) are omitted)

[11] The material contained on the file, confirmed by the parties in discussion in the conference, shows the following;

• Mrs Singh was first employed by Carpentaria Disability Services in 2011. While there is a factual difference between the parties about the actual date of commencement, resolution of that subject is not required for determination of the issues that must be decided in this matter. Mrs Singh’s Unfair Dismissal Application refers to a commencement date of 21 January 2011 and Carpentaria Disability Services’s Employer Response Form refers to 21 November 2011 as the date on which the Applicant began working with them.



• Mrs Singh was employed as a Disability Support Worker and is described as having been “permanent full time” at the time of her dismissal. 4



• While initially employed as a Level 3 Support Worker, Mrs Singh’s employment classification was changed to a Level 2 Support Worker, which is described by Carpentaria Disability Services as “demotion”. 5 The date on which this change occurred has not been disclosed. The references to classification levels refer to classifications within the CDS Enterprise Agreement 2012 - 2014.6



• The correspondence from Carpentaria Disability Services to Mrs Singh on 4 April 2014 indicates a dispute between the parties about the certification she needed for ongoing employment and her attendance at training to achieve what Carpentaria Disability Services said was necessary certification. The correspondence concludes with the reference above about Mrs Singh being placed in the casual pool and a change being made to her employment status.

[12] It was clarified by Mr McMahon for Carpentaria Disability Services in the conference held on 28 August 2014 that when he wrote to Mrs Singh on 4 April 2014 indicating she would be placed in the casual pool of support staff until she had completed requisite training, he intended that it was likely that Mrs Singh would either have no or very few shifts offered to her following that point.

[13] Attached to Mrs Singh’s Unfair Dismissal Application is a letter from Mr McMahon, the Carpentaria Disability Services CEO, dated 4 April 2014 which relates that Carpentaria considered Mrs Singh to be in breach of its Code of Conduct for reason of having failed to complete a required certificate, the Certificate 3 in Community Services (Disability).

[14] The letter relates a history of this having been raised with Mrs Singh since September 2012 and that she had refused to enrol in the required training, including for the reason that she intended to return to live in New Zealand in 2014. The letter also indicates that part of the history included Mrs Singh being demoted from a Level 3 support worker to a Level 2 Support Worker, apparently also in 2012, and that she remained on Level 2 until the time her employment ended. The correspondence also records that the 2012 demotion was for the reason “that all support staff must have a minimum Certificate 3 in Community Services. You have been advised by CDS Management to role in Certificate 3 Community Services (Disability). This has not occurred and has been an issue going forward.” 7

[15] The tone of the April 2014 correspondence, read objectively in the context of the history of Mrs Singh’s employment, would have left her with little doubt that she would not be receiving shifts into the future at the same level that she had previously enjoyed.

[16] I am satisfied, in all the circumstances, it was reasonably apparent to Mrs Singh, by at least 13 April 2014, that her contract of employment, as it existed at the time, was at an end. At the time, this contract consisted of employment by Carpentaria Disability Services as a permanent employee, classified at Level 2.2 of the organisation’s enterprise agreement. 8 At the very least, it would have been apparent to Mrs Singh, at the time of receiving the letter or shortly afterwards that she was no longer going to be employed on an ongoing basis. I consider that a reasonable person reading the letter and with knowledge of Mrs Singh’s employment history and circumstances would have viewed the letter as communicating that instead of receiving ongoing work, she would no longer have any fixed entitlement to hours, and that the amount of time she worked for Carpentaria Disability Services in the future, if at all, would be dependent on the combination of completion of the training that had been asked of her and the availability of shifts.

[17] An objective consideration of facts leads to the findings, which I make, that;

• Mrs Singh was dismissed from employment on or around 4 April 2014, with the date of effect of her dismissal being 13 April 2014; and



• Mrs Singh was aware of this at the time, and that this is not a circumstance where she became aware at some later time that she had been dismissed.

[18] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:

“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.

[19] Notwithstanding that a Respondent consents to an extension of time being allowed, the requirements of s.394(3) on the Commission are mandatory - the Commission may allow a further period IF it is satisfied there are exceptional circumstances.

