Megan Maree Mclaren v Rowing Tasmania
[2025] FWC 48
•9 JANUARY 2025
| [2025] FWC 48 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Megan Maree Mclaren
v
Rowing Tasmania
(U2024/13205)
| COMMISSIONER WILSON | MELBOURNE, 9 JANUARY 2025 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.
This decision concerns an application by Ms Megan Mclaren for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Mclaren’s employment with Rowing Tasmania Inc (Rowing Tasmania) ended on Friday 30 August 2024. Ms Mclaren’s unfair dismissal application was filed in the Fair Work Commission (the Commission) on Monday 4 November 2024.[1]
Section 394(2) of the Act states 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 pursuant to s 394(3) of the Act. The period of 21 days ended at midnight on Wednesday, 17 July 2021. The application was therefore filed 45 days outside the 21-day period. Ms Mclaren asks the Commission to grant a further period for the application to be made under s 394(3).
Rowing Tasmania opposes an extension of time for the commencement of Ms Mclaren unfair dismissal application as well as arguing that she has not been dismissed within the meaning of the Act, having instead resigned. Rowing Tasmania also argue that Ms Mclaren voluntarily resigned her employment and that consequently Ms McLaren has not been dismissed.
This decision considers only the matter of whether an extension of time should be granted to Ms Mclaren.
For the reasons set out below, I am satisfied on the material before me that there are not exceptional circumstances in Ms Mclaren’s case. It follows that I must dismiss her unfair dismissal application.
A determinative conference in respect of the application was held by me on Wednesday, 18 December 2024, at which Ms Mclaren appeared on her own behalf. Rowing Tasmania was represented by Mr Jason Dolbel, a solicitor, with permission for the respondent to be represented by a lawyer pursuant to s 596(2)(a) of the Act. Ms Mclaren gave evidence on her own behalf and Mick Casey, the former Chair of Rowing Tasmania, gave evidence for the respondent. The applicant sought for a witness statement to be allowed into evidence from Renee Brown, a support person who attended a meeting with her, however, I advised her that it would be unnecessary for Ms Brown to give evidence, who in any event did not attend the determinative conference.
BACKGROUND
Ms Mclaren was periodically engaged from 22 February 2021, as a casual barista at Rowing Tasmania’s Lake Barrington facility, to provide services in relation to rowing events. For much of the time since July 2021, Ms Mclaren has also been a director of Rowing Tasmania Inc.
In or around August 2024, Ms Mclaren as well as others in Rowing Tasmania realised the fact that being both a director and an employee was in conflict with Rowing Tasmania’s Constitution. Extracts from the Constitution before the Commission crystallise the problem:
“17.2 Grounds for Termination of Director
In addition to the circumstances in which the office of a Director becomes vacant by virtue of the Act, the office of a Director becomes vacant if the Director:
(a) dies;
(b) becomes bankrupt or insolvent under administration or makes any arrangement or composition with their creditors generally;
(c) resigns their office in writing to the Association;
(d) is absent without the consent of the Board from meetings of the Board held during a period of three (3) months;
(e) ceases to be an ordinary resident in Tasmania;
(f) is an employee of the Association;
(g) is directly or indirectly interested in any contract or proposed contract with the Association and fails to declare the nature of his interest;
(h) in after reasonable consideration by the Board the Board determines the Director has:
(i) acted in a manner unbecoming or prejudicial to the Objects and/or interests of the Association; or
(ii) brought himself or the Association into disrepute;
provided the Director is first given the opportunity to make written or oral submissions to the Board before a determination is made;
(i) is removed by Special Resolution;
(j) after reasonable consideration by the Board it determines the Director has become Incapacitated and the Board reasonably expects the Director will remain Incapacitated for a period exceeding three (3) months,
provided always that:(i) the Director is first given the opportunity to make written or oral submissions to the Board before a determination is made, and that
(ii) any determination made under this clause 17.2(j) shall be made with the Directors acting reasonably and in accordance with clause 17.2; or”[2] (underlining added)
How or why this provision and its connection with Ms Mclaren’s circumstances came to the attention either of her or the Board in August 2024 is not known and is not directly relevant to this decision.
On 27 August 2024, Ms Mclaren wrote to Rowing Tasmania’s Chair, Mick Casey, advising him of a potential conflict of interest on her part. The identified potential conflict was that she was both a casual employee and a director of the same entity. MsMclaren believed that having informed the Board, the potential conflict would be managed including by placing it on a register and that she would continue to hold both positions, as an employee barista and as a director.
