National Tertiary Education Industry Union-Victorian Division v Swinburne University of Technology

[2016] FWC 4162

[2016] FWC 4162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

National Tertiary Education Industry Union-Victorian Division
v
Swinburne University of Technology
(C2016/3146, C2016/3147 and C2016/3148)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JUNE 2016

Application for general protections – involving dismissal – extension of time.

[1] The National Tertiary Education Union lodged three applications alleging that Mr William Davis, Dr David Gillam and Dr Fiona McAllan were dismissed.

[2] Each of the applicants had been employed as sessional staff by Swinburne University of Technology.

[3] In each case the NTEU alleged that the reason the employees were dismissed was to prevent them exercising a right under the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2015. The Agreement provided that sessional employees could apply for conversion to the position of Academic Tutor if they met certain conditions. The NTEU alleged that Swinburne did not offer the employees work to prevent them exercising this right. Swinburne denied that it had dismissed the employees and denied the specific allegations.

[4] The NTEU alleged that the date of Dr Gillam’s dismissal was on or around 1 February 2016 and for Dr McAllan on 8 February 2016. The applications for both of these employees were not lodged within 21 days of the alleged dismissal.

[5] In its application the NTEU had alleged that Mr Davis was dismissed on or around 27 February 2016 but at the hearing the NTEU advised that Mr Davis was not dismissed until 15 March 2016 and hence the NTEU did not press the application for an extension of time.

[6] At the hearing I granted permission for the NTEU to be legally represented. I accepted their submission that it would enable the matter to be dealt with more efficiently given the complexity of the matter and it would be unfair to not grant permission because the NTEU was not able to represent itself effectively. Swinburne did not oppose the application.

[7] While there was a dispute about whether Dr Gillam and Dr McAllan were dismissed, it is clear that this is not a matter the Commission must decide 1 and it is conceded by the NTEU that an extension of time is required in both cases.

[8] The 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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2 where the Full Bench said:

“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]

The reason for the delay

[10] The NTEU submitted that the delay was caused by two factors. First it submitted that neither Dr Gillam nor Dr McAllan knew that their employment was dismissed at law. It submitted that they had no reason to suspect that the reason they were not offered work in semester one was because of a decision of the University to prevent them from exercising their conversion rights. Further, the NTEU submitted that both Dr Gillam and Dr McAllan placed themselves in the hands of the NTEU which did not lodge the applications until after it had provided Swinburne with the opportunity to investigate the allegations as well as conducting an investigation itself and seeking legal advice.

Dr Gillam

[11] On 7 December 2015, Dr Gillam advised Dr Sukhorukova that he was available for sessional teaching. On the same day he was advised by Dr Sukhorukova that they did not have a teaching allocation and suggested he contact another person. On 1 February 2016, Dr Gillam again contacted Dr Sukhorukova to see if there was any work available. He was told that, because of the implementation of the new workload model, everyone got more tutorials and he was told that there was no work available for him. He then contacted another member of staff and was told that it was unclear how much, if any, sessional work would be available for him. 3

[12] On 29 February 2016, Mr Josh Cullinan from the NTEU contacted him and he was told by Mr Cullinan that he had been told that Dr Gillam was not being offered work because he was entitled to apply for conversion. 4 Dr Gillam said that this was the first time he had heard of this decision.

[13] Dr Gilliam asked Mr Cullinan if it was wrong and if the NTEU was going to do something about it. He told Mr Cullinan that he should proceed with the issue and he agreed with the proceeding.

[14] On the same day the NTEU sent Dr Gillam an email about the issue. That email advised that the NTEU had received reports about sessional staff not being engaged to avoid staff being entitled to convert under the Agreement. It advised that the NTEU and Senior Management would investigate the issue. The email sought further information from NTEU members. 5

[15] On 2 March 2016, Dr Gillam responded to the NTEU email and detailed the work he had had undertaken in the past and the communication he had with Swinburne. 6 Mr Cullinan replied on 3 and 10 March 2016. Dr Gillam was contacted by a representative of Swinburne and Dr Gillam answered her questions.7

[16] On 10 March 2016, Dr Gillam had a discussion in relation to a teaching position with Swinburne PAVE which is not part of the higher education part of Swinburne. As a consequence Dr Gillam commenced working on a sessional basis in that program in May 2016. 8

[17] On 22 March 2016, Dr Gillam received further information from the NTEU about the issue and on 23 March 2016 Mr Cullinan sought further information from Dr Gillam to enable the application to be completed. On 24 March 2016, Dr Gillam provided this information and the application was lodged the same day.

[18] Dr Gillam gave unchallenged evidence that he understood that the NTEU would take all necessary steps to progress the matter and he relied upon the NTEU to undertake the investigation necessary to determine the true reason for his dismissal. 9

Dr McAllan

[19] Dr McAllan was advised on 18 August 2015 that she would not be rostered to work in SP4 but would be offered work in SP1 and 2 in 2016. Dr McAllan accepted the rational for this, namely to ensure that work was shared. 10 On 8 February 2016, Dr McAllan wrote to confirm that she would be working in SP1 and was told that there was no work available due to a lack of students.11 There was an exchange of emails with Dr McAllan questioning why she was not being offered work and asking for an explanation.

