Ms Teresa McDonald v Christian Schools Tasmania T/A Calvin Christian School

[2018] FWC 6792

[2018] FWC 6792

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Teresa McDonald
v
Christian Schools Tasmania T/A Calvin Christian School
(C2018/5188)

DEPUTY PRESIDENT ASBURY BRISBANE, 18 DECEMBER 2018

Application to deal with contraventions involving dismissal – Extension of time – Whether further period to make application should be granted – No exceptional circumstances – Application dismissed.

[1] In a decision issued on transcript on 29 October 2018, I refused to allow a further period under s. 366(2) of the Fair Work Act 2009 (the Act) for Ms Teresa McDonald to make an application under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General Protections dispute in respect of her alleged dismissal by Christian Schools Tasmania (CST), and dismissed that application. The Respondent is named as Christian Schools Tasmania, which is an association of four Christian schools in Tasmania. My reasons for refusing to allow a further period for the application to be made are as follows.

[2] Ms McDonald’s application for the Commission to deal with a General Protections dispute was made on 18 September 2018. By virtue of s. 366(1) of the Act, an application under s.365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act.

[3] In her Form F8 General Protections Application Ms McDonald responded to question 1.1 “On what date were you dismissed?” stating “2017 – end of June.” In response to question 1.2 “What date did your employment with the Respondent commence?” Ms McDonald stated “Mid June of 2017. Only for one day.” Ms McDonald also stated that on the day that she worked for Calvin Christian School, a proposition in relation to future work was put to her during the day but by the end of the day she was informed that future work was no longer available. Ms McDonald stated that no reasons were provided for this changed position. Ms McDonald also asserts on her Form F8 that the sections of the Act that have been breached are “s. 351 Discrimination and unfair dismissal.”

[4] CST on its Form F8A Employer Response to a General Protections Application stated that Ms McDonald had only one casual engagement with CST at its Calvin Christian School as a Relief Teacher for 3.5 hours, which had actually occurred on 18 November 2016. CST stated that this meant Ms McDonald’s application was made some 21 months outside the required time.

[5] Directions were issued requiring Ms McDonald to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make her General Protections application, by 4.00pm on Tuesday 9 October 2018. Ms McDonald was also directed to address her position as to the date of her dismissal, in light of the Response to her application made by CST. CST was directed to file and serve any material in relation to the matter by 4.00pm on Tuesday 16 October 2018. The Directions set out. 366(2) of the Act and informed the parties that these matters should be addressed in the material filed by them.

[6] Ms McDonald sent correspondence to my Chambers by email on 9 October 2018 and 17 October, apparently in response to the Directions. CST filed a document entitled “Statement”. The matter was listed for Objections Conference/Hearing on Monday 29 October 2018. The hearing was conducted by telephone. Ms McDonald represented herself, and attended with a support person, Mr Murray Forbes. Mr Gillman, Chief Executive Officer, appeared for CST.

EVIDENCE AND SUBMISSIONS

[7] In her first email on 9 October 2018, Ms McDonald stated:

“I request an extension of time for this case as it was only a few months ago that I had a conversation with the receptionist at Christian Schools Tasmania only to reveal that I was 'blacklisted' from four Christian schools in Hobart. After this revelation it took me a further few weeks to consider a further plan of action.”

[8] In a further email sent to my Chambers on 17 October 2018, Ms McDonald acknowledged that she was employed for 3.5 hours of relief teaching on 18 November 2016, and not in “Mid June 2017” as stated on her application. Ms McDonald stated that no advice was given to her on 18 November 2016 to the effect that a “black mark” had been placed against her name by CST. Ms McDonald further stated that she was not aware of the “black mark” until around the beginning of August 2018 when she phoned the CST office in Hobart to inquire as to why she had not been provided with work “within that time frame” which I understand to be the period from 18 November 2016. During that conversation, Ms McDonald claims that she was told by CST’s HR/Payroll person that that there was such a mark against her name and the HR/Payroll person did not know the reason for this.

[9] Ms McDonald states in her F8 application that on the date of her only engagement with the Calvin Christian School on 18 November 2016, a permanent teacher at Calvin Christian School named “Caleb”, had approached her “during the lesson or recess” with a proposition for more relief work. Ms McDonald says that “by the end of the day he notified me that it was no longer available, without explanation”. The Respondent clarified in its response that this was Mr Caleb Cooper, who was the Deputy Principal of Calvin Christian School, and was the person who had engaged Ms McDonald for that engagement.