[20] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.  9

[21] The Commission is required to assess whether or not the six nominated criteria either individually or combined amount to “exceptional circumstances”.

[22] As referred to previously, Mrs Singh made her application for unfair dismissal remedy and 27 May 2014 with her dismissal taking effect on Sunday, 13 April 2014. The period of 21 days from the date that the dismissal took effect is Sunday 4 May 2014 meaning that the last day the making of an application would be the following day, Monday 5 May 2014. 10 The fact that Mrs Singh’s application for unfair dismissal remedy was made on 27 May 2014, means through the combination of the last date for filing, together with the date of actual filing, that her application was made 22 days out of time.

(a) the reason for the delay;

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

[23] The first two criteria set out within s.394(3) of the Act relate to the reason for the delay and whether the person first became aware of their dismissal after it had taken effect (ss.394(3)(a) and (b)).

[24] Mrs Singh’s submissions to the Commission include that initially she did not think that she had been dismissed from her job saying that this was because “Carpentaria has done this to me before where they demoted me to level 2 but gave me shifts” and that she believed Mr McMahon may have intended to give her shifts. 11 Mrs Singh also says that she was stressed and depressed as a consequence. She also submits that initially she had no knowledge of there being a timeframe to the making of an application for unfair dismissal remedy and that she was only told this by an organisation which I infer to be the Northern Territory Working Women’s Centre.

[25] The submissions include that she waited for about a month, around which time she emailed Mr McMahon, whose response indicated that he was not going to give her any more shifts; and it was at that point that she decided to contact the NT Working Women’s Centre who gave her advice not only about her employment status but also how an unfair dismissal application could be made. The material filed by Mrs Singh indicates that after a period of time, of about one month, she approached the NT Working Women’s Centre about what she could do, and it seems likely that the prospect of making an unfair dismissal claim against Carpentaria Disability Services only became an option for Mrs Singh after discussion of her circumstances with the Centre. While it also appears likely that in the period between 13 April 2014 and the time that she visited the NT Working Women’s Centre, Mrs Singh was distressed about her circumstances, there is no evidence that would suggest her level of distress rose to the point at which she was impeded from progressing to obtain advice about her rights and entitlements.

[26] As a result, I find in respect of s.394(3)(a) of the Act that the reason for Mrs Singh’s delay in filing her application is that she was purportedly unaware of her termination or her rights to seek a remedy for unfair dismissal until she consulted with the NT Working Women’s Centre about a month after the date on which the termination occurred.

[27] Relevant to my consideration of this reason is whether it is an explanation for the whole of the period of the delay. In this regard, I take into account that Mrs Singh’s attendance at the Working Women’s Centre would have been in mid-May, perhaps two weeks or so prior to the date on which the application for unfair dismissal remedy was made. Bearing in mind that an application, for it to be within time, would need to have been made by Mrs Singh on or before 5 May 2014, the period of the delay to which s.394(3)(a) refers, is to the period between 5 May and 27 May, a period of slightly over three weeks.

[28] Within the context of that range of dates, the delay is more properly explained firstly as a period in which Mrs Singh sought and obtained advice from the NT Working Women’s Centre (perhaps of about half the whole period), and secondly with the balance of the period being the time it took for Mrs Singh to consider her rights after receiving advice from the Centre and to initiate her application.

[29] Other than the matters referred to in respect of the period of delay, I do not have clarity as to how the period of delay may be broken down or when particular steps were taken in the period.

[30] As referred to above, and relevant to s.394(3)(b) of the Act, Mrs Singh’s termination of employment was not a situation where she only became aware of the dismissal sometime after the date that it took effect.

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

[31] In relation to s.394(3)(c) of the Act, a consideration of whether there was any action taken by the dismissed person to dispute their dismissal, I find that the only action taken by Mrs Singh was her attendance at the NT Working Women’s Centre about one month after 13 April and her subsequent filing of an application for remedy for unfair dismissal, filed on 27 May 2014.

