Narelle Rooney v Shire of Manjimup

[2016] FWC 7590

[2016] FWC 7590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Narelle Rooney
v
Shire of Manjimup
(U2016/10975)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 OCTOBER 2016

Application for relief from unfair dismissal.

[1] Ms Narelle Rooney alleged that the termination of her employment by the Shire of Manjimup was unfair.

[2] The Shire posted Ms Rooney’s letter of termination on 3 June 2016 and it is not contested that it was not received until 8 June 2016. As such, the dismissal took effect on 8 June 2016.

[3] Her unfair dismissal application lodged on 5 September 2016 was therefore not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Ms Rooney gave evidence that she received her termination letter on 8 June 2016 which advised her that her employment was terminated. That letter was dated 30 May 2016.

[7] On 18 June 2016, Ms Rooney sent an email to the Shire seeking reconsideration of the decision. In that letter she advised that she was about to go on extended leave. Ms Rooney left Australia on 18 June 2016 and returned on 31 July 2016.

[8] On 20 June 2016, the Shire sent Ms Rooney a letter advising her that it had reviewed the decision but it would not change. Ms Rooney received this letter when she returned to Australia. Having reviewed the letter, Ms Rooney decided to lodge an unfair dismissal application. She said it was then that she found out about the 21 day time limit.

[9] Ms Rooney was required to lodge her application by 29 June 2016. She did not immediately seek to have the Shire review the decision. Had she done so, she would have received a response within the 21 days. She said that she delayed sending her request for a review because she was shocked and disappointed at what had happened and it took her time to compose the letter.

[10] The delay was then exacerbated by Ms Rooney’s absence from Australia. However putting that aside, Ms Rooney was aware in the first week of August when she collected her mail that the Shire had not changed its mind and yet she did not lodge her application until 5 September 2016. When asked why, it was not lodged until 5 September 2016 she said she was upset by the process and didn’t know where to turn. She said that she contacted the Fair Work Commission and found out that she could lodge a late application. She did this in the first half of August 2016. When she was then asked why, knowing she was out of time to lodge the application, she still took to 5 September 2016 to lodge the application she said it took her some time to put her application together.

[11] The authorities are clear that seeking an internal review of the decision to terminate employment does not provide an employee with a reasonable explanation for the delay in lodging an unfair dismissal application. Further, had Ms Rooney acted promptly in seeking a review she would have been able to consider the response prior to her departure overseas. There was no evidence that she took any steps to find out about any unfair dismissal rights prior to her departure. Ms Rooney’s ignorance of her unfair dismissal rights does not provide her with a reasonable explanation for the delay. Further, once Ms Rooney was made aware of her rights, she did not act promptly to lodge her application.

[12] I am therefore not satisfied that Ms Rooney has provided a reasonable explanation for the delay. This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[13] Ms Rooney’s dismissal did not take effect until she was notified of the dismissal. In this case I accept her evidence that this occurred on 8 June 2016. She therefore had the full 21 days after that date to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[14] Ms Rooney disputed her dismissal and sought a review. While this was not done promptly, it weighs in favour of a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[15] There was no evidence or submission about any prejudice to the Shire. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[16] In the matter of Kornicki v Telstra-Network Technology Group² the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.”³

[17] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.”⁴ 

[18] Ms Rooney was employed as a casual relief library officer. She had been employed in this position since January 2008. In 2016 the Shire undertook a review of casual staff who had not been engaged by the organisation for a period of three months or longer who it considered had no foreseeable prospects for future reengagement and notified Ms Rooney that her employment was terminated.

[19] Ms Rooney said that there was a dispute about her return to work during 2015 which had not been resolved until February 2016. It was her evidence that she was asked in 2015 if she would drop her compensation claim if she was given 15 hours per week work. She says she was dismissed because of her injury.

[20] The Shire submitted that Ms Rooney was employed on an irregular and unsystematic basis. It said she had only worked one shift between 7 May 2015 and 30 May 2016. However it did not provide any evidence about whether Ms Rooney had met the minimum employment period. While she may not have worked on a regular and systematic basis from 7 May 2015 that does not mean she had not been employed for the minimum period of employment.

[21] Ms Frances Bullock gave evidence that in 2015 she conducted a review of all the library’s operations. She decided to give priority for casual work to two students who were undertaking their Masters and that work previously performed by paid staff was given to volunteers. Hence there were very few other hours available for casual staff. Ms Rooney said that other casual staff still received shifts.

[22] Ms Rooney complained that she had not been consulted about this review and that she was not told when she finally got her clearance that she would not be offered further work.

[23] While I am unable to make a final assessment of whether the decision to terminate Ms Rooney’s employment was for a valid reason, what is clear on the evidence before me is that the decision to terminate Ms Rooney’s employment was made prior to her been advised of the reason and being given an opportunity to respond. If, as the Shire claims, it had operational reasons for its decision there was no evidence that it consulted with Ms Rooney about these changes once the decision had been made.

[24] However I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties.

[25] I am satisfied that Ms Rooney’s claim that the dismissal was unfair is arguable and this weighs in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[26] There was no evidence that there were any persons in a similar position. I consider this criterion to be neutral.

Conclusion

[27] I am not satisfied that there are exceptional circumstances. While Ms Rooney did dispute the dismissal she did not do so promptly and therefore contributed to her delay in lodging the application. Whilst her claim is arguable the lack of a reasonable explanation for the whole of the delay outweighs the other criteria.

[28] Ms Rooney’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

N. Rooney on her own behalf.

D. Msapenda for the Respondent.

Hearing details:

2016.

Melbourne and Perth by telephone link:

October 19.

1 [2011] FWAFB 975.

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

3 Ibid.

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR586679>