Katelyn Gaskin v Transport & Construction Training Institute Pty Ltd
[2022] FWC 2200
•18 AUGUST 2022
| [2022] FWC 2200 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Katelyn Gaskin
v
Transport & Construction Training Institute Pty Ltd
(C2022/3277)
| DEPUTY PRESIDENT LAKE | BRISBANE, 18 AUGUST 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time granted.
Ms Katelyn Gaskin (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Transport & Construction Training Institute Pty Ltd (the Respondent).
The Applicant began her employment on 21 June 2021. The Applicant was dismissed on 6 May 2022. There was no contention surrounding the dismissal date. The Applicant’s position is that she was dismissed and offered continued work opportunities on a subcontract basis. The Respondent’s position is that the Applicant and three other employees were laid off as a result of a significant business decline. The application was lodged with the Commission on 1 June 2022, 26 days after dismissal and five days out of time.
Background
On 6 May 2022, following a significant decline in the number of students that the Respondent had enrolled for training, the Respondent made the decision that he could no longer employ the Applicant and three other employees. The Respondent suggested to the Applicant that she move to a subcontract role. He would then try to source work for her on an ongoing basis. The Applicant rejected the offer as she wanted a stable employment to assist in her application for a housing loan. The Applicant requested that she receive a formal letter of termination from the Respondent, which she received. The Applicant asserts that she is owed a period of notice. The Respondent contends that the Applicant has used up all her annual leave and more, and thus is in a negative balance. There was a matter of superannuation that had not been paid, however this matter was resolved during the hearing.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged her application on 1 June 2022. She accepts that her application was made some five days outside of the 21 days required under s.366(1) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
The Applicant’s submissions
The Applicant’s submissions can be summarised as follows.
The dismissal on Friday, 6 May 2022 was a surprise, and she did not anticipate that her employment would end that day. The Respondent told her not to attend work on the following working day. He proposed that she work on a subcontract basis which she rejected for reasons previously stated. The Applicant was anxious because she was out of a job and has a family to support.
Following the termination, the Applicant requested a termination letter and her entitlement which she says the Respondent refused to pay. The Applicant also commenced job search activities and made an application to Centrelink for assistance. The Applicant also made an application to the Fair Work Ombudsman (the FWO) regarding her termination pay and her superannuation. The Applicant claims that she made the application to the FWO within a week of her dismissal.
There was a discussion with the FWO on 30 May 2022 at which it was suggested that she make a claim to the Commission to recover what she thought she was owed. The Applicant then made an application the following day, filing a general protections application.
The Applicant claims that due to the death of her foster son in March and the sudden nature of the termination, she was quite upset and so she thought that the FWO was the appropriate agency to deal with her matter. She also notes that as soon as she was told by the FWO, she filed the application the following day.
The Respondent’s submissions
The Respondent’s business was struggling. The period during COVID-19 had been difficult but he had kept all the employees on. When it became clear that the business could no longer support the employees, he made the decision to find an alternative to having full-time employees (the business is a small business having 5 employees). The Respondent thought the best way to keep the employees working was to subcontract work to them and in that way, he would only need to pay them when the work was available. The Applicant rejected this and wanted a letter of termination which he provided.
The discussions with the FWO indicated that the Applicant had been employed for less than a year and she was only entitled to one week’s notice. The Applicant had an arrangement to leave work early and the Respondent thought this should be deducted off her annual leave balance, the Applicant disagreed.
The Respondent stated he has an open offer of two weeks’ pay to the Applicant.
The Respondent stated that he had found the Applicant work almost immediately. He noted that three other employees were in the same position and only one took the subcontracting offer. The others went to work with competitors. One of the three employees was kept on and left in a week after being kept on.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The reason for the delay was that the Applicant was pursuing her matter through a different Agency and until she had discussions with the FWO, she did not understand the differences in the organisations. The Applicant in her mind was actively pursuing a claim. Once she was advised to make the claim through the Commission, she did so and applied within one day.
I am satisfied that she thought the appropriate application had been lodged and that she was pursuing her claim, I find that making an application of this nature may lend itself to confusion between how to prosecute the claim.
Given the Applicant’s circumstances I weight this factor as supporting an extension of time.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant disputed that the business was in decline but could not substantiate that assertion. The Respondent stated that three other employees were affected, and without further evidence, I am inclined to be satisfied that there was a genuine reason for the dismissal. The Applicant did not dispute the dismissal but rather the quantum she was owed as a result of the dismissal.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. However, the Applicant has yet to identify what the workplace right was that she had and how that links to her dismissal. I do not see on the material I have heard that there is much strength in the Applicants General Protections claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that exceptional circumstances exist in this matter.
Pursuant to section 366(2) of the Act, the extension of time is granted. The Applicant’s Application will be progressed by way of a conference in the coming week. I Order accordingly.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
Printed by authority of the Commonwealth Government Printer
<PR744943>
0
0
0