Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy

[2017] FWC 3090

[2017] FWC 3090

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Kelly
v
The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy
(U2017/1996)

DEPUTY PRESIDENT DEAN SYDNEY, 22 JUNE 2017

Application for an unfair dismissal remedy – jurisdiction – application for extension of time - minimum employment period.

[1] On 14 June 2017 I made a decision to refuse an extension of time for Ms Kelly to file her application pursuant to s.394 of the Fair Work Act 2009 (the Act). I now publish the reasons for my decision.

Background

[2] Ms Kelly was employed by The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy (The Alphabet Academy) until she was notified of her dismissal on 5 December 2016, with immediate effect.

[3] On 15 December 2016 Ms Kelly’s representative filed on her behalf an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that the termination of Ms Kelly’s employment was in breach of the general protections provisions of the Act. The general protections application was the subject of conciliation by telephone on 15 February 2017 (the Conciliation) and the matter was not resolved. On 24 February 2017, the Commission received a Notice of Discontinuance withdrawing the general protections application and an application for an unfair dismissal remedy pursuant to s.394 of the Act was filed on Ms Kelly’s behalf. The application was lodged some 60 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] The Alphabet Academy objected to Ms Kelly’s application on the basis that it was made out of time and that Ms Kelly’s employment did not meet the minimum employment period. The matter was listed for hearing by telephone on 14 June 2017 to determine the jurisdictional objections. At the hearing, permission pursuant to s.596 of the Act was granted to Mr Scott Hall-Johnston to appear on behalf of Ms Kelly. Ms Krystina Francica appeared on behalf of The Alphabet Academy.

Extension of time

[5] Section 394(3) of the Act provides:

(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.

[6] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed 1.

[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 2 where 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.”

[8] In reaching my conclusion I have considered each of the provisions of s.394(3) of the Act.

Reason for the delay

[9] Representative error was given as the reason for the delay.

[10] It was submitted that Ms Kelly’s solicitors filed the incorrect application, that being the general protections application, and that the error was not due in any part to Ms Kelly. Mr Hall-Johnston provided a statement to the effect that he took instructions from Ms Kelly to seek compensation relating to the termination of her employment. He stated that he arranged the general protections application to be filed on 15 December 2016, within the required timeframe. Mr Hall-Johnston stated that during the Conciliation he became aware that the incorrect form had been filed, and that an application for unfair dismissal should have been filed. The general protections application was subsequently withdrawn and an application for an unfair dismissal remedy was filed on 24 February 2017.

[11] Ms Francica contended that at the Conciliation, Ms Kelly’s solicitors confirmed it was their intention to pursue a general protections application, and there was no suggestion by Ms Kelly’s solicitors throughout the Conciliation that the application had been incorrectly made.

[12] The general approach of the Commission where representative error is relied upon to explain the late lodgement of an application has been considered by a number of Full Benches. The following general propositions, summarised by the Full Bench in Davidson v Aboriginal and Islander Child Care Agency, 3 should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

a. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

b. A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

c. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

d. Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[13] In this case, I am prepared to accept that representative error is a credible reason for period of the delay between 26 December 2016, being the date any application was due to be made within time, to the date of the Conciliation.

[14] I am not satisfied that there was a credible reason provided for the delay between the date of the Conciliation and the date the unfair dismissal application was made, being a period of some eight days. The submissions on behalf of Ms Kelly in relation to this time period were to the effect that the parties were granted seven days by the conciliator to continue settlement discussions, and it was reasonable to allow this to occur before lodging a new claim.

[15] Upon realising that an incorrect application had been made, it was incumbent on Ms Kelly (or her solicitors on her behalf) to act swiftly in making the correct application. I do not consider eight days in these circumstances to be a reasonable period of time, where the circumstances involve Ms Kelly being represented by a solicitor. Had the correct application been lodged swiftly, I would have considered that there was a credible reason for the whole of the period the application was delayed. Overall, this weighs against granting an extension of time.

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

[16] There is no dispute that Ms Kelly was advised of her dismissal on 5 December 2017. In this case, this is a neutral consideration in determining whether an extension of time ought to be granted.

Any action taken by the person to dispute the dismissal

[17] The general protections application was filed on Ms Kelly’s behalf on 16 December 2016, within 21 days of the date of her dismissal. There was no other evidence of any action taken by Ms Kelly to dispute her dismissal. Overall, this weighs modestly in favour of granting an extension of time.

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

[18] I am not persuaded that granting an extension of time would result in a prejudice to the Alphabet Academy. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[19] For the purpose of determining whether to grant an extension of time for Ms Kelly to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁴

[20] The material before me on the merits of the application is limited.

[21] Ms Kelly claims that the reason for dismissal was not valid and summary dismissal was harsh, unjust and unreasonable. The circumstances surrounding her dismissal involved the taking of photographs during an end of year ‘graduation ceremony’ for the preschool children who were leaving to go to primary school the following year. The photographs in question were forwarded electronically by Ms Kelly to a former employee. Ms Kelly argued that summary dismissal for breach of the employer’s social media and privacy policies was not warranted.

[22] Ms Francica submitted that she had made it very clear to all employees when she took over the centre in July 2016 that any breach of privacy would result in ‘instant dismissal’, as there were children at the centre who were on a ‘private roll because they needed to be protected’. She explained the process she followed in investigating the incident and making the decision to dismiss Ms Kelly. This included referring to the Small Business Fair Dismissal Code prior to Ms Kelly’s dismissal, and consulting with ‘Fair Work’.

[23] On the material before me, I am unable to make a final determination of the merits in this matter. However my view based on the material before me is that Ms Kelly does not have a strong case. I consider that this weighs against a finding of exceptional circumstances.

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

[24] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’6

[25] I do not consider that there are other relevant persons in a similar position to Ms Kelly, and I therefore find it to be a neutral consideration.

Conclusion

[26] I have considered all of the matters to which my attention is directed by the Act.

[27] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Kelly are not out of the ordinary course, unusual, special or uncommon. On this basis, I uphold The Alphabet Academy’s jurisdictional objection and dismiss the application.

[28] Given my decision to uphold this jurisdictional objection, is not necessary for me to deal with the issue regarding the minimum employment period.

[29] An order to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

S Hall-Johnston for Lisa Kelly.

K. Francica for The Alphabet Academy.

Hearing details:

2017.

Brisbane (by telephone):

June 14.

 1   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 2   [2011] FWAFB 975.

 3 (1998) 105 IR 1

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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