Ms Tracy McArdle v Family Life Ltd
[2022] FWC 3370
•23 DECEMBER 2022
| [2022] FWC 3370 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tracy McArdle
v
Family Life Ltd.
(U2022/10995)
| COMMISSIONER WILSON | MELBOURNE, 23 DECEMBER 2022 |
Unfair dismissal application filed out of time – exceptional circumstances – extension of time granted
This decision concerns an application by Ms Tracy McArdle for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms McArdle’s employment with Family Life Ltd (Family Life) was terminated with effect from Monday 10 October 2022. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on Wednesday 16 November 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Monday 31 October 2021. The application was therefore filed 16 days outside the 21-day period. Ms McArdle asks the Commission to grant a further period for the application to be made under s.394(3). Family Life opposes this request.
For the reasons set out below I am satisfied on the material before me there are exceptional circumstances in Ms McArdle’s case. Accordingly, I will allow further time for the making of her unfair dismissal application.
A hearing in respect of the application was held by me on 12 December 2022, at which Ms McArdle appeared on her own behalf and for the Respondent, Ms Eleanor Muscat, Family Life’s Executive Manager, People and Culture, and Ms Kylie Chester, People and Culture Partner. Evidence was given in these proceedings by Ms McArdle on her own behalf, and on behalf of Family Life, by Ms Rebecca Thompson and Ms Amarlie Lilley.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Exceptional circumstances have been defined as circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
BACKGROUND
Ms McArdle was employed by Family Life on 30 November 2020 as a Specialist Family Violence Practitioner under an initial contract of employment which was twice extended, with the final extension being to 30 June 2023. The initial letter of offer and contract states Ms McArdle is classified under the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) at Level 6.[3] The later extensions do not indicate a change to her classification level.
On 6 October 2022 Ms McArdle was advised she needed to attend a meeting the following day with two of Family Life’s managers, Rebecca Thompson, Program Manager – Family Safety & Well-Being, and Ms Chester. At the meeting held on 7 November 2022 Ms McArdle was told it was proposed by Family Life for her employment to end for reason of redundancy. The precise matters discussed in the meeting are not agreed between the parties. Ms McArdle characterises the things told to her as being information,
“that they had over spent their budget and had too many FV Practitioners as well as saying they had re written my job requirements and that left me unqualified.
I was told to stop working immediately, they would call me on the following Monday to see how I was.”[4]
Family Life viewed the discussion that took place as being an initial discussion and more nuanced,
“1. On 7 October, Rebecca Thompson (Program Manager, Family Safety) and Kylie Chester (P&C Partner) met with Tracy to advise that due to a recent review of our Family Safety and Wellbeing Program funding, we had uncovered an issue in our staffing structure and budget.
2. We explained that we had identified that we were over-resourced in Specialist Family Violence Practitioner roles. Following the need to reduce FTE in our Family Safety and Wellbeing Program, one of the criteria we looked at was qualifications. Our Specialist Family Violence Practitioner roles within the new structure all require a minimum Bachelor level qualification at Family Life.
3. Since Tracy does not hold a Bachelor level qualification, we explained that we were unable to place her into this role in the new structure and proposed that her position be made redundant which means that her employment would be terminated.
4. We provided Tracy with paid leave for the remainder of the day and the following Monday 10 October to take time to consider our proposal and provide feedback.
5. We advised that we would contact Tracy by phone on Monday 10 October so she could provide any feedback and we could communicate our final decision to her.
6. We explained her entitlements if her role was made redundant.”[5]
Further Family Life submit that on Monday 10 October,
“Rebecca Thompson contacted Tracy by phone on Monday 10 October 2022 to ask for feedback about the proposed change, of which she had none. Rebecca communicated to Tracy that we were going to go ahead with the proposed changes and confirmed that her role would be made redundant and her position terminated.”[6]
Later the same day Ms Chester provided Ms McArdle with a letter of termination signed by Ms Thompson which informed her, so far as is relevant,
“Due to a recent review of our Family Safety and Wellbeing Program funding, we have uncovered an issue in our staffing structure and budget. Regrettably, we have identified that we are over-resourced in Specialist Family Violence Practitioner roles.
