Ms Jeanette Anne Malcolm v The Trustee of Saba Family Trust Saba Direct Pty Ltd T/A Sabamedicine

[2014] FWC 6676

[2014] FWC 6676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Jeanette Anne Malcolm
v
The Trustee of Saba Family Trust - Saba Direct Pty Ltd T/A Sabamedicine
(U2014/10963)

COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2014

Unfair dismissal - jurisdictional objection - out of time.

[1] On 17 July 2014, Ms Jeanette Malcolm (Ms Malcolm or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, The Trustee of Saba Family Trust - Saba Direct Pty Ltd T/A Sabamedicine (Employer).

[2] Ms Malcolm states in her application that her dismissal took effect on 18 June 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect.

[5] Ms Malcolm has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 17 July 2014), if it is satisfied that there are exceptional circumstances.

RELEVANT LEGISLATIVE FRAMEWORK

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

RELEVANT BACKGROUND

[7] On 6 May 2013, the Applicant commenced employment with the Employer as a Receptionist.

[8] Ms Malcolm “job shares” with two other employees.

[9] Ms Malcolm’s Employment Agreement states at item 17 “Award - Health Professionals and Support Services Award 2010”. Under Clause 12 Termination, it states that this Agreement (Employment Agreement) may be terminated by “...or such period as required by the Fair Work Act”. Although not directly relevant to this application, Clause 12 also refers to redundancy entitlements being pursuant to the Fair Work Act provisions. Finally, at Clause 18 Attachments, it refers to the Fair Work Act being attached to the Employment Agreement.

[10] On 19 June 2014, the Applicant and Dr Saba had a discussion when Dr Saba arrived at the clinic at approximately 11:00 am.

[11] The parties have differing recollection of the discussion.

[12] At 2:30 pm on the same day (19 June 2014), Ms Malcolm sent Dr Saba an email which reads “I would be really grateful if you could write me a reference as discussed today”.

[13] Dr Saba responded to Ms Malcolm’s email of 19 June 2014 agreeing to write a reference and advising the Applicant, “as discussed”, that the Employer would pay out all existing entitlements and thanking Ms Malcolm for “all the work in the last year”.

[14] On 20 June 2014, the Applicant responded to Dr Saba to say that she understood that she “would be returning to work on 2 July”.

[15] On the following day, 21 June 2014, Dr Saba responded to Ms Malcolm’s email of 20 June 2014, and states, “I have to say clearly: Your work with me was terminated on 18 June 2014”.

[16] Greater details of Dr Saba’s reasons for terminating Ms Malcolm’s employment are set out in a further email to her on 24 June 2014.

[17] I am satisfied that Ms Malcolm’s employment ceased on 19 June 2014.

CONSIDERATION

[18] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[19] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[20] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[21] The burden lies with Ms Malcolm to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[22] The Applicant states that the reason for the delay was “I was unable to establish the correct jurisdiction for my unfair dismissal claim as full legal identity of the company I was employed by could not be established”.

[23] Ms Malcolm claims that the first time she became aware of the full legal name of her employer was on 15 July 2014 when she received her letter of termination of employment dated 19 June 2014.

[24] Ms Malcolm describes how, on 24 June 2014, she researched the Commission website and contacted the Commission “to discuss if I could lodge a claim if the employer was a Trust”. In the circumstances, the Commission advised the Applicant to contact the Western Australian Department of Commerce’s “Wageline”. Due to a lack of information, “Wageline” advised Ms Malcolm that it may be appropriate to seek legal advice.

[25] The Applicant and her husband researched the Australian Securities and Industries Commission (ASIC) website and while the “Saba Family Trust was recognised, it did not identify the trustee”.

[26] The Applicant and her husband consulted with a “legal advocate for unfair dismissal”. Subsequent advice from the “legal advocate” on 30 June 2014 was, according to the Applicant, that the jurisdiction would “most likely be State”.

[27] For accuracy, I set out the Industrial Advocate’s entire email of 30 June 2014:

“I have made enquiries regarding our matter and believe it will be problematic for me to represent you as I believe your matter will be handled in Western Australia.

To make absolutely sure and for your own peace of mind I would suggest you contact the Fair Work Commission regarding this matter to enquire about jurisdiction. Their number is 1300 799 675.

I wish you every success and remind you of the strict time limits to lodge claims.” (my emphasis)

[28] It cannot be said that, after receiving the advice of the Industrial Advocate, the Applicant was unaware of the need to comply with the statutory timeline for filing an application.

[29] The parties are in dispute about whether the business identity of the Employer is contained on a telephone list at the reception desk where the Applicant worked. I am not able to make such a determination on the various contentions. The parties are also in dispute about the information which could be obtained from the Employer or other employees. The parties also dispute whether it is common practice or a legal requirement for payslips, payment summaries, employment contracts or bank statements to identify the identity of the Employer.

