Ms Michelle Smith v Mr Keith Crook

[2010] FWA 9835

[2010] FWA 9835

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Michelle Smith
v
Mr Keith Crook
(C2010/4323)

DEPUTY PRESIDENT LEARY HOBART, 20 DECEMBER 2010

Termination of employment - general protections claim - extension of time.

[1] This is an application pursuant to s.365 of the Fair Work Act 2009 (the Act) by Michelle Smith (the applicant) alleging a contravention of s.351(1) of the Act which provides that “An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s ... family or carer’s responsibilities ...”

[2] S.365 prescribes:

“If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.”

[3] S.366 prescribes:

“(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection(2).”

[4] The applicant alleges that Keith Crook (the respondent) breached s.351(1) of the Act by terminating her employment due to her family responsibilities.

[5] The respondent rejects the allegations and submits that the applicant worked in a part-time capacity, along with another employee who was also terminated at the same time as the applicant, when the respondent had made a decision, for financial reasons, to convert the position into one full-time junior position.

[6] Further the respondent argues that the application is outside the prescribed time limit for filing and should be dismissed.

[7] The applicant was terminated on 19 April, 2010 and filed her application on 16 July, 2010. The application has therefore been lodged more than 60 days after the dismissal took effect and by reference to s.366(1) of the Act cannot proceed unless FWA allows an extension of the statutory time limit.

[8] An extension of time can only be allowed if FWA is satisfied that there are exceptional circumstances as to why the application was not lodged within the specified time limit. The factors to be taken into account are prescribed in s. 366 (2) which provides:

“FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reasons for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[9] The applicant advised that she wished to make an application pursuant to s.366(2) and accordingly Directions for written submissions were issued.

[10] The parties were informed that:

“The jurisdiction matter will be determined on the papers unless FWA is of the view that a short oral hearing is necessary to examine witnesses, if appropriate, or to provide further information or explanation. If deemed necessary a listing date will be provided in due course.”

[11] FWA is satisfied that the application for an extension of time can be determined on the papers.

The applicant:

[12] The applicant was employed by the respondent in a part-time position of approximately 20 hours per week from 20 August, 2009 until termination on 19 April, 2010. [Disputed reference attached to application filed 16 July, 2010] She had previously worked at the surgery as a volunteer. The applicant’s statement attached to the notification says her employment commenced September, 2009. The discrepancy in respect to dates is of no consequence to any determination.

[13] The applicant’s submissions addressed many issues and raised a number of allegations which relate to her substantive claim.

[14] The application the subject of this decision is the applicant’s request to seek an extension of the prescribed time limit in which to lodge an application alleging a contravention of s.365 of the Act.

[15] Accordingly I deal only with that part of the submissions relevant to the extension of time application.

[16] The applicant states that after her dismissal she investigated legal options but found the cost of a lawyer was not an option available to her. She also made contact with Legal Aid and was advised that they “don’t deal with civil matters”. [Written submission received 13 September, 2010]

[17] In her statement attached to the application filed 12 July, 2010, the applicant said that she had sought legal advice during the week of 19 April, 2010, but was advised that a claim for unfair dismissal “was not strong” as she was a person excluded from pursuing a claim asher former employer employed less than 15 employees and she had been employed for less than 12 months. The statement says that “He did believe I had a case but didn’t state any points of law that were convincing to me….”

[18] She said that she was advised that she only had 14 days in which to lodge a claim for unfair dismissal.

[19] In her statement the applicant says that she again contacted Legal Aid after speaking with the respondent’s legal adviser on 8 July, 2010 about her ‘statement of employment’, and was advised to contact FWA and was “…made aware of the legislation regarding general protections disputes. This was the first I knew of the discrimination act.” She was also advised that she would be late in making any application.

[20] The applicant states that she had “no prior knowledge of the system ……….and was unaware this situation was covered under the discrimination act until further research into FWA and calls to them revealed this. Unfortunately this meant my application was out of time.” [Written submission 13 September, 2010]

[21] The application was filed some 8 days after the conversation with Legal Aid and receiving information from FWA.

[22] The applicant notes in her statement that she has lodged outside the 60 day prescribed period and pleads that she was unaware of the ‘discrimination act’ until speaking to Legal Aid.

The respondent:

[23] The respondent provided a number of witness statements and submissions relating to the substantive part of the claim.

[24] In respect to the application for an extension of time it was submitted that the applicant makes no claim that she was unable to proceed with her application by reason of illness or for any other reason or that she did not understand information provided to her by Legal Aid or any other source.