[10] Ms McDonald states that she telephoned CST’s reception around the beginning of August 2018 to ask why there had not been any work available for her since her last engagement. Ms McDonald stated that she spoke to a “Payroll and HR person” named Angela Legg who advised her that a “black mark” had been placed against her name.

[11] Ms McDonald states that she then asked to speak to the Business Manager of CST, and said that he advised that the former Deputy Principal of Calvin Christian School (the school at which Ms McDonald worked on 18 November 2016) had disapproved of Ms McDonald’s work on that occasion. Ms McDonald said that the Business Manager also told her that she could submit her resume to other Principals within CST’s schools and it would be a matter for them as to whether to offer any relief engagements.

[12] Ms McDonald states that she then proceeded to submit her resume to another school within the CST’s group, Emmanuel Christian School, on 13 August 2018, and received an email from the Principal of Emmanuel Christian School stating that CST forwarded approved names to him. Ms McDonald interpreted this response to mean that the “black mark” against her name was not restricted to Calvin Christian School, but also included Emmanuel Christian School, since referrals to schools were made through CST’s head office. Ms McDonald provided a copy of this email which was dated 13 August 2018.

[13] Ms McDonald states that she then spoke again by telephone to CST’s Business Manager requesting the “black mark” be removed from her name and was informed that this was not possible and that Ms McDonald could submit her resume to other schools within CST, and it was a matter for those Principals to choose who they would engage as a relief teacher. Ms McDonald states she asked to speak the CEO of CST and after being told that he was unavailable, Ms McDonald asked to come in for an interview to see him in person. Ms McDonald states that the Business Manager told her that this might be possible, but that it “would not make any difference”.

[14] Ms McDonald also states that in the period between November 2016 and August 2018 she was not told of “this unfair dismissal” until it was disclosed to her by the HR/Payroll person during the telephone conversation. Ms McDonald states that this delay is because of lack of communication and transparency. In relation to the delay after the telephone conversation Ms McDonald states that she needed to contemplate further action and telephoned the Commission prior to filing her application.

[15] In her oral evidence at the hearing, Ms McDonald reiterated what she said in her written material. The explanation for the delay between November 2018 and August 2018 was said to be the fact that Ms McDonald did not know that she had a “black mark” against her name. Ms McDonald said that she initially thought that she was not being offered work because none was available, but later thought that there had been a lengthy period between engagements leading to her decision to make the telephone call to CST. The delay in Ms McDonald filing her application after becoming aware of the black mark was the need to contemplate what action she should take.

[16] At the hearing, I reiterated to Ms McDonald that she needed to establish that there were exceptional circumstances in her case having regard to the matters in s. 366(2) of the Act, including the reason for the delay. I put the proposition to Ms McDonald that there was a delay between the time when she was engaged on 18 November 2016 to the beginning of August 2018 when Ms McDonald states that she contacted CST to inquire as to why she had not been offered further engagements, as well as a delay from the beginning of August 2018 when she discovered the “black mark” against her name, until 18 September 2018 when the application was filed.

[17] Ms McDonald was granted an adjournment to hold a discussion with her support person in relation to the matters I raised with her. When the hearing resumed, Ms McDonald agreed with the proposition that her only explanation for that delay was because she didn’t know that a “black mark” had been placed against her name, but said there should have been more transparency following the engagement in November 2016, and that she felt as if she “had been stabbed in the back”.

[18] In response to questions about the basis of her assertions of discrimination Ms McDonald maintained that her concern was lack of transparency and the unfairness of her treatment in terms of decisions being made about her teaching ability without any discussion. Ms McDonald also said that she is “of ethnic appearance” and has “new ideas” but did not assert that this was the reason for the refusal to offer her further work. Ms McDonald said at the hearing that she acknowledged that the lapse of time and ignorance of the time limit was not enough. Ms McDonald also said she didn’t know what course of action to take, and was told by someone that “Fair Work would be a good idea”.

