Jones v Commonwealth of Australia (Acting through and Represented by the Department of Defence)

[2016] FWC 2579

[2016] FWC 2579

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Susan Jones

v

Commonwealth of Australia (acting through and represented by the

Department of Defence)

(U2015/11300)

DEPUTY PRESIDENT KOVACIC CANBERRA, 22 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances

warranting allowing a further period for the making of an application - application

dismissed.

[1]        Mrs Susan Jones (the Applicant) made an application on 25 August 2015 under s.394

of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by the

Department of Defence (Defence – the Respondent) on 3 August 2015 was unfair.

[2]        On 26 August 2015 the Fair Work Commission (the Commission) wrote to Mrs Jones

indicating that her application appeared to have been made outside the 21 day timeframe

specified in s.394(2) of the Act. The application was made one day outside the 21 day

statutory timeframe.

[3]        The Commission issued Directions on 7 September 2015 requiring the parties to file

an outline of submissions and any evidentiary material they intended to rely on regarding the

extension of time issue. Amended Directions were issued on 14 and 15 September 2015.

[4]        The extension of time issue was the subject of a telephone hearing on 24 November

2015. At the telephone hearing, Mrs Jones appeared on her own behalf, while Ms Jenny

Statton appeared for Defence.

[5]        For the reasons set out below I have concluded that I am not satisfied that there were

exceptional circumstances warranting the granting of a further period for the making of an

application under s.365 of the Act. Accordingly, Mrs Jones’ application will be dismissed.

Background

[6] Mrs Jones commenced employment with Defence on 2 April 2001. At the time of her

dismissal, Mrs Jones was employed as a Level APS4 Finance Officer.
[2016] FWC 2579

[7]        On 13 February 2014 concerns were raised with Mrs Jones about her performance. A

meeting was subsequently arranged with her supervisor and Business Director, when it was

agreed that a weekly work plan for the period February to May 2014 would be developed to

assist Mrs Jones in transitioning into her role.

[8]        On 19 May 2014 Mrs Jones was placed on a Performance Improvement Plan which

continued until 27 June 2014. Mrs Jones subsequently commenced a Performance Evaluation

Process (PEP) on 3 September 2014, with the PEP concluding on 28 November 2014. At the

conclusion of the PEP, Mrs Jones was assessed as unable to meet the requirements of her

position.

[9]        On 29 April 2015 Defence issued a Preliminary View on Determination of Outcome

of Performance Evaluation Process indicating that it proposed to terminate Mrs Jones’

employment for unsatisfactory performance. Mrs Jones was invited to respond within seven

days, though as a result of several requests from Mrs Jones the timeframe for response was

extended until 1 June 2015.

[10]      On 1 July 2015, Mrs Jones’ representative advised Defence that Mrs Jones intended to

resign from her employment effective 19 August 2015. Defence responded noting Mrs Jones’

intention to resign and indicating that her resignation would not affect the performance

management process.

[11]      Mrs Jones was dismissed on 3 August 2015 under s.29(3)(c) of the Public Service Act

1999 for unsatisfactory performance of duties.

[12]      As previously noted, Mrs Jones filed her application on 25 August 2015, one day

outside the 21 day statutory timeframe.

The Relevant Legislation

[13]      Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under

Division 4 granting a remedy.

394(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).

394(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 first person 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

[2016] FWC 2579

(e)	the merits of the application; and
(f)	fairness as between the person and other persons in a similar position.”

Whether to allow a further period for the application to be made under s.394(2)

[14]      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 s.394(3) above. I will deal with each

of those matters separately.

(a) The reason for the delay

[15]      Mrs Jones submitted that her dismissal had had a dramatic impact on her health and

personal life. As to the reason for the delay in lodging her application, Mrs Jones submitted

that she had spoken to the Commission and also a Legal Aid solicitor who both advised her

that she had 21 days after the termination date to lodge an unfair dismissal application.

