Ms R v The Company

[2010] FWA 508

[2010] FWA 508

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Ms R
v
The Company
(U2009/14136)

COMMISSIONER ROBERTS SYDNEY, 4 FEBRUARY 2010

Termination of employment - extension of time.

[1] This decision concerns an application lodged by Ms R on 30 November 2009 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of her employment by the respondent (the Company). 1 An earlier application was lodged by Ms R on 9 November 2009 pursuant to s.394 of the Fair Work Act 2009 (the FW Act). That application was discontinued on 30 November 2009 when it became apparent to Ms R that she had filed an application under the incorrect Act. In any event, conciliation occurred by way of telephone conference before a conciliator acting under the FW Act on 30 November 2009 (not 27 November 2009 as both sides submitted). That conciliation led to the discontinuance of the earlier application.

[2] In her current application Ms R states that the termination of employment took effect on 27 March 2009. Accordingly, her application was filed some 227 days outside the 21 day time limit prescribed by the Act and therefore requires me to consider whether to grant Ms R an extension of time for filing. In the unusual circumstances in which Ms R filed an earlier application under the FW Act on 9 November 2009, as an honest mistake, I will take into account the filing date of 9 November 2009 and base my decision in this matter on a delay of some 206 days rather than the figure of 227 days given above. An extension of time was opposed by the Company which also objected to conciliation before determination of the application to extend time.

[3] Directions were issued on 4 December 2009 for the filing of submissions, witness statements and any supporting documents. The submission process concluded on or about 11 January 2010.

[4] In my view, it is appropriate to determine the extension of time application ‘on the papers’ and I will now proceed to do so, applying the relevant legislative provisions. Ms R was represented by Ms S Genovese of Matthew Hammond Solicitors and the Company by its Chief Operating Officer.

Legislative Framework

[5] Subsections 643(14) and (15) of the Act provide:

“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.

(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”

[6] The following Note appears under subsection 643(15):

“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

[7] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 2 :

"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

[8] In Cruz and Australia Post Corporation 3(Cruz), a Full Bench of this Commission said of Brodie-Hanns:

“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 4

Background

[9] Ms R was employed by the Company as the Manager of its Concession store operating within a major Department Store in suburban Sydney. She held that position from on or about 25 July 2001 until her employment was terminated by the Company on 27 March 2009 following an allegation that she had stolen a bottle of fragrance from the Department Store. The allegation was reported to police and Ms R was charged with larceny. The charge was heard at Hornsby Local Court on 27 May 2009, at which proceeding Ms R pleaded not guilty. The matter was then adjourned for a final hearing on 7 September 2009. Following the hearing, the presiding Magistrate found Ms R not guilty. On the facts available to me, it does not appear that Ms R has any criminal record relating to this or any other matter.

[10] On or about 22 September 2009, Ms R lodged an application with the New South Wales Industrial Relations Commission (NSW IRC) for relief from unfair dismissal. That application led to a conciliation conference on 19 October 2009 at which the Applicant learned that the NSW IRC lacked jurisdiction over her claim for relief. She then filed the application under the FW Act referred to above and then the current application.

Explanation of the delay

[11] Ms R submitted that she “was awaiting the outcome of the criminal law proceedings relating to the circumstance of her termination of employment prior to commencing the current proceedings.” She “acted promptly to commence the current proceedings following her successful defence of the criminal proceedings relating to the circumstances of her termination of employment.”

[12] “The Applicant was under significant psychological stress at the time of her termination due to the embarrassing circumstances surrounding same and the fact that she was forced to face criminal charges for the first occasion. These events occurred at a time when the Applicant was caring for her husband who was receiving treatment for a life threatening illness. The Applicant thought it most appropriate to delay the commencement of current proceedings until the outcome of the criminal law proceedings was known.”

[13] As part of her submissions, Ms R supplied me with copies of the relevant police and court documents together with medical practitioner statements concerning her husband’s medical condition and her psychological reaction to that condition.

[14] In response, the Company submitted that it was entitled to terminate Ms R’s employment on the basis of information available to it as at 27 March 2009. The Company further submitted that “a finding of non guilt under criminal law simply indicates that the Magistrate did not believe that the presented circumstances satisfied the required burden of proof, that being found guilty beyond all reasonable doubt. This outcome does not detract from the Respondent’s right to make measured and sensible decisions based upon the more relevant burden of proof attached to employment related matters, those being made on the balance of probabilities. It should also be noted that the Applicant was not acquitted, nor was there any concern raised during the hearing regarding the reliability of witnesses, dispute of circumstances in general, or failure of correct process.”