[19] CST submits that Ms McDonald was engaged on a casual basis as a relief teacher by CST and worked a total of 3.5 hours at Calvin Christian Primary School. An assessment was made by the Deputy Principal (now the Principal) at the completion of Ms McDonald’s assignment as a relief teacher that she did not meet the required standard of performance. The Deputy Principal recommended that she not receive any further relief appointments. CTS agreed that Ms McDonald telephoned its office in August 2018 and spoke to the HR/Personnel Officer and the Business Manager. According to CTS, the Business Manager informed Ms McDonald that she was not on the central register of relief teachers, following the engagement in November 2016 when the Deputy Principal of Calvin Christian School was very dissatisfied with Ms McDonald’s work.

[20] CST agrees that Ms McDonald was advised that she could submit her resume to other schools, but the decision to engage relief teachers was a matter for the Principal or delegate of each school. CST asserts there is no “black mark” against Ms McDonald’s name, and that no other contact was received from Ms McDonald from the time of her one teaching engagement until the call to CST in early August 2018. CST submits that:

● The application is made 669 days outside the legislative time frame which is an extraordinary delay;
● The Applicant has not addressed any of the matters in s. 366(2) in relation to why a further period in which to make the application should be allowed by the Commission;
● The Applicant has not provided an acceptable reason for the extension of time to be granted;
● The Applicant has not provided any explanation for the delay for the period of 18 November up until a few months ago and this is an extremely long period of inaction which should be weighed heavily against the Applicant;
● The Applicant states that it was only a few months ago that she took any action to question her employment status with the school and by her own admission took a few more months to lodge the application and is therefore outside the 21 day period from when she contacted CTS to query her employment status; and
● The Applicant has not actively disputed the decision regarding her ongoing employment for a period of 669 days.

[21] CTS submits that the significant length of time since the Applicant was engaged by the School will cause significant prejudice. In this regard, the Deputy Principal involved in the matter in 2016 no longer works for the School. Further, Ms McDonald has only worked 3.5 hours for CTS on a casual contract. It is further submitted by CTS that on the basis of the material filed by Ms McDonald the application lacks merit.

Legislation

[22] Section 366(2) of the Act provides as follows:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason 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 similar position

[23] The requirement that the Commission be satisfied that there are “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[24] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[25] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

Reasons for the delay

[26] The reasons for the delay advanced by Ms McDonald is that she was unaware that a “black mark” had been placed against her name until early August 2018 when she contacted CST, and, upon learning of this issue in early August 2018, was unfamiliar with the Fair Work Commission, and was unsure of what action she could take.

[27] Ms McDonald learnt of the alleged “black mark” against her name sometime in early August 2018. Ms McDonald was unable to state a specific date upon which the conversations with representatives of CTS took place. As previously stated, Ms McDonald did not file her application until 18 September 2018.

[28] Ms McDonald did not offer any explanation as to why it took her until early August 2018 to contact CST regarding future engagements, when her last and only engagement with CST was for a period of 3.5 hours on 18 November 2016. If Ms McDonald was concerned about the fact that she was not offered any further engagements then that concern took an unusually lengthy period to materialise notwithstanding Ms McDonald’s statement that she assumed no work was available until she decided to telephone CTS in early August 2018. I also note that Ms McDonald’s Form F8 application states that an offer of future engagements made by the Deputy Principal of the Calvin Christian School during the course of her engagement on 18 November 2016 was withdrawn at the end of the engagement. On the basis of the statement in her application, Ms McDonald knew or should have known on 18 November 2018 that there was some issue with her being offered further engagements at least at that school.

[29] Why it took Ms McDonald from November 2016 until early August 2018 to query the fact that she was not being offered engagements by CTS or its constituent schools, was not adequately explained by Ms McDonald. It is also the case that after finding out about the alleged “black mark” in early August 2018, Ms McDonald took no steps to make an application to the Commission until 18 September 2018. Ms McDonald’s explanation for this delay is that she was contemplating what action she should take

[30] Decisions of the Commission and Courts have consistently emphasised that lack of knowledge of a time limitation has been rejected as a ground for the exercise of discretion to grant a further period. 5 Further, “delay on account of ignorance of the statutory time limits is not, of itself, an exceptional circumstance”.6 The fact that Ms McDonald was considering her situation between the telephone conversation in early August 2018 and 18 September 2018 when the application was made, is also of itself not an exceptional circumstance.

[31] Accordingly, I am not satisfied that the reasons for the delay provided by Ms McDonald demonstrate exceptional circumstances and this is a factor that weighs against a further period being granted.