The Chair’s response was to seek legal advice, and on the basis of that advice, advised Ms Mclaren on 28 August 2024 that the disclosure to the Board on her part activated the provisions of the above clause. When the Chair responded to Ms Mclaren, he told her that the clause is “a guillotine provision where the Constitution steps in making the determination without any involvement of the Board members”.[3]
Ms Mclaren had been under the impression, from a discussion with the Chief Executive Officer (CEO), Rob Prescott and the then-President, Jim Gibson, that her employment would not be a conflict.[4] There then ensued several pieces of correspondence between Ms Mclaren and Mr Casey, the product of which was final advice from Mr Casey that the former was no longer regarded as a director of the Rowing Tasmania. Mr Casey advised Ms Mclaren that the Board had received legal advice on 28 August 2024, and noted that the earlier advice to her from Mr Prescott and Mr Gibson was wrong and suggested she had two alternatives;
“The view of Jim Gibson and Rob Prescott at the time when you wisely directed their attention to the fact that you were an employee was wrong. Mr Dolbel did look to see if this would be a mitigating factor but the views of two individuals does not override what the Constitution sets out.
The discussion last night was what can be done to correct this outcome?
If you resign as an employee would this revive your Directorship? Unfortunately the Constitution has stepped in and determined an outcome that the Board is not in a position to undo.
The Options
As expected you have every right to challenge the outcome.
1. Legal challenge.
There is a body of law surrounding this issue and the view any challenge would most likely be unsuccessful, but you would need to seek your own advice.
2. Resign
If you resign as an employee, this removes the Constitutional impediment. If you so wish, the Board could turn its attention to clause 16 Appointment of Appointed Director.
If you elect to resign as an employee and wish to continue working as a barista it seems to be possible as a private contractor with an ABN. A private contractor does not fall foul of clause 17.2(f).
I wish to emphasise that you have done nothing wrong and if the shoe was on the other foot I would be feeling greatly offended. While the Constitution has stepped in, the Board is of a mind to address the matter.”[5]
On 30 August 2024, after receiving this advice, Ms Mclaren wrote to a number of people, including the Chair and CEO advising she “will not be seeking reemployment as a Barista at LIBRC for the upcoming season”[6], but also stating she was “open to discussing future options around providing my services under a contracting arrangement with management if the need arises due to filling the role”.[7] Mr Prescott responded a short time later on the same day saying he appreciated Ms Mclaren’s position and agreeing to talk.[8]
Unfortunately for Ms Mclaren, her advice that she would not seek reemployment did not resolve the Board’s concerns. On 31 August 2024, she wrote to the Board expressing her interest in being “reappointed to the Rowing Tasmania Board”[9] under a provision of the Constitution allowing the appointment, rather than election, of directors. On 2 September 2024 Mr Casey responded, refusing to make an appointment to the Board at that time, explaining “A cautionary approach has been adopted as the election process is to recommence afresh, the decision is to wait until the outcome of the ballot”.[10] Also on 2 September 2024, Mr Casey questioned Ms Mclaren about “an outstanding accommodation account I had with Rowing Tasmania”, who responded advising she did not dispute the account and that a payment plan was in place.[11]
Following Rowing Tasmania’s annual general meeting on 31 August 2024, on 18 September 2024 Rowing Tasmania sought nominations from its constituent clubs for new directors. The results of that process would be announced on 4 November 2024.[12]
On 28 October 2024, Ms Tina Maher was elected Chair of Rowing Tasmania.[13] Two days later, on 30 October 2024, Ms Mclaren met with Ms Maher and Mr Beswick, Rowing Tasmania’s public officer and a support person for Ms Mclaren and they discussed her board aspirations.
An email Ms Mclaren sent to a number of people, including Ms Maher and Mr Beswick on 4 November 2024 summarised that in the 30 October meeting she “felt that Tina and Geoff conveyed in a roundabout way that I would not meet the skill set they were seeking in any capacity” and otherwise questioned her qualifications and experience.[14] Shortly after sending this email, also on 4 November 2024, Ms Mclaren commenced an unfair dismissal application in the Fair Work Commission.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Exceptional circumstances have been defined as circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15] Exceptional circumstances may 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 can be considered exceptional.[16]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The Act does not specify whether a particular reason for the delay might tell in favour, or not in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.[17]
Having ended her employment relationship on 30 August 2024, Ms Mclaren explains her late application as being caused by the things she expected to be done in relation to her position as a director of Rowing Tasmania;
“The delay in lodging my application arose from my efforts to address the dismissal directly with Rowing Tasmania. Initially, I was led to believe by the Chair of the Board that my resignation was necessary only as a temporary measure to resolve a constitutional conflict. Based on assurances provided by the Chair, I expected that I would be subcontracted back into my previous role and reinstated to my Board position. This expectation was explicitly conveyed to me by the Chair as a viable solution, and I resigned solely on this basis.
