Ms Despina Drakoulis v TAFE Online Pty Ltd
[2022] FWC 895
| [2022] FWC 895 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Despina Drakoulis
v
TAFE Online Pty Ltd
(U2022/1076)
| COMMISSIONER JOHNS | MELBOURNE, 29 APRIL 2022 |
Application for relief from unfair dismissal – whether to extend time for lodging the application.
Introduction
This decision is about whether the Fair Work Commission (Commission) should allow the Applicant, Despina Drakoulis (Applicant), a further period for lodging her unfair dismissal application.
The issue of the need for the granting of an extension of time was put clearly in issue by TAFE Online Pty Ltd (Respondent).
The Applicant contended that her application was not late. On 11 February 2022 the Respondent contended, in the alternative, that if there had been a cessation of employment it occurred on 31 December 2021 and therefore the application was out of time. In its submission on 24 March 2022 the Respondent expanded upon the out of time contention. Although being provided with every opportunity to do so, when the Applicant filed her submissions of 7 April 2022, she did not engage with the out of time issue. I am satisfied that the Applicant was put on notice about the out of time issue and had a fair opportunity to address it.
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
The relevant circumstances are as follows:
a) for the reasons I explain below, the employment ended with the Respondent on 31 December 2021;
b) the completed F2 application lodged on 25 January 2022,
c) the unfair dismissal application was, therefore, filed 25 days after the employment ended;
d) consequently, the unfair dismissal application was filed 4 days after the 21 day time limit provided for in the FW Act.
In her F2 application the Applicant did not acknowledge that her application was filed late. This is because she claimed that the employment ended on 24 January 2022. I explain below why that conclusion is wrong.
The jurisdictional objection
On 1 February 2022, as an alternative argument, the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the employment ended (it did not concede that the employment ended at the initiative of the Respondent).
The Respondent also contended that:
a) the Applicant was not dismissed;
b) the Applicant is still employed;
c) any ending of the employment relationship was not at the initiative of the Respondent; and
d) in any event, the Applicant has not completed the qualifying period as a casual employee.
On 10 March 2022 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.
The following materials were filed:
| Exhibit | Document title | Document date |
| 1 | Form F2 | 25 January 2022 |
| 2 | · Attachment 1 | |
| 3 | Form F3 | 11 February 2022 |
| 4 | Respondent’s Submissions | 24 March 2022 |
| 5 | Witness Statement of Delia McIver | 24 March 2022 |
| 6 | · Annexure A | 6 April 2021 |
| 7 | · Annexure B | |
| 8 | · Annexure C | 21 July 2021 |
| 9 | · Annexure D | 9 November 2021 |
| 10 | · Annexure E | 2 December 2021 |
| 11 | · Annexure F | 24 January 2022 |
| 12 | · Annexure G | |
| 13 | Applicant’s Submissions | 7 April 2022 |
| 14 | · Attachment 1 | 6 April 2021 |
| 15 | · Attachment 2 | 6 April 2021 |
| 16 | · Attachment 3 | 21 November 2021 |
| 17 | · Attachment 4 | 29 November 2021 |
| 18 | · Attachment 5 | 25 February 2022 |
| 19 | · Attachment 6 | |
| 20 | · Attachment 7 | 26 August 2021 |
| 21 | · Attachment 8 | 6 December 2021 |
| 22 | · Attachment 9 | 24 January 2021 |
| 23 | · Attachment 10 | 11 February 2021 |
| 24 | · Attachment 11 | 21 February 2022 |
| 25 | · Attachment 12 | |
| 26 | · Attachment 13 | |
| 27 | Respondent’s Submissions in Reply | 14 April 2022 |
| 28 | Supplementary Witness Statement of Delia McIver | 14 April 2022 |
| 29 | · Annexure H | 21 October 2021 |
| 30 | Respondent’s Authorities | 14 April 2022 |
| 31 | · Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 | |
| 32 | · Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 | |
| 33 | · CFMMEU v Personnel Contracting Pty Ltd (2022) 96 ALJR 89 | |
| 34 | · Khayam v Navitas English Pty Ltd (2017) 273 IR 44 | |
| 35 | · Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 | |
| 36 | · Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078 | |
| 37 | · Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 | |
| 38 | · WorkPac Pty Ltd v Rossato (2021) 309 IR 89 | |
| 39 | · ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144 | |
| 40 | · Cross on Evidence – Privilege |
In coming to this decision I have had regard to all of the material filed in the matter, the evidence provided at the hearing on 19 April 2022 and oral submissions made by the parties.
Legislative scheme
Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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.
Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[3] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[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. [4]
Facts leading up to and relating to the dismissal
I make the following findings of fact:
a) The Applicant commenced employment with the Respondent as a casual teacher in April 2021.
b) The casual employment was the subject of a contract of employment (in the form of a letter of offer) issued on 6 April 2021. Contrary to the submission made by the Applicant the contract of employment was not “confusing and misleading”. It was in clear terms. It included the following terms:
“1. … As a casual employee, each time you work in a separate period of employment. Each time you are offered and agree to work, the terms of this letter employment will apply to your employment. Once a period of employment ends, there is no obligation on you to accept, or on Chisholm to offer, any further work stop you expressly acknowledge and agree you have no expectation of fixed term or ongoing employment with Chisholm.”
“2. As a casual employee of engagement paid by the hour employed on an irregular basis or for a short period of time. You acknowledge and agree that nothing in this letter of appointment is to be construed to suggest that there should be any expectation of continuity of employment from day to day.”
“You will remain a casual employee into your employment ceases in accordance with clause [14].”