[15] “The Respondent does not dispute that the Applicant was distressed by being arrested for stealing items not belonging to her. The Respondent was well aware of the Applicant’s situation regarding her ill husband, and for a long period of time made a number of concessions to support her through this difficult time, as well as during her on-going Workcover claim. The Respondent is of the understanding that the circumstances surrounding the Applicant’s ill husband and her subsequent state of mind were presented to the Magistrate at the Applicant’s criminal hearing in an effort to introduce elements of doubt regarding her intent and mens rea at the time of offending.”

[16] The Company went on to argue that Ms R took no action to dispute the termination of employment and had refused to enter into discussions with the Company prior to the termination being effected. Ms R did not act promptly in filing her application for relief and her distress was related to her being apprehended for theft and such stress should not move the Tribunal to extend time.

Action taken by the Applicant

[17] There is nothing before me to indicate that the Applicant took any action following the termination of her employment, aside from defending the criminal charge against her, before she first filed an application for relief in the NSW IRC on or about 22 September 2009.

Prejudice to the Respondent

[18] Neither party directly addressed this issue. In all the circumstances, it appears the Company would be prejudiced by having to defend an application made at such a late date but that prejudice is not overwhelming and has not been a factor in my decision making.

Merits of the substantive application

[19] An application for an extension of time does not require a detailed assessment of the merits of the substantive application, but those merits may be taken into account in determining whether to grant an extension of time. The merit issue was argued at length in written submissions by both parties. The Company maintains that it was entitled to terminate Ms R’s employment based on the information available to it at the relevant time, despite the eventual outcome of the criminal proceedings. Ms R submitted that the finding of ‘not guilty’ by the Magistrate means that the termination of her employment was therefore harsh, unjust or unreasonable.

[20] The central dispute in this matter does not concern the sequence of events from 27 March 2009 onwards. The dispute between the parties centres on whether the finding of ‘not guilty’ constitutes vindication of Ms R such that the termination of her employment would become harsh, unjust or unreasonable. In my opinion, Ms R’s view would be unlikely to prevail in arbitration proceedings in that I believe it would be likely that the Tribunal would support the Company’s right to take the action it did on 27 March 2009 based on the facts available to it at that time. The Tribunal would therefore be likely, in my view, to decide that there was a valid reason on 27 March 2009 for the termination of Ms R’s employment.

[21] In summary, there is little doubt in my mind that the Company had a valid reason for the termination of employment but the other questions would require further examination involving sworn evidence. In the absence of sworn evidence, I am unable to come to a final conclusion on merit in total.

Fairness between the Applicant and other persons in a like position

[22] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion

[23] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”

[24] The onus is on Ms R to convince me that I should extend time. I am not satisfied, on balance, that she has met that onus.

[25] The following time line is instructive:

27 March 2009	Termination of employment effected and Ms R charged by police with theft.
27 May 2009	Ms R pleads not guilty at Hornsby Local Court.
7 September 2009	Ms R’s case is heard and she is found not guilty.
22 September 2009	Ms R files an application with the NSW IRC.
19 October 2009	Ms R discovers that her NSW IRC application is beyond that Commission’s jurisdiction.
9 November 2009	Ms R files an application for relief with Fair Work Australia.
30 November 2009	Fair Work Australia conciliates the application and Ms R finds that she should not file under the FW Act.
30 November 2009	Ms R files the current application.

[26] In the light of the above chronology, and after considering the written submissions of the parties, it is my view that it is understandable for Ms R to have focussed on the criminal proceedings against her rather than on an application for relief relating to the termination of her employment. However, the criminal case was resolved in her favour on 7 September 2009. Ms R then took another some 15 days to file an application with the NSW IRC and when she discovered that the NSW IRC lacked jurisdiction, she took another some 20 days to file an application with Fair Work Australia. That course of action does not indicate that Ms R acted with any urgency during those periods.

[27] In all the circumstances, I find that there is not an acceptable reason for the delay such as would make it equitable to for me to grant an extension of time. An extension of time is refused and therefore the substantive application must also be dismissed.

[28] An order reflecting this decision is in PR992963.

COMMISSIONER

 1   Names and other identifying details have not been used in this decision for privacy reasons.

 2   (1995) 67 IR 298 at p299.

 3  [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)

 4   Ibid at paragraph 23.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR992962>