Mrs Jones contended that she had misunderstood the information provided to her in regards to

this issue. Mrs Jones further contended that she had been given incorrect information as to the

lodgement date. I note that in an email Mrs Jones sent to the Commission on 13 September

2015 she stated that she had been advised by a solicitor from Legal Aid that her application

was due on 25 August 2015.

[16]      Defence submitted that Mrs Jones claimed that incorrect information from Legal Aid

and the Commission resulted in her application being overdue by one day, contending that

Mrs Jones provided no evidence as to why her application was not lodged earlier within the

21 day timeframe. Defence also noted that Mrs Jones’ application was lodged by herself and

not a legal representative and that the letter of dismissal clearly advised of the 21 day

timeframe for lodgement of an unfair dismissal application.

[17]      Mrs Jones provided no evidence to support her claim that she had been provided

incorrect advice as to the due date for her application or to indicate to what, if any, extent her

health may have been a reason for the delay. Miscalculation of the 21 day timeframe is a not

infrequent occurrence. This analysis does not point to the existence of exceptional

circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[18]      It was not disputed that Mrs Jones was aware that she was dismissed on 3 August

2015. 

[19]      I therefore consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[20]      Based on the material before the Commission, it does not appear that Mrs Jones took

any action to dispute her dismissal prior to lodging her unfair dismissal application.

[21]      This does not point to the existence of exceptional circumstances.

[2016] FWC 2579

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

[22]      Mrs Jones did not directly address this factor in her submissions.

[23]      Defence submitted that were an extension of time granted in this case it would become

a precedent in respect of the timeframe for review of future dismissal decisions made by it.

Beyond this, Defence did not directly address this factor in its submissions.

[24]      I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[25]      In her application, Mrs Jones stated that:

 she disputed the views expressed in her termination letter, adding that the decision

maker had not taken into account her previous work performance;

 her performance had not previously been questioned in the 16 years she worked in

Defence;

 her health issue had contributed to the decline in her performance yet these were not

taken into account;

 she advised her supervisors that she was not handling or coping with the pressure

placed on her in her role;

 she advised her supervisors that her position was not for her but they were not

interested; and

 she requested a transfer to another position but was advised there were no jobs.

[26]      In her written submissions, Mrs Jones pointed to the fact that she had been employed

by Defence for almost 16 years, submitting that she had shown that she was more than

capable of performing her duties.

[27]      Defence submitted that in its view there was a valid reason for the termination of

Mrs Jones’ employment, with that reason being her unsatisfactory work performance.

Defence further submitted that Mrs Jones’ underperformance was managed in accordance

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with the provisions of the Defence Enterprise Collective Agreement 2012-2014 . Finally,

Defence denied that Mrs Jones’ dismissal was harsh, unjust or unreasonable in the

circumstances, submitting that her work performance was actively managed over a period of

some 18 months and that the process leading to her dismissal was conducted in a procedurally

fair manner.

[28]      Based on the material before the Commission, the merits of Mrs Jones’ application do

not appear to be strong. This weighs against the existence of exceptional circumstances.

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

[29]      Mrs Jones in her written submissions stated that she was very angry and disappointed

that she had been dismissed because she did not deserve the treatment that had been forced

upon her. Other than that, I note that Mrs Jones did not directly address this factor in her

submissions.

[2016] FWC 2579

[30]      Defence submitted that Mrs Jones had legal representation in the lead up to, during

and after her dismissal, adding that in its view Mrs Jones was advantaged when compared to a

dismissed employee who did not have legal advice. Again, this does not directly address this

factor.

[31]      Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[32]      The question of exceptional circumstances was dealt with by a Full Bench of Fair

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Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(Nulty) in the
following way:

“[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.”

[33]      Having considered all of the factors set out in s.394(3) of the Act, and drawing on the

decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the

granting of further period for the making of an application for an unfair dismissal remedy.

[34]      Accordingly, Mrs Jones’ application will be dismissed. An order to that effect will be

issued in due course.

Appearances:

S. Jones on her own behalf.

J. Statton for the Respondent.

[2016] FWC 2579

Hearing details:

2015.

Canberra (telephone hearing):

November 24.

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AE893129

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(2011) 203 IR 1