After my resignation, however, I was informed that neither the subcontracted role nor the Board position would be forthcoming. This abrupt reversal has left me in a vulnerable position. My attempts to seek clarification and reinstate the agreed-upon resolution were met with resistance and ultimately left unresolved, prompting me to take steps to file an unfair dismissal claim.”[18]
When Ms Mclaren resigned on 30 August 2024, it was likely under the impression that resignation as an employee would preserve her Board position, however that was contrary to the position communicated by Mr Casey on behalf of the Board on 29 August 2024, when he laid out the options and commented: “If you resign as an employee would this revive your Directorship? Unfortunately the Constitution has stepped in and determined an outcome that the Board is not in a position to undo.”[19] The best that could occur if Ms Mclaren resigned was that she could be appointed as an Appointed Director and then perform barista work as an independent contractor.
By no later than 2 September 2024, the Board had closed off the opportunity for appointment in the short-term as an Appointed Director as its preference was to allow the coming election process to take its course and reconsider director appointments after that process had concluded. Finally, the opportunity for appointment as an Appointed Director was closed off by the newly elected Rowing Tasmania President, Ms Maher, in the meeting they had on 30 October 2024.
Notwithstanding these later events, Ms Mclaren ended her employment on 30 August 2024 when she wrote to Rowing Tasmania that she “will not be seeking reemployment as a barista at LIBRC for the upcoming season.”[20] Ms Mclaren accepts that this communication gave notice to Rowing Tasmania that she was ending her employment relationship. No period of notice was given or, as a casual employee, required to be given, and so the date of effect of her resignation was the day it was given; that is Friday 30 August 2024.
On the basis of the date of effect of her termination being 30 August 2024, the last day for an in-time unfair dismissal application from Ms Mclaren was Friday 20 September 2024. Correspondingly, her application actually being made on Monday 4 November 2024 was 45 days out of time.
The Commission has little insight as to what factors explain the delay in the making of Ms Mclaren’s application, with the delay in question being the period after 20 September and before 4 November 2024.
The Board, through Mr Casey, had earlier been explicit with Ms Mclaren there would be no consideration of Appointed Director positions until after the forthcoming election process which would conclude at the end of October. Ms Mclaren seems to have decided to simply wait that process out and see what it brought, rather than addressing the matter of the end of her employment relationship. The Commission is not aware of any meaningful steps being taken by Ms Mclaren in relation to her termination of employment after 2 September 2024 and before 30 October 2024.
This suggests Ms Mclaren’s priority was her desire to resume a director position with Rowing Tasmania and that the matter of unfair dismissal was only taken up when it was clear no appointed director position would be offered to her.
This circumstance does not provide an acceptable explanation for the delay in the making of Ms Mclaren’s unfair dismissal application. Employment is separate from other relationships one may have with an enterprise, such as being a director of an incorporated entity, as is the case here. In this case, Ms Mclaren resigned her employment (albeit that she says she was forced to do so[21]) after being told her director role was deemed to have ended for reason of the provisions of Rowing Tasmania’s Constitution. Rather than treating these as separate relationships, Ms Mclaren appears to have treated employment as being consequential to the director role (that is, if she became a director again, she could perform work as a barista as well).
In doing so, Ms Mclaren has not actively pursued her claim of unfair dismissal and allowed the application time to simply run out. This does not amount to an acceptable explanation about the filing delay.
In the circumstances, I find that consideration of this criterion leans against a finding of exceptional circumstances and the granting of an extension of time for the filing of Ms Mclaren’s unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
Noting that the respondent objects to whether there was a dismissal, it is nonetheless the case that Ms Mclaren was aware of the date of termination, through her letter of resignation to Rowing Tasmania on 30 August 2024. As such, consideration of this criterion also leans against a finding of exceptional circumstances.
Action taken to dispute the dismissal
There was no action taken by Ms Mclaren to dispute the end of her employment other than through the commencement of this application. She did however explore the possibility of being retained as an independent contractor, by communicating with Rowing Tasmania’s Catering Manager about the possibility; however, nothing came of that approach.
