Ms Lynda Clements-Smith v Calrossy Anglican School
[2012] FWA 6145
•26 JULY 2012
[2012] FWA 6145 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Lynda Clements-Smith
v
Calrossy Anglican School
(U2012/7328)
VICE PRESIDENT WATSON | SYDNEY, 26 JULY 2012 |
Application for unfair dismissal remedy - application for extension of time for lodgement - whether exceptional circumstances - Fair Work Act 2009 - s.394
Introduction
[1] This decision concerns an application by Ms Lynda Clements-Smith for an extension of time for filing an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) concerning the termination of her employment by Calrossy Anglican School (Calrossy).
[2] Ms Clements-Smith’s application for an unfair dismissal remedy was made on 20 April 2012. Ms Clements-Smith was notified of the termination of her employment with Calrossy on 14 September 2011, effective 31 October 2011 by way of letter dated 19 September 2011. Calrossy objected to the application on the basis that Ms Clements-Smith filed the application some 172 days out of time.
[3] The matter was listed for mention and programming on 17 May 2012. Directions were made for the filing of written material in relation to the application to extend the time for filing the unfair dismissal application, on the basis that the application would be determined on the papers. Ms Clements-Smith filed her written submissions on 7 June 2012. Calrossy filed its submissions in response on 28 June 2012. A further mention was conducted on 5 July 2012 and Ms Clements-Smith was granted the opportunity to file a submission in reply which was filed on 9 July 2012.
The relevant legislation
[4] One of the matters that Fair Work Australia must determine prior to considering the merits of an application is whether the application was made within the period required in s.394(2): s.396(a).
[5] Section 394 of the Act relevantly provides:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] It is well established that this section requires a consideration of all of the circumstances and that exceptional circumstances may arise from a single factor or a combination of factors. 1
Position of the parties
[7] Ms Clements-Smith submits that she was unfairly dismissed and that Calrossy has falsely characterised her termination as a genuine redundancy. Ms Clements-Smith submits that her position of School Counsellor has since been filled and that she was not included in discussions regarding a redevelopment of Calrossy’s Welfare model.
[8] Calrossy submits that Ms Clements-Smith was employed on temporary fixed term contract from 1 January 2011 to 31 December 2011. Calrossy submit that Ms Clements-Smith was advised as early as 7 February 2011 that Calrossy was not able to offer her permanent employment after the cessation of her fixed term contract. Calrossy submits that, despite the temporary nature of Ms Clement-Smith’s contract, they recognised Ms Clements-Smith as a permanent employee in line with the enterprise agreement which would have otherwise covered her employment. Calrossy therefore provided Ms Clements-Smith with a redundancy payment upon the termination of her employment. Further, Calrossy submits that Ms Clements-Smith’s position has not been replaced and the current Senior Counsellor, who is the Director of Health and Welfare, has been employed in that position since 2005. In summary Calrossy submits that the termination of Ms Clements-Smith’s employment was the result of her temporary contract not being renewed and Calrossy’s subsequent decision to recognise this as a redundancy with a severance payment.
[9] I now turn to consider the circumstances of the matter and the factors contained in s.394(3) of the Act.
The reason for the delay
[10] In her written submission to Fair Work Australia, Ms Clements-Smith submits that the reason for her delay in making the application was due to persistent untruthful statements made by the Principal of Calrossy, Ms Elizabeth Jackson in regard to the reasons for her termination. As a result, Ms Clements-Smith submits that both she and her representative, the Independent Education Union (IEU), were misled in regard to the circumstances surrounding her termination. Ms Clements-Smith submits that she was delayed in making the application because it is only now that she is able to cope with the consequences of her termination and that during the time period between her dismissal and making the application, new information came to light. It was not until she had gathered such evidence to clarify what she believed were the facts that she was able to make an application. Ms Clements-Smith further submits that at the time of being dismissed, she was advised by a senior staff member at the school that she should refrain from expressing her opposition to her dismissal as such objection may jeopardise her chances of securing a reference from the school and obtaining other employment.
[11] Calrossy submits that there are no exceptional circumstances that arise in this matter to warrant an extension of time for making the application. It submits that Ms Clements-Smith’s delay in making the application cannot be attributed to lack of representation or the failure to be given an opportunity to dispute the dismissal.