Any action taken by the person to dispute the dismissal

[32] Ms McDonald did not attempt to dispute her alleged dismissal, or to dispute why she had not received further engagements with CST until around 22 months after her first engagement. Further, Ms McDonald did not dispute the information given to her when she called CST in early August 2018, until she filed her general protections application on 18 September 2018. CST submits Ms McDonald did not dispute the decision about the offer of future engagements until she filed her application some 669 days after the single engagement in November 2016, and that it also took Ms McDonald some time even after contacting CST in early August 2018 to file the application.

[33] I accept that Ms McDonald did not make any attempt to dispute the decision of CST’s Calvin Christian School not to offer her future engagements at the school until she contacted CST in early August of 2018. I also accept that when Ms McDonald contacted CST in early August 2018 she did not appear to give any indication that she contested this decision until she filed her application on 18 September 2018. This is a factor that weighs against the grant of a further period.

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

[34] CST submits that granting a further period to Ms McDonald would prejudice the employer in circumstances where Mr Cooper no longer works for the school, and given the significant length of time that has passed since Ms McDonald was engaged by the school. This is more than a mere absence of prejudice, and although evidence from the former Deputy Principal of the relevant school may still be obtained, the added difficulty arising from the fact that he has ceased employment is a matter that weighs against the grant of a further period in which to make the application. Additionally, I am satisfied that CST would be prejudiced in seeking to lead evidence from persons about a conversation or decision that occurred two years ago and in particular, in the context of a single engagement of 3.5 hours.

Merits of the application

[35] In the matter of Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 8

[36] On her application, Ms McDonald selected that CST had contravened s.351 of the Act because she was dismissed on discriminatory grounds, but also hand wrote on the application “and unfair dismissal”. Ms McDonald states on her application that “I believe ‘unfair dismissal’ was undue and due to some form of discrimmation (sic) or personal ‘stereotypes’ this principal had. 1. I am a single mother and 2. I am of ethnic origin, (Russian, Polish), but born in Australia. 3. It may have resulted as a result of slander, lies and deformation (sic) from envy. Possibly from other sources.” At the hearing, Ms McDonald had difficulty asserting the grounds on which she seeks to make her application, apart from disputing the “fairness” of the decision made not to offer her future engagements at the school. Ms McDonald did say that she is of ethnic appearance.

[37] In its Form F8A Employer Response, CST states it does not record information in relation to ethnicity or parental status, and had no knowledge of Ms McDonald’s background or whether she had children. CST also submits that there is no “black mark” against Ms McDonald’s name, and Ms McDonald is able to apply for work and it is up to the principal or delegate of each of CST’s schools as to whether to offer her work.

[38] While a detailed analysis of the merits of an application is not required in assessing this consideration, it appears that Ms McDonald’s application is directed at the fairness or otherwise of what she asserts is a dismissal. It also appears that issues of discrimination are not clearly articulated. While I do not accept that the application is without merit it is not an application that has apparent merit such that this would weigh in favour of a further period being granted. Accordingly, at best, merit is a neutral consideration.

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

[39] Considerations of fairness relative to other persons in similar positions were not addressed by either party, and I do not find this factor to be relevant in this matter, other than to note that in my view, if the basis for a further period being allowed that was advanced by Ms McDonald succeeded, it would be inconsistent with other cases where a further period has been refused. This is also a neutral consideration.

Conclusion

[40] After considering all of the relevant factors and weighing them, I am not satisfied that there are exceptional circumstances sufficient for me to exercise my discretion to grant a further period for Ms McDonald’s General Protections application to be made. Ms McDonald was provided with several opportunities to address the considerations in s.366(2) and has not established a basis for the further period to be granted.

[41] For these reasons Ms McDonald’s request for a further period in which to make her application was refused and the application was dismissed.

DEPUTY PRESIDENT

Appearances:

Ms T McDonald on her own behalf

Mr D Gilman for the Respondent

Hearing details:

Brisbane.

29 October

2018.

Printed by authority of the Commonwealth Government Printer

<PR702022>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288 at [21].

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA

1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group[2011] FWAFB 975 at [13].

 5   Matt Dain v Sam Bradley & Robert Grant[2012] FWA 7276.

 6   Nulty v Blue Star Group [2011] FWAFB 975

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Ibid