Accordingly consideration of this criterion is a neutral factor in my consideration of whether there are exceptional circumstances for a grant of an extension of time for the making of her unfair dismissal application.
Prejudice to the employer
Rowing Tasmania does not put forward any particular prejudice to it if an extension of time were to be granted, save for the fact that it objects to the characterisation of Ms Mclaren’s end of employment being a dismissal. Consideration of this criterion is also a neutral factor in my overall decision.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[22] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively, whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[23]
Ms Mclaren submits that her resignation came about through misrepresentation by Mr Casey, who she says gave her an assurance her “resignation would be temporary, with a subcontract role to be offered to me for my Barista position and reappointment to the Board essentially being promised to me”.[24] She also submits that reliance on the advice has caused her financial and professional harm and, with respect to the accommodation account that she has been treated unequally in comparison with others.
Rowing Tasmania argue that Ms Mclaren resigned voluntarily and was not dismissed and that in relation to the director position it acted in accordance with its Constitution.
After hearing the evidence and submissions for this matter, a further matter of jurisdiction arises as to whether Ms Mclaren was a person protected from unfair dismissal at the time she made this application. When she resigned, Ms Mclaren had not performed work for Rowing Tasmania since 11 May 2024 and her evidence was that her work was performed around rowing events at Lake Barrington. Section 384 of the Act prescribes the service to be counted toward ‘period of employment’ in order to ascertain whether a person has completed the minimum period of employment (s 383) so as to be a person protected from unfair dismissal (s 382). Those provisions, combined with the intermittent work performed by Ms Mclaren, cause there to be at least a question as to whether Ms Mclaren was a person protected from unfair dismissal or even whether, at 30 August 2024, she was ‘an employee of the Association’ being the relevant disqualifying characteristic set out in clause 17.2 of Rowing Tasmania’s Constitution.
These matters though do not require determination through this decision.
At this stage, the material before the Commission about all these matters associated with the application is at a basic level and so no findings can be made about the parties’ respective prospects.
In finality, I consider these matters to be a neutral factor in my overall consideration of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants, whose applications are either currently before the Commission, or have been decided in the past.[25] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[26]
There is no evidence before the Commission of any person in such a similar position.
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3) of the Act, and all of the matters raised by Ms Mclaren, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of his application for an unfair dismissal remedy.
As a result of this finding, Ms Mclaren’s unfair dismissal application must be dismissed and an order to that effect is issued at the same time as this decision.[27]
COMMISSIONER
Appearances:
Ms M. McLaren, for the Applicant.
Mr J. Dobel, for the Respondent.
Hearing details:
18 December.
2024.
[1] The Applicant is referred to in the source documents as either Megan Mclaren or Megan Lyall. As this application was commenced in the name of Mclaren all references to the Applicant in this decision use that name as well.
[2] Email from Rowing Tasmania Chair (Mick Casey) to Megan Mclaren, 29 August 2024, Digital Hearing Book (DHB), p.18.
[3] Email from Casey, 29 August 2024, Digital Hearing Book (DHB), pp.20 – 21.
[4] Email from Megan Mclaren, 28 August 2024, DHB, p.20.
[5] Casey email, 29 August 2024;DHB, pp.18 – 19.
[6] The abbreviation LIBRC is a typographical error and refers to the Lake Barrington International Rowing Course at which the barista services were provided.
[7] Mclaren email, 30 August 2024, pp.16 – 17.
[8] Prescott email, 30 August 2024; DHB, p.16.
[9] Mclaren email, 31 August 2024, DHB, p.35.
[10] Casey email, 2 September 2024; DHB, p.40.
[11] Mclaren email, 2 September 2024; DHB, p.39.
[12] Applicant’s Outline of Submissions; DHB, p.27.
[13] Ibid, p.28.
[14] Mclaren email, 4 November 2024; p.53.
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975,[13].
[16] Ibid.
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[18] Unfair Dismissal Application, Form F2, item 1.6; DHB, p.10.
[19] Casey email, 29 August 2024; DHB, pp.18 – 19.
[20] Mclaren email, 30 August 2024; DHB, p.16.
[21] Unfair dismissal application, Form F2, item 3.2; DHB, p.12.
[22] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[23] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[24] Unfair Dismissal Application, Form F2, item 3.2; DHB, p.12.
[25] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[26] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[27] PR783117.
Printed by authority of the Commonwealth Government Printer
<PR783041>
0
5
0