Following the need to reduce FTE in our Family Safety and Wellbeing Program, one of the criteria we looked at was qualifications. Our Specialist Family Violence Practitioner roles within the new structure all require a minimum Bachelor level qualification at Family Life. Unfortunately this means that we will be unable to place you into this role in the new structure.
We are therefore proposing that your position be made redundant which means that your employment would be terminated as we do not have the available funding to continue with surplus positions in the new Family Safety and Wellbeing Structure.
As communicated to you, you were not required to work the remainder of Friday. As advised, we will grant you special paid leave for Monday 10 October 2022. Please take this time to consider if you wish to provide feedback on this change proposal. We will then contact you by phone on Monday 10 October 2022 so that you can provide any feedback and at this point, we will communicate our final decision to you.
If your role is made redundant, as per your entitlements, Family Life will pay you two week’s of pay in lieu of notice of termination. You will also be paid out any unused annual leave you have owing to you. Please see attached full termination estimate.”[7]
Despite the correspondence alluding to a decision yet to be taken, I am satisfied from the overall evidence that the letter, as well as the discussion with Ms Thompson which preceded transmission of the letter, dismissed Ms McArdle on 10 October 2022 with the reasons stated to her being the ones referenced in the letter.
There was a further chain of emails between Ms McArdle and Ms Chester the same day, with Ms McArdle contending that in its meeting Family Life “didn't propose changes, you told me I had lost my job and that I had a right of reply until Monday”. Ms Chester rebutted the contention, as well as admonishing Ms McArdle for “swearing and disrespectful behaviour”.[8] Ms McArdle argues when she spoke with Ms Thompson on 10 October 2022, she “expressed my disappointment saying that I had been shocked as there was absolutely no warning or consultation around this dismissal”.[9]
Family Life put forward that Ms McArdle’s “last day of employment” was Tuesday, 11 October 2022.[10] However, the overall material before the Commission shows this to be an error since it is apparent Ms McArdle was informed on 10 October 2022 that she would be dismissed with effect the same day. Similarly, Ms McArdle is in error in her submission that she was notified of the termination of employment on 7 October 2022 with the dismissal taking effect the same day.
Ms McArdle’s evidence is that having lost her job she “immediately enquired as to whether I had a case, I was told no by the commission, it wasn’t until 28 days after my employment was ended, Family Life advertise a job suited to me at my pay rate.”[11]
Ms McArdle’s evidence is that on 10 and 11 October Ms McArdle contacted “fair work” about her rights who asked, “is this a genuine redundancy?”. When that subject was queried of Family Life it replied “[y]ou were employed by Family Life under the SCHADS Award and this is a genuine redundancy”. [12] On 11 October 2022 Ms McArdle stated to Mr Chester by email that she had that morning spoken with Job Watch and was advised she was entitled to a minimum of four weeks redundancy pay. Ms Chester immediately rejected the claim stating,
“You were employed on a fixed term contract, that is for a 'stated period of time' and are therefore not entitled to redundancy pay. Please see this link: gov.au/ending-employment/redundancy/who-doesnt-get-redundancy-pay. Per your contract, you will receive 2 week's pay in lieu of notice of termination.”[13]
Later the same morning the following exchange took place,[14]
From Ms McArdle – “There is nothing in my contract that says it is Fixed Term. I was issued only one contract when i started my employment, l have never received one that says different”
In reply from Ms Chester – “Your initial contract dated 20 November 2020 has an expiry date of 30 November 2021 which makes it a 'fixed term contract'. You then received two subsequent fixed term contract extensions to 30 June 2022 and again to 30 June 2023. Your position has now been made redundant.”
Ms McArdle’s evidence is that having been dismissed she noticed on or around 14 November 2022 a job advertisement placed by Family Life.[15] copy of the advertisement was provided to the Commission by Family Life showing it advertised a position of “Orange Door Men’s Support Practitioner” classified as a Level 6 employee under the SCHADS Award (the Orange Door Advertisement). The advertisement stated, so far as is relevant,
“The Opportunity
The Orange Door Men's Support Practitioner is a Full Time, 12 months fixed term contract role based at our Frankston site. The Orange Door Men's Support Practitioner will be required to perform intake and assessment functions identifying risk, safety and wellbeing concerns from varying referral pathways such as police reports, child protection referrals and community referrals. This will ensure that Orange Door Clients are supported and provided with and/or linked into effective and relevant services.