“14. Chisholm Online no obligation to offer you any hours of work, or any regular or systematic hours, what office you further hours or fixed term or ongoing employment. The casual employee, Chisholm Online may inform you at any time if you are not being offered further hours of work, or that your services are no longer required. …”
“If Chisholm Online offers you no further hours where employment is terminated by either party, you will not be entitled to any note, not only in lieu of notice, or to any payment in compensation for your employment ceasing.”
“Indicative Expiry Date | 31 December 2021”
c) The Applicant taught TAE40116 Certificate IV in Training and Assessment (a part of the Training and Education (TAE) Training Package under the VET Quality Framework.
d) The Applicant was offered hours and worked during the following study periods:
i.April 2021:
A. 14 hours per week for week 1;
B. 15 hours per week from weeks 2 to 5;
C. 13.3 hours per week for weeks 6 to 10,
D. Worked between 23 April 2021 to 21 June 2021;
ii.July 2021:
A. 17.5 hours per week for weeks 1 to 5;
B. 15 hours per week for weeks 6 to 10;
C. Worked between 12 July 2021 to 16 September 2021
iii.October 21:
A. 14.5 hours per week weeks 1 to 5;
B. 11 hours per week weeks 6 to 10;
C. Worked between 4 October 2021 to 9 December 2021.
e) The Applicant did not work and was not offered hours after 9 December 2021.
f) On 9 November 2021 the Applicant was advised that she was not going to be offered casual conversion. She was further advised that the Respondent was changing its resourcing model in 2022 and that she was invited to apply for ongoing or sessional employment.
g) The Applicant applied for and was interviewed in relation to an ongoing position.
h) Because the Applicant did not have a Diploma of VET the interviewing panel decided to reject an application for ongoing position as a teacher – TAE.
i) On 24 January 2022 the Applicant enquired about whether she would be offered work. She asked for a reply by 25 January 2022.
j) The Applicant was advised that the Respondent was “unable to offer you work by the end of the day as this would be outside of the process.”
k) At 9:37 AM on 24 January 2022 the Applicant replied “I will take that to mean that my employment with Chisholm has been terminated.”
When did the termination take effect?
There is a dispute about when the dismissal took effect. The Applicant says it occurred on 24 January 2022. The Respondent says it never occurred, but if it did it occurred on 31 December 2021. This is an important matter because if the Applicant is correct her application for an unfair dismissal remedy is not out of time.
Having regard to all the evidence I find that the employment came to an end on 31 December 2021.
I reject the Applicant’s contention that the Respondent dismissed her on 24 January 2022. The Respondent took no action to end the employment relationship with the Applicant. Nothing in the email exchange that occurred on 24 January 2022 evidences an intention, on behalf of the Respondent, to end the employment relationship. The only thing that was being communicated to the Applicant, at that time, was that the Respondent was unable to offer work within the arbitrary timeframe set by the Applicant. The Applicant could point to no other evidence which would support a finding that, at any time, there was a termination of the employment relationship at the initiative of the Respondent.
The Respondent says that it did not dismiss the employee and that the employment relationship continues. I also reject this contention.
This is because, the better view is that the contract of employment operated in such a way as to be a “maximum term” contract. By the effluxion of time, having regard to the “Indicative Expiry Date” the contract of employment ceased to operate on 31 December 2021. Consistent with the expiration of the contract of employment, the Applicant’s access to her Chisolm email ceased after this date.
Consequently, I find that the employment ended on 31 December 2022.
The further consequence is that I find that the Applicant’s application for an unfair dismissal remedy was out of time.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
The Applicant says there was no delay. She was dismissed on 24 January 2022. For the reasons above, I reject that contention. The Applicant did not work after 9 December 2021. Her contract clearly had an indicative expiry date of 31 December 2021. Her contention that the employment ended on 24 January 2022 was self-serving and manufactured.
Therefore, this factor weighs against granting the Applicant a further period to make her application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
It is contested when the Applicant first became aware of the end of her employment. For the reasons above, and having regard to the facts that:
a) her last day at work was 9 December 2021; and
b) the contract referred to the date 31 December 2021,
I am satisfied that the Applicant understood that the casual employment ended prior to 24 January 2022.
Therefore, this factor weighs against granting the Applicant a further period to make her application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
The Applicant took action to dispute the dismissal by lodging the present application. However, it was out of time.
The action taken by the Applicant to dispute the dismissal weighs against granting the Applicant a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
Other than the usual prejudice associated with delay, the Respondent does not assert any exceptional prejudice.
The prejudice asserted by the Respondent is a neutral factor in considering whether to grant the Applicant a further period to make her application.
Paragraph 394(3)(e) - The merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[5] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.”[6]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
The substantive factual contest between the Applicant and the Respondent is whether there was a dismissal. This is not a factual dispute that can be resolved presently. However, I have found above that the employment ended on 31 December 2021. Further, the better view is that the cessation of the employment relationship was not at the initiative of the Respondent. The employment ended by the effluxion of time. If I needed to decide the matter further, that is what I would decide. There is simply no evidence that the Respondent dismissed the Applicant.
Not that I need to decide it now, but the Respondent’s further contention, about the minimum employment period also has significant weight. Having regard to the terms of the contract of employment the Applicant could not have had a reasonable expectation of continuing employment on a regular and systematic basis. The contract of employment is clear. The High Court has made it clear that the contract is king. It trumps what actually occurred in the employment relationship.
For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is one that is likely without merit or lacking in any substance.
Because the Applicant’s case is likely without merit or lacking in any substance this factor also weighs against granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
The parties made no submissions about this factor.
Conclusion
When the s.394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Consequently, they are not exceptional circumstances.
For the reasons set out above, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge his application).
An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms Drakoulis for herself
Mr Ternovski for the Respondent.
Hearing details:
2022
19 April
By video
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] [2011] 203 IR 1
[4] Ibid [13].
[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[6] Ibid.
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