[30] On 1 July 2014, the Applicant sought legal advice from a firm of solicitors who advised that an application was “most likely” to fall within the State jurisdiction.

[31] On 3 July 2014, the Western Australian Industrial Relations Commission (WAIRC) received the Applicant’s application alleging that she was unfairly dismissed.

[32] It is not necessary to detail the events in the WAIRC, save to say that on 30 July 2014, the Applicant was advised that the WAIRC had no jurisdiction to deal with Ms Malcolm’s application.

[33] Prior to Ms Malcolm being advised that the WAIRC had no jurisdiction to deal with her application, the Applicant filed an application in this Commission on 17 July 2014 after receiving her letter of termination of employment.

[34] It appears from the chronology of events, that the Applicant from 17 July 2014 adopted an approach of filing unfair dismissal applications in both the Western Australian and Commonwealth jurisdictions because she was still uncertain of which jurisdiction she could pursue her application.

[35] I am uncertain as to the exact content of discussions the Applicant had with the relevant Western Australian government agencies or the Commission. Further, I have no knowledge of what documentary material the Applicant provided to the legal advocate or solicitor; for this reason it would be inappropriate to make judgement on the quality of the advice provided by the respective parties.

[36] However, I do have the Applicant’s “Employment Agreement” which clearly sets out that a Commission modern award (Health Professionals and Support Services Award 2010) regulates, in part, Ms Malcolm’s conditions of employment. Secondly, the specific dispute between Ms Malcolm and the Employer, that is, her termination of employment, is provided for in Clause 12 Termination of the Employment Agreement. The opening words of Clause 12 are as follows:

“This agreement may be terminated at any time by either party on the giving of four weeks’ written notice or such period as required by the Fair Work Act to the other party...” (my emphasis)

[37] As the Applicant contends her employment was terminated unfairly, it would seem reasonable that she would revert to the termination provisions of her Employment Agreement in the first instance. While the Award does not refer to it being an award of the Commonwealth jurisdiction, there can be no doubt that the clause dealing with Ms Malcolm’s termination of employment refers to the Fair Work Act - and that unmistakably is legislation of the Commonwealth Parliament. The Fair Work Act cannot be mistaken for employees covered by Western Australian industrial relations jurisdiction, pursuant to the Industrial Relations Act 1979.

[38] The “Fair Work Act” is referred to in two other provisions in the Applicant’s Employment Agreement but which are not directly relevant to this application.

[39] The Applicant states that the delay was occasioned by the fact that she was unable to establish the “full legal identity of the company”. While that may be the case, Ms Malcolm did have in her possession her Employment Agreement which unambiguously referred to the Fair Work Act in a clause dealing with termination of employment. After receiving advice, the Applicant made a choice as to which jurisdiction to file the application. Ms Malcolm made the wrong choice, when at all times she had in her possession a document containing a “signpost” which indicates the Commonwealth jurisdiction of her employment conditions.

[40] If making the wrong choice became an exceptional circumstance, it would readily apply to matters other than jurisdiction to file a late application. For example, an applicant choosing not to pursue an application until he or she having fully received their entitlements, or choosing to remain ignorant of their rights to pursue an alleged unfair dismissal. What is noticeable in this application is that in making a choice, the Applicant’s employment contract, from the very outset, was strongly indicative of where the choice of jurisdiction lay.

[41] Unfortunately, making the wrong choice is not out of the ordinary, exceptional, unique, unusual, rare or uncommon. Making the wrong choice is a familiar everyday occurrence.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[42] I find that the Applicant became aware of her dismissal either on 19 or 21 June 2014.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[43] I am satisfied that the Applicant formally took action to dispute her dismissal on 3 July 2014 by filing an application in the WAIRC. Prior to that date, the Applicant contested: what was said at a meeting on 19 June 2014; her understanding of when she was returning to work and seeking the reasons for her dismissal.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[44] The Applicant contends that there is no prejudice to the Employer by the delay. The Employer does not address this contention. I have adopted a neutral position to this criterion.

Paragraph 394(3)(e) - the merits of the application

[45] Without the benefit of a hearing where witnesses are cross examined, it is difficult to determine the merits of the application. I have adopted a neutral position with respect to this criterion.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[46] The Applicant submitted that this criterion is not relevant to the application. I agree.

CONCLUSION

[47] Having considered the totality of the submissions and documents, I am not satisfied that there were exceptional circumstances to allow the application to be filed after the statutory timeline of 21 days after the dismissal took effect. Pursuant to paragraph 587(3)(a) of the FW Act, this application is dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 12 August and 2 September 2014.

Respondent: 24 August 2014.

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