[25] The respondent noted the comments of the applicant in her statement attached to the substantive application where it is clear that her claims had been discussed with a solicitor and she had accepted the advice of the solicitor who was, the applicant said, of the view that she ‘had a case’ to prosecute.

[26] The respondent agrees that the applicant made contact after the termination but that contact was about the terms of a reference and she did not dispute the redundancy. The respondent said that the applicant did say that she should have been offered the full-time position.

[27] The respondent addressed each of the consideration in respect to a s.366(2) application.

[28] The respondent argued that the applicant had taken no action to dispute the termination. It was agreed that contact had continued but it was related to the applicant’s dissatisfaction with the statement of employment provided by the respondent. The respondent said that the applicant never disputed that her position was made redundant for reasons of financial considerations.

[29] It was submitted that the respondent is a sole practitioner who works from a surgery at his home and would need to close the surgery to deal with the claim by the applicant. Further he has to fund a response to defend the claim which, along with the claim itself, has caused stress to the respondent and his wife.

[30] The respondent submitted that it had decided that it was not best practice to maintain two part-time vet nurses and had employed a full-time junior trainee nurse. It was submitted that there are also financial benefits in doing so and is a ‘best fit’ for the practice which provides continuity in dealings with clients.

[31] Accordingly the respondent argues that the allegation that the applicant was terminated due to her family responsibilities has no merit. The termination was due to redundancy when the decision was made to employ a full-time junior employee instead of two part-time senior employees.

[32] The two part-time nurses were terminated on the same day as their positions had been made redundant by the employment of a full-time junior employee. The other former part-time employee worked out her notice period and indicated she was happy to work at any time the full-time employee was not available. She has made no claims on the respondent and in fact has recently agreed to work one afternoon a week at the surgery.

Are there exceptional circumstances?

The reason for the delay:

[33] The applicant has said that the reason for the delay in lodging her application was that she was unaware of her ability to do so. She claims not to have been aware of the legislation in respect to ‘general protections disputes.’ The applicant’s submissions show that she was in touch with either Legal Aid and/or a solicitor the week of her termination as she refers to information provided to her about her claim of unfair dismissal. Further she says “He did believe I had a case but didn’t state any points of law that were convincing to me….”

[34] It would seem from her statement that she accepted she was excluded from pursuing an unfair dismissal claim but there must have been some discussion about other possible action although she says she was not convinced to proceed further.

[35] Not being aware of relevant legislation and possible action available to challenge a termination is not an exceptional circumstance.

[36] The applicant has failed to provide any credible reasons for her failure to lodge her application within the specified time limit. There is nothing unusual or extraordinary about the matter on which she relies; being ignorance as to any relevant remedy she could pursue, particularly as both her statement and written submissions reveal that she was in touch with both Legal Aid and a solicitor a few days after her termination.

Any action taken by the person to dispute the dismissal:

[37] The applicant submits that she was in touch with the respondent after her termination but only in relation to a statement of employment and her dissatisfaction with the content of the statement provided by the respondent.

Prejudice to the employer (including prejudice caused by the delay):

[38] The respondent is a sole trader working from home and would be required to close his surgery for the duration of any formal proceedings and would also need to fund representation.

The merits of the application:

[39] Prima facie the application has little likelihood of success. The applicant does not challenge that her position was made redundant and replaced with a full-time employee, nor does she challenge the reasons presented by the respondent for the change in the employment arrangements. It is agreed that she did ask why she was not offered the full-time position but submits that she was told that her termination was “due to their financial circumstances”. The applicant makes no challenge to the reason for termination being due to the financial circumstances of the respondent.

Fairness as between the person and other persons in a similar position:

[40] The other part-time employee was made redundant at the same time but has not challenged the decision of the respondent and has a continuing casual employment relationship.

Conclusion:

[41] The onus rests with the applicant to persuade FWA to extend the period of time in which to file an application beyond the period prescribed in the legislation.

[42] I have taken into account all of the submissions provided and have had regard only to the submissions relevant to the specific extension of time application and have formed the view that the applicant has failed to provide any reason for late lodgement that would satisfy the requirement to demonstrate exceptional circumstances.

[43] The applicant pleads ignorance of the relevant legislation which I do not consider to be an exceptional circumstance. Her submissions clearly indicate that on more than one occasion she has had contact with, and received advice from, both Legal Aid and a solicitor in respect to her termination.

[44] Accordingly I am not satisfied that there are any exceptional circumstances that would justify a further period of time for the making of this application.

[45] The application for an extension of the prescribed time limit found in s.366(1) of the Act is dismissed.

DEPUTY PRESIDENT

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