Ms Lucia Burnie v Tasmanian Country Club Casino Proprietary Limited T/A Country Club Tasmania

[2016] FWC 427

[2016] FWC 427

FAIR WORK COMMISSION

DECISION

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

Ms Lucia Burnie
v
Tasmanian Country Club Casino Proprietary Limited T/A Country Club Tasmania
(U2015/15322)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] Ms Lucia Burnie alleged that the termination of her employment by the Tasmanian Country Club – Casino Proprietary Limited T/A Country Club Tasmania on 18 September 2015 was unfair. The Country Club alleged that Ms Burnie’s employment was not terminated.

[2] Ms Burnie’s unfair dismissal application lodged on 1 December 2015 was not made within 21 days of the date of the dismissal.

[3] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Burnie was employed as a casual gaming cashier. In May 2015 the Country Club became aware that Ms Burnie’s husband was facing criminal charges and decided, due to the nature of those charges, that Ms Burnie could not continue in her casual role on the cash desk because of its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act2006 (Cth) as well as the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1), Part 8.3 Employee due diligence program. Between May and 18 September 2015, the Country Club had provided Ms Burnie with paid leave to which she was not legally entitled; created a new temporary role for her for a period of three months; provided her with flexible rostering; provided access to the Employee Assistance Program; and paid for medical treatment.

[6] On 18 September 2015 there was a meeting to discuss Ms Burnie’s potential return to work and at that meeting further redeployment was offered. Ms Burnie declined the offer and asked to be returned to her cashier position. The Country Club determined that it could not return her to that position. On the same day, Ms Burnie was sent a letter in which she was advised that “you will not be rostered at Country Club Tasmania now for a period up to 3 months.” She was advised that if her personal situation resolved she should contact them.

[7] Ms Burnie said she contacted the Commission prior to 18 September 2015 and was advised to contact the office of the Anti Discrimination Commissioner which she did. She lodged an application alleging discrimination with the office of the Anti Discrimination Commissioner in October 2015. That complaint did not deal with her dismissal. Ms Burnie gave evidence that sometime in early November 2015, a lawyer was consulted on her behalf and she was made aware that she had been constructively dismissed. In subsequent material filed with the Commission, Mr Ted Bell advised that the discussions with the lawyer took place on 17 November 2015 at which time the lawyer identified the potential dismissal issue. It was said that Ms Burnie, on 24 November 2015 after considering that information, made a decision to lodge her application with the Commission and did so on 1 December 2015. In that submission it was put that 17 November 2015 should be considered the date the dismissal took effect.

[8] Ms Burnie explained the delay from 17 November 2015 as being due to her lack of knowledge of the 21 day time limit.

[9] Ms Burnie explained the delay by saying that she was not dismissed on 18 September 2015 and that she was not dismissed until at least the three months referred to in the letter from the Country Club had passed. The difficulty with that submission is that Ms Burnie then filed an unfair dismissal application prior to her dismissal.

[10] Ms Burnie submitted that she was not familiar with the unfair dismissal system. It is not unusual for employees to be unaware of their unfair dismissal rights and the 21 day time limit the employee has to lodge the application.

[11] Ms Burnie submitted that she was constructively dismissed. I assume she is submitting that the Country Club repudiated her contract when it failed to offer her more shifts and she accepted that repudiation. If the Country Club repudiated her contract then it did so on 18 September 2015 when it notified Ms Burnie that she was not going to be rostered now for a period of up to three months.

[12] The Country Club submitted that Ms Burnie was not dismissed and made no submissions about the effective date of dismissal.

[13] I accept that if Ms Burnie was dismissed on 18 September 2015 then the confusion about the status of her employment provides a reasonable explanation for the delay in lodging her application.

[14] This weighs in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[15] If Ms Burnie’s dismissal took effect on 18 September 2015 then Ms Burnie was not aware of the dismissal when it took effect. This weighs in favour of a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[16] Ms Burnie disputed the decision to remove her from her position as cashier and redeploy her to another position albeit she accepted the redeployment. If she was dismissed she did not dispute the dismissal after it took effect other than lodging this unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[17] The Country Club did not bring any evidence or make any submissions that it would be prejudiced if Ms Burnie was granted an extension of time. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[18] Ms Burnie was removed from her position because of her husband’s conduct. There is no suggestion that Ms Burnie had done anything to warrant her removal from her position.

[19] The Country Club had advised that it considered that the Commission did not have the jurisdiction to hear Ms Burnie’s unfair dismissal application because of the Anti-Money Laundering and Counter-Terrorism Financing Act2006 (Cth) as well as the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

[20] Further, the Country Club submitted that it had not dismissed Ms Burnie and that was made clear in its letter of 18 September 2015. It submitted that Ms Burnie was a casual employee and remained on the books. It had not offered her work as a cashier. It had offered her alternative casual work albeit at a lower rate of pay which she refused. It says it did not dismiss her. Rather, she refused to accept the work offered.

[21] Ms Burnie submits her dismissal was unfair because she was sacked because of her marital status. She says she was constructively dismissed.

[22] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. On its face however, it appears that unless the Country Club is able to convince the Commission that Ms Burnie was not dismissed, then Ms Burnie’s claim that her dismissal was unfair is strong.

[23] I consider this criterion weighs in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[24] No submission was made that there were other persons in a similar position to Ms Burnie’s. I consider that this criterion is neutral.

Conclusion

[25] I have found that Ms Burnie has a reasonable explanation for the delay in lodging her application if in fact her application was not lodged within 21 days of the date of the dismissal given the confusion over whether she was in fact dismissed. Further, apart from not taking action to dispute the dismissal, the other criterion weigh in favour of a finding that there are exceptional circumstances.

[26] I find that there are exceptional circumstances which warrant granting Ms Burnie an extension of time to have her application heard and determined. This will further allow the Country Club the opportunity to put forward its submission that it did not dismiss Ms Burnie and that its conduct was authorised by the Anti-Money Laundering and Counter-Terrorism Financing Act2006 (Cth) as well as the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

[27] An order extending the time for Ms Burnie to lodge her application until 1 December 2015 will issue with this decision.

[28] I will also issue directions for the Country Club to file and serve, by noon on 5 February 2016, its submissions, evidence, and any documents it intends relying upon in support of its objections to Ms Burnie’s unfair dismissal application. Ms Burnie is directed to file and serve, by noon on 19 February 2016, her submissions, evidence, and any documents on which she intends to rely in opposition to the objections. The application will be listed for a hearing/conference at 11.00am on 25 February 2016.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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