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

[32] Section 394 (3) (d) requires consideration of the prejudice to the employer (including prejudice caused by the delay) were an extension of time for the making an application to be granted to Mrs Singh.

[33] Although the Commission recognises that the making an application for unfair dismissal and the need for a former employer to respond to the application will, of itself, have some prejudice to the employer, there is also a recognition that the consideration in s.394(3)(d) is a consideration of whether further prejudice accrues to the employer where an extension of time is granted.

[34] In Mrs Singh’s case, she relocated from Darwin to Sydney after May 2014 and sometime before the date of the conference in August 2014.

[35] I consider this to be a factor that needs to be taken into account in respect of the potential prejudice to the employer in respect of the making of this application for an unfair dismissal remedy. The conduct of a hearing in relation to the matter would be slightly more difficult than would otherwise be the case if the matter were to be dealt with in Darwin, for the reason there would be a need to adduce evidence from Mrs Singh with her in Sydney and the Respondent in Darwin. While the difficulties associated with such a factor will be minor, it is nonetheless a factor to be taken account of.

[36] Other than that circumstance, I am not aware of there being any other prejudice to the employer if an extension of time for the making an application were to be granted.

(e) the merits of the application;

[37] The fifth criterion to be taken account of in considering an extension of time is s.394(3) (e) which requires a consideration of the merits of the application made by Mrs Singh, on the basis of the limited information and evidence available to the Commission at this time. My consideration of all the submissions and evidence provided by the parties in this matter is that Mrs Singh will face some difficulty in demonstrating that the employer did not have a valid reason to terminate her.

[38] I have arrived at this assessment for the reason that the evidence on the file, together with my discussion with the parties in conference, indicates that there was a considerable period of time over which the matter of obtaining training and certification was discussed. It appears, on the basis of what I have seen so far, that Carpentaria Disability Services was within its rights to make such request of Mrs Singh; that it gave her an opportunity to obtain the training and certification it required; and that she failed and refused to do so, despite it being apparent to her, through the demotion in classification that occurred in 2012, that her lack of certification at the requisite level was of considerable concern to Carpentaria and something which could not be condoned.

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

[39] Lastly s.394(3)(f) of the Act requires me to consider the question of fairness as between Mrs Singh and other unfair dismissal applicants in a similar position to her. I consider that, in relation to Mrs Singh, it would be unfair to other unfair dismissal applicants who had no or limited reasons to explain the delay in making an application to the Commission, to grant an extension of time to Mrs Singh when they may not be able to obtain such an extension themselves.

Conclusion on the criteria in s.394(3)

[40] As a result of the foregoing analysis, I am not satisfied there are exceptional circumstances that would allow a further period to Mrs Singh for the making of her application for unfair dismissal remedy.

[41]
Because I am not satisfied of there being exceptional circumstances I must now dismiss Mrs Singh’s application. An Order to that effect is issued at the same time as this decision.

COMMISSIONER

 1   See Acts Interpretation Act 1901 (Cth) s.36(1) and (2); Hemi v BMD Constructions Pty Ltd[2013] FWC 3593

 2   Letter dated 4 April 2014, reproduced at item 3.2 of the Form F3 - Employer Response to Unfair Dismissal Application dated 10 June 2014.

 3   Letter dated 25 June 2014, entitled ‘Statement by Respondent as required by 25 June 2014’.

 4   Form F3 - Employer Response to Unfair Dismissal Application dated 10 June 2014, item 1.5

 5   Letter from Carpentaria to Mrs Singh dated 4 April 2014, attached to Form F2 - Unfair Dismissal Application

 6   Form F3 - Employer Response to Unfair Dismissal Application dated 10 June 2014, item 1.1

 7   Letter from Carpentaria to Mrs Singh dated 4 April 2014, attached to Form F2 - Unfair Dismissal Application

 8   Form F3 - Employer Response to Unfair Dismissal Application dated 10 June 2014, item 1.5

 9   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 10   See Acts Interpretation Act 1901, s.36 (2)

 11   Email from the Applicant to the Fair Work Commission dated 18 June 2014

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