Joyce Lewis-Affleck v Principals Australia Institute

[2015] FWC 6855

[2015] FWC 6855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joyce Lewis-Affleck
v
Principals Australia Institute
(U2015/10903)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Joyce Lewis-Affleck alleged that the termination of her employment by Principals Australia Institute on 30 June 2015 was unfair.

[2] Her unfair dismissal application lodged on 11 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Lewis-Affleck’s employment ended on 30 June 2015 whilst she was on annual leave. She was out of Australia from 10 June 2015 until 12 July 2015. She had accepted that she had not been reappointed to her position because she assumed that there was insufficient money to fill the positions. On 16 July 2015 she found out that other staff were not offered positions. On 22 July 2015 she found out that the Institute was advertising positions externally which she had previously been employed in. It was her evidence that up to then, she had been unhappy with what had happened but she did not believe she had cause for unfair dismissal. She said that as at 22 July 2015 she took action to make this application.

[6] Mr Stephen MacDonald, a former Manager at the Institute, gave evidence that on 22 July 2015 he spoke to Ms Lewis-Affleck about the unfair dismissal process and that he believed there was a 21 day time frame and that it might already be over. He met her again on 28 July 2015 and again spoke to her about unfair dismissal. On that day, she met with the Deputy Chair of the Institute who confirmed that the Institute had received sufficient funding.

[7] Despite this, Ms Lewis-Affleck did not file her application until 11 August 2015. Her explanation for this delay was that she thought the 21 days would run from 22 July 2015, when she found out that there were positions she could have been offered.

[8] I accept that Ms Lewis-Affleck had a reasonable explanation for the delay in lodging her application until 22 July 2015. She was out of the country until 12 July 2015. I accept that in the circumstances she was in a similar position to employees who have been made redundant who only become aware that it was not a genuine redundancy when they find their position advertised. She was unaware that there were still vacant positions until 22 July 2015. However, at this time she was told there was a 21 day time limit to lodge her application and she took no steps to lodge her application. She took no steps to inquire about whether the 21 days ran from that date. It is well established that the 21 days applies from the date the dismissal took effect and Ms Lewis-Affleck knew the dismissal took effect on 30 June 2015. Her ignorance of this is not unusual.

[9] I do not consider that Ms Lewis-Affleck had a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.

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

[10] Ms Lewis-Affleck was aware of the dismissal when it took effect. She was out of the country until 12 July 2015 and not in any position to lodge her application. I consider this criterion to be neutral.

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

[11] Ms Lewis-Affleck did not dispute her dismissal at the time. On 23 July 2015, she emailed the Institute to ask for an explanation of why she was not offered another position. She met with the Deputy Chair of the Board to ask about why she had not been offered another position but he had no explanation. It is not clear that Ms Lewis-Affleck put on either occasion that she was an ongoing employee and that the Institute had no right to dismiss her. I consider this criterion to be neutral.

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

[12] There was no evidence of any prejudice to the employer. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[13] In making an assessment of the merits of the application I make no judgment about the fairness of what occurred to Ms Lewis-Affleck.

[14] Ms Lewis-Affleck was employed on a series of contracts commencing in September 2010. All bar one contract was for the position of project officer. While one had been for a co-ordinator position, the last contract was for a project officer position.

[15] Each contract was offered prior to the expiry date of the previous contract. The last contract signed by Ms Lewis-Affleck contained a termination clause which entitled either party to terminate the contract on notice for any reason. The contract also provided that the employment automatically terminated without any obligation on either party to provide notice. Further, it provided that Ms Lewis-Affleck acknowledged that the employment will terminate at the end of the term and she had no expectation of ongoing employment after the term.

[16] Ms Lewis-Affleck submitted that she had ongoing employment because the funding for the project she worked on was in place for 15 years and there was a history of the contracts rolling over when funding was secured. It was her evidence that at the meeting on 15 May 2015, it was made clear to project based staff such as herself that their positions would be continued. She submitted that she was encouraged to continue to make arrangements for events and appointments after 30 June 2015 and her annual leave for July had been approved. Further, only a small number of project staff were not carried over. It was her evidence that with each new contract all entitlements were rolled over and the situation faced by the Institute was no different in 2015 to previous years.

[17] It was her evidence that she applied for three positions and was told she was unsuccessful in obtaining any position. Subsequently, positions were advertised which she had previously held. She said she was given no explanation as to why she was not offered continued employment despite requesting information. She said that at no time was her performance ever questioned. She said her performance reviews showed that her managers were extremely satisfied with her performance. This was not disputed by the Institute.

[18] Ms Ablett, on behalf of the Institute, claimed the positions were different, but apart from a specific reference to cultural awareness, was not able to articulate what the differences were.

[19] The Institute submitted that Ms Lewis-Affleck had not been dismissed as her employment ended in accordance with her contract. There was no dismissal at the initiative of the employer. It submitted that it uses fixed term contracts because it is heavily reliant on government funding which is confirmed on an annual basis. Ms Ablett said that approximately 20 employees were not offered a new contract.

[20] In Kumar v Principals Australia Institute 2 I found as follows:

[21] On the current state of the evidence, Ms Kumar’s employment ended on 30 June 2015 because her employment contract had expired. There was no basis on which I could conclude that the contracts were used to avoid the Institute’s obligations under the Fair Work Act 2009. 3 Ms Kumar’s employment was not terminated on the employer’s initiative. As such, Ms Kumar was not protected from unfair dismissal.

[21] Ms Lewis-Affleck’s position is similar to Ms Kumar. Her employment ended in the same circumstances. In this case, Ms Lewis-Affleck has submitted that she has an ongoing employment relationship independent of the contracts she has signed. Such was the finding of the Commission in Smith v Mareeba RSLA Service Club Inc. 4 The factual situation in that matter was significantly different to the one before me. As these submissions were not fully argued it is not appropriate for me to determine this matter at this time. However, on its face, Ms Lewis-Affleck’s claim does not appear to be strong. I consider merits to be a neutral consideration.

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

[22] Ms Lewis-Affleck submitted that it would be unfair not to grant her an extension of time because other employees have received compensation as a result of what happened. I do not consider that this is a relevant consideration.

Conclusion

[23] I do not consider that there are exceptional circumstances. While Ms Lewis-Affleck had a reasonable explanation for part of the delay, her failure to lodge her application immediately upon becoming aware of the vacancies was not reasonable. She was advised that there was a time limit and she knew it had passed yet she took no steps to get advice about whether she had a further 21 days. Her ignorance of how the time limit applied is not unusual. While I have not found that her claim is without merit, this is not a case where the strength of her claim outweighs her lack of a reasonable explanation for the whole of the delay. The lack of prejudice to the employer by itself is not a basis for finding there are exceptional circumstances.

[24] Ms Lewis-Affleck’s application for an extension of time is dismissed and her unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms J Lewis-Affleck on her own behalf.

Ms S Ablett for the Respondent.

Hearing details:

2015.

Melbourne, Perth and Adelaide (telephone link):

October 1.

 1   [2011] FWAFB 975.

 2   [2015] FWC 6327.

 3   S.386(3).

 4   [2013] FWC 351.

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