[12] Although I acknowledge the difficulties faced by Ms Clements-Smith, I do not consider that the reasons for the delay amount to an adequate explanation for the delay. There may be cases in which an employer engages in misleading conduct which might cause an employee to delay making an unfair dismissal application. However in this case, I do not accept that there has been misleading conduct on the part of Ms Jackson. Ms Clements-Smith could have challenged her dismissal much earlier, even if it meant investigating and building her case thereafter. She did not do so by her choice and her own actions.
Whether the person first became aware of the dismissal after it had taken effect
[13] Ms Clements-Smith submits that she received notification that her contract of employment with Calrossy was not being extended at a meeting with Ms Jackson on 14 September 2011, effective 31 October 2011. This means that the application was 172 days out of time and that Ms Clements-Smith had at least 6 weeks notice of her termination.
Any action taken by the person to dispute the dismissal
[14] In regard to this factor Ms Clements-Smith has provided information of her correspondence and discussions with Mr Peter Bishop of the IEU to dispute her dismissal. A letter was sent by Mr Bishop on her behalf to Ms Jackson on 5 October 2011. Ms Jackson replied on 12 October 2011. Ms Clements-Smith wrote a letter to Mr Bishop on 21 October 2011, disputing the contents of Ms Jackson’s 12 October letter. In an email dated 8 January 2012, Ms Clements-Smith also made contact with the Right Reverend Dr Peter Brian, Archbishop of the Armidale Diocese, who is responsible for overseeing the management of Calrossy, to express her concerns over her dismissal. A response was received on 13 January 2012 supporting the decision of Calrossy. Ms Clements-Smith replied to Dr Brian and did not receive a subsequent response.
Prejudice to the employer (including prejudice caused by the delay)
[15] Calrossy submits that it would suffer significant prejudice if an extension of time was granted and Ms Clements-Smith was able to proceed with her claim. In response, Ms Clement-Smith submits that Calrossy have failed to articulate what prejudice they would incur.
[16] I do not consider this to be a significant factor in support of the application or against it.
The merits of the application
[17] Ms Clements-Smith submits that the merits of the application are strong. It is her contention that her dismissal from Calrossy was not a case of genuine redundancy. She submits that her position was made redundant and she was not given the opportunity of redeployment within the school so that Ms Jackson could give the position of School Counsellor to her daughter. Ms Clement-Smith further submits that her termination was not a case of genuine redundancy as Ms Jackson is currently employing another person in that position and she was never consulted with regards to a restructure of Calrossy’s welfare program.
[18] Calrossy submits that at the time of the termination of her employment, Calrossy was in the process of redeveloping its welfare model and that due to uncertainty in enrolment numbers and an evolving welfare model, Calrossy was unable to offer Ms Clements-Smith a permanent position beyond her 12 month contract. Calrossy further submits that because Ms Clements-Smith does not have a teaching background, it was unable to find a suitable position for her within the school. Calrossy submits that they met and consulted with Ms Clements-Smith both prior to and at the time of making the decision not to renew her fixed term contract and therefore submits that Ms Clements-Smith application has no merit.
[19] The merits of this case can only be assessed with the benefit of all of the evidence. I note the allegations made by Ms Clements-Smith are serious and, if proven, may establish that the redundancy was contrived in order to provide a benefit to a family member
Fairness as between the person and other persons in a similar position
[20] Neither party made a submission on this point. I do not consider this factor to be important in this case.
Conclusion
[21] In all of the circumstances I am not satisfied that there are exceptional circumstances justifying an extension of time being granted. I have weighed all of the circumstances. The delay was significant and the explanations given do not explain why the application could not have been made earlier. The application may have merit but this does not outweigh the general absence of exceptional circumstances. The application for an extension of time and the application for an unfair dismissal remedy are dismissed.
VICE PRESIDENT WATSON
Written Submissions
Ms Clements-Smith, Submissions in support of application to extend time, 8 June 2012.
Calrossy Anglican School, Submissions in response, 28 June 2012.
Ms Clements-Smith, Reply to Respondents submissions, 12 July 2012.
1 Cheyne Leanne Nulty v Blue Star Group[2011] FWAFB 975.
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