Our Ideal Candidate
We are looking ·or a skilled, passionate individual who embodies the Family Life Way principles to deliver trauma informed support to our clients and achieve positive outcomes for communities.”[16]
The advertisement also referenced a lengthy position description which stipulated as one of the “key selection criteria” the need for,
“A relevant tertiary qualification in Social Work, Psychology, Early Childhood Specialist and/or related behavioural sciences at degree level with substantial experience; or associate diploma level with substantial experience in the relevant service stream”[17]
Ms McArdle does not hold a bachelor or associate diploma qualification. The Orange Door Advertisement is ultimately funded associated by the contract from the Victorian Government. Family Life argue that Ms McArdle was not the only employee made redundant at or around the same time and the need for degree or associate diploma level qualifications arose because of recommendations from the Royal Commission into Family Violence which Family Life adopted generally and for the Orange Door position, specifically,
“1. Tracy’s role was not the only role within the Family Safety Program area that was made redundant. There were a total of 6 redundancies; we were able to redeploy 3 staff members into suitable alternative roles and the other 3 (including Tracy) unfortunately had their employment terminated.
2. The reason Tracy’s role was made redundant over other Practitioners in the same position was because following the need to reduce employee numbers (FTE) in our Family Safety and Wellbeing Program, one of the criteria we looked at was qualifications. Our Specialist Family Violence Practitioner roles within the new structure all require a minimum Bachelor level qualification at Family Life. Tracy did not meet the minimum qualification requirement.
3. One of the reasons we decided to make a Bachelor qualification mandatory for all Specialist Family Violence Practitioners was based on the findings of the Victorian Government’s Royal Commission into Family Violence which recommended that all Specialist Family Violence Practitioners must hold a social work or equivalent degree at a minimum. These recommendations came into effect on 1 July 2021, approximately 8 months after Tracy was first employed by Family Life. The intent of this recommendation for mandatory minimum qualifications is to support the increased visibility and professionalisation of family violence specialists in a way that respects the significant expertise that already sits within the sector.
4. To reflect best practice in the field, Family Life made the decision to make this a mandatory qualification for our Specialist Family Violence Practitioners going forward.”[18]
Having seen the advertisement Ms McArdle commenced her application to the Fair Work Commission for unfair dismissal remedy on 16 November 2022 at 5:25 PM.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[19]
Ms McArdle’s unfair dismissal application is 16 days out of time with me being satisfied that the reason for the delay in making the application is wholly attributable to the fact that having initially queried her dismissal with Family Life and having had those queries firmly rebutted Ms McArdle reluctantly accepted the explanations given to her and then did not have cause to question those matters again until she saw the Orange Door Advertisement on or around 14 November 2022. The evidence shows that she assertively and proactively sought advice about her situation proximate to the date that it took effect, 10 October 2022; relayed that advice to Family Life for its response; and received a firm rejection of the propositions that she put forward. In the context of the overall matter there was not much more that she could do as there was no ambiguity in the Respondent’s communication to her that her termination was a genuine redundancy and that she was not entitled to redundancy pay of any kind.
I am satisfied that it was only when Ms McArdle saw the Orange Door Advertisement on or around 14 November 2022 that her concerns about her dismissal were reactivated. I am satisfied that she then promptly made an unfair dismissal application to the Commission. Such delay as there may be between the time of her learning of the Orange Door Advertisement and the date and time of her actual lodgement of an unfair dismissal application is reasonable in the circumstances. At most the delay between learning of the advertisement and making the application was something around 48 hours, which in the circumstances cannot be considered to be prolonged or dilatory.
The reason for the delay in Ms McArdle is making an unfair dismissal application is that it was not until on or around 14 November 2022 that she had cause to consider that the making of such application was warranted. My finding in this regard leans in favour of there being an extension of time for the making of Ms McArdle’s unfair dismissal remedy application.
Whether the person first became aware of the dismissal after it had taken effect
Ms McArdle was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration in my determination of whether there are exceptional circumstances.
Action taken to dispute the dismissal
The evidence before the Commission demonstrates that having been dismissed Ms McArdle promptly sought advice of “fair work” (with it not been clear to me as to whether this was a communication either with the Fair Work Commission or the Fair Work Ombudsman) as well as Job Watch. This advice was sought within a day or two of having been dismissed and she relayed the product of the advice to Family Life for its response. The communications before the Commission about those steps would suggest that Ms McArdle was seeking acceptance on the part of Family Life at that time for recognition that a redundancy payment should be made to her. It is unclear on the evidence presently before me as to whether Ms McArdle would have accepted an offer on the part of Family Life at that time for the payment of the statutory redundancy benefits or whether she sought a greater benefit. Objectively viewed Family Life could be regarded as having been on notice at that time, within a few days of Ms McArdle’s termination of employment, that she did not necessarily accept all that was said to her at the time of termination.
Consideration of this criterion leans in favour of the Applicant for a finding of being exceptional circumstances, but likely not decisively so as the contentions on the part of Ms McArdle about her termination of employment were not taken beyond a few days after the dismissal took effect.
Prejudice to the employer
I cannot identify any prejudice that would accrue to Family Life if an extension of time were to be granted, and none is asserted by the Respondent. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances in this particular case.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[20] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[21]
Ms McArdle’s case in relation to a potential finding of unfairness rests on the argument that having been dismissed for reason of purported genuine redundancy, such contention on the part of Family Life is unable to be sustained, partly because she questions the legitimacy of the decision to terminate her because of the recent changes in Family Life’s financial or operational requirements. More significantly she questions whether the Orange Door job is one that she could have undertaken and reasonably been considered for, notwithstanding that she did not have degree or associate diploma qualifications as sought by Family Life.
Ms McArdle also contends that the discussion with her about the potential for termination of employment were not consultations as may be required under the SCHADS Award.
Such contentions on the part of the Applicant rely upon consideration of the provisions within s.389 of the Act which defines the meaning genuine redundancy. It is unclear on the present evidence whether it could be said that it would have been reasonable in all the circumstances for Family Life to consider Ms McArdle’s redeployment into the Orange Door position. Ms Lilley’s evidence is that a position became vacant on 21 October 2022 when an incumbent resigned and that in considering what to do Family Life chose to advertise a “new pilot role”, in the form set out in the Orange Door Advertisement.[22] Ms McArdle had left the organisation by 21 October 2022 and it may be that with further evidence the consideration in s.398(2) concerning the reasonableness of redeployment does not fall in favour of Ms McArdle. The merits of the other aspects of the Applicant’s case regarding whether the termination of employment was a “genuine redundancy” are ones that likely may only be resolved through appropriate further evidence of all the circumstances.
On the other hand, the Respondent’s case, which also has not been developed in any substance before the Commission at this time, puts forward that its financial circumstances prior necessitated the termination of Ms McArdle and five others in October 2022; that it properly consulted with Ms McArdle on the subject, and finally that Ms McArdle was not suitable to be considered for the new Orange Door position owing to her qualifications and the changes in its policies about the requirements for appointment to those positions.
The Respondent’s decision to in future engage only people with degree or associate diploma level qualifications is a matter referred to within the termination letter, with it appearing to be the basis of selection for redundancy, although there is no probative evidence on the subject. It is unlikely that such a decision would have come about simply with the stroke of a pen and it likely would have required consultation with employees and their representatives as required by Clause 8 of the SCHADS Award. The extent to which this was the basis for selection for redundancy, or whether it was reasonable to do so is not explored in the Respondent’s present evidence. This is not to predetermine these matters, but merely to advert to them as matters that cause a potential lower weight to be assumed of the Respondent’s case at this time and a correspondingly greater weight to the Applicant’s.
Further Family Life argue that Ms McArdle was not entitled to redundancy pay since she was engaged under a fixed term contract. Such contention appears highly contestable on the part of Ms McArdle given that the initial contract refers to an expiry date and then earlier termination of employment “in accordance with the terms of this Contract”[23] which does not appear to make reference to termination for reason of redundancy.
In the circumstances and notwithstanding that the evidence has not been developed sufficiently by either party I consider this criterion weighs in favour of a finding of exceptional circumstances. There is at least a case to be answered on the part of Family Life as to whether the termination of Ms McArdle meets each of the tests within s.389. The argument that it operational requirements had changed is not yet firmly established and it would require comprehensive evidence for its validity to be accepted. The limited evidence on the matter of consultation with Ms McArdle about the prospect of her redundancy suggests what was said was perfunctory and not with the intention of discussing alternatives, and certainly not those which did not involve terminating someone who did not hold a bachelor’s degree or associate diploma. If the Respondent’s case about “genuine redundancy” does not hold, then it will be necessary to explore the matters alluded to above for the purposes of s.387 and, in the event unfairness is established, for remedy.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[24] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[25] In relation to the question of fairness as between applications arising out of the same employer, although it must be noted that other people were terminated also for reason of redundancy at or around the same time as Ms McArdle, it is unknown as to whether any of those have taken actions to dispute their dismissal either before the commission or elsewhere. This matter is therefore a neutral consideration to in determining whether there are exceptional circumstances in relation to Ms McArdle’s application for unfair dismissal remedy.
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms McArdle, I am satisfied that there are exceptional circumstances that would warrant an extension of time for the making of her application for unfair dismissal remedy. Such delay as there was in making Ms McArdle’s application is attributable to her initially being rebuffed in her approaches about the legitimacy of her termination and that learning only on or around 14 October 2022 that a job was advertised which she thought was similar to that which she filled. She took action at an early stage to dispute her dismissal and did not pursue those approaches when they were firmly rejected by Family Life. In addition the merits of Ms McArdle’s would appear to have some basis, if not quite at the level of being “highly meritorious”.
As a result of the foregoing, I find that there are exceptional circumstances for the making of a late application front for dismissal remedy by Ms McArdle and that an order should be issued by the Commission extending the period for the making of her application to the day it was made, 16 November 2022. An Order to that effect is issued at the same time as this decision.
Having extended the time for the making of Ms McArdle’s unfair dismissal application it will now be necessary to program the matter for a hearing of its merits. My Chambers will communicate with the parties in the early New Year about a timetable for the receipt of evidence and submissions on the merits of Ms McArdle’s unfair dismissal application.
COMMISSIONER
Appearances:
Ms T McArdle for herself
Ms E Muscat with Ms K Chester for the Respondent
Hearing details:
Melbourne (via video conference);
12 December 2022.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975,[13].
[2] Ibid.
[3] Tracy McArdle Fixed Term Contract 30 November 2020 to 30 November 2021, Digital Hearing Book 77.
[4] Applicant Outline of Argument – Merits, Digital Hearing Book 21.
[5] Respondent Outline of Argument – Objections, Digital Hearing Book 48.
[6] Applicant Outline of Argument – Extension of Time, Digital Hearing Book 35.
[7] Tracy McArdle Employment Termination Letter, Digital Hearing Book 109 – 110.
[8] Emails Between Applicant and Respondent Regarding Redundancy, Digital Hearing Book 73.
[9] Applicant Outline of Argument – Merits, Digital Hearing Book 24.
[10] Respondent Outline of Argument – Objections, Digital Hearing Book 35.
[11] F2, Digital Hearing Book 7.
[12] Emails Between Applicant and Respondent Regarding Redundancy, Digital Hearing Book 72 – 73.
[13] Ibid 71.
[14] Ibid 70.
[15]Applicant Outline of Argument – Merits, Digital Hearing Book 20.
[16] Job Advertisement – Men’s Support Practitioner, Digital Hearing Book 103.
[17] Job Advertisement – Men’s Support Practitioner, Digital Hearing Book 106.
[18] Respondent Outline of Argument – Objections, Digital Hearing Book 36.
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[20] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[21] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[22] Transcript, PN 145, 164 – 167.
[23] Tracy McArdle Fixed Term Contract 30 November 2020 to 30 November 2021, Digital Hearing Book79.
[24] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[25] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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