[20] On 29 February 2016, Dr McAllan received an email from the NTEU (referred to at paragraph [14] above). She contacted Mr Cullinan on 1 March 2016 and on 2 March 2016 she gave him information about her rosters and told him what Swinburne had told her. On 9 and 10 March 2016, she followed up with Mr Cullinan to determine what else she needed to do. On 10 March 2016, Mr Cullinan responded and sought further information and on 11 March 2016 she responded. She made inquiries of other staff and concluded that the explanation provided to her about why she was not offered work was “rubbish”. 12

[21] There was further correspondence and conversations with Mr Cullinan from 14 to 23 March 2016 and on the 23 March 2016 she advised that she wanted the NTEU to lodge the application. 13

[22] She gave uncontested evidence that she relied upon the NTEU for support and advice. 14

Mr Cullinan

[23] Mr Cullinan was the industrial officer with the NTEU who had carriage of this matter.

[24] In December 2015 and February 2016 the NTEU was involved in a dispute with Swinburne relating to research expectations and workload allocations for non-sessional academic staff and consultation obligations in relation to sessional academic staff. The dispute was resolved. 15

[25] On 11 February 2016, Mr Cullinan attended a meeting of non-sessional staff and at that time some staff advised Mr Cullinan that senior management was organising to prevent sessional staff working in 2016 if those staff might be eligible to apply for conversion under the Agreement. In particular, a person told him that Dr Gillam would not be offered work because he would be eligible to apply for conversion. 16

[26] As a result Mr Cullinan raised concerns with senior managers of the Respondent and Dr Andrew Smith, a Vice President with the Respondent, who offered to undertake an investigation if Mr Cullinan provided him with the names of affected employees. 17

[27] On 29 February 2016, Mr Cullinan sent the email referred to a paragraph [14] to a list of past sessional employee. 18 He had responses relevantly from Dr Gillam and Dr McAllan.19

[28] On the same day Mr Cullinan spoke to Dr Gillam and he told him what he had been told on 11 February 2016. Mr Cullinan asked Dr Gillam if he could provide his name to Dr Smith to enable him to conduct an investigation. He agreed and Mr Cullinan advised Dr Smith. On 2 March 2016, he followed up with Dr Smith and received a final response on 3 March 2016 in which he was advised that there did not appear to be any untoward practices in relation to Dr Gillam. 20

[29] On 4 March 2016, Mr Cullinan issued Swinburne with a right of entry notice and on 8 March 2016 he exercised his right of entry. Mr Cullinan said he was not provided with all the documents he sought. Further correspondence was exchanged about these issues and on 11 March 2016 Swinburne wrote to the NTEU and advised that Dr Gillam had not been denied work because he had a right to convert. 21

[30] On 21 March 2016, the NTEU sought legal advice and Mr Cullinan sought and gained approval from the NTEU to commence proceedings in relation to Dr Gillam, Mr Davis and Dr McAllan.

[31] On 22 March 2016, Mr Cullinan again wrote to sessional staff at Swinburne seeking those who had had a reduction in hours to contact him. 22

[32] Mr Cullinan collated the responses and on 24 March 2016 the NTEU lodged the application.

[33] Mr Cullinan said there was significant work involved in this matter as there were more than 20 sessional staff who contacted him. He needed to review the particular circumstances of each member. In addition in the period 1 March 2016 to 18 March 2016 Mr Cullinan conducted an investigation into Dr Gillam’s circumstances. 23 Mr Cullinan said he also had other matters that required his attention during this period.24

[34] Mr Cullinan said that the NTEU did not want to make allegations against the University without a proper basis and did not want to give its members false hope in relation to a potential claim. He therefore did not lodge the application until he had all the information and had sought legal advice.

[35] The reasons for the delay fall into two categories:

a) the employees were not aware that they had been dismissed or the reason for the dismissal; and

b) the NTEU was required to conduct an investigation and obtain legal advice prior to making the application.

[36] I accept that it is often difficult for a casual employee to know if he or she has been dismissed. In this case the employees were advised on 29 February 2016 of the NTEU’s concerns. They responded to the NTEU and provided it information about their particular circumstances. The NTEU was first advised about Dr Gillam’s situation on 11 February 2016. It became aware of Dr McAllan’s situation on 1 March 2016.

[37] This case raises some unusual issues. If Dr McAllan or Dr Gillam had been the applicants in this matter then I would be required to examine what the reason for their delay in lodging the application was and they would be able to rely on representative error to explain part of the delay if in fact I find there was representative error.

[38] However in these matters the NTEU is the applicant and while it can rely on Dr McAllan and Dr Gillam’s ignorance of their dismissal to explain part of the delay, it is not able to rely on representative error to explain its delay as it did not have a representative. Further, no submission was made that I should have regard to representative error.

[39] I accept that Dr Gillam and Dr McAllan’s lack of knowledge of their alleged dismissal and the reasons for it, provides the NTEU with a reasonable explanation for part of the delay.

[40] Therefore it is necessary to determine whether the NTEU had a reasonable explanation for the subsequent delay.

[41] That delay was in part caused by the decision of the NTEU to:

a) Agree to an investigation by the University;

b) To conduct a wider investigation;

c) To investigate the circumstances of Dr McAllan and Dr Gillam and seek legal advice; and

d) Other time constraints on the responsible officer.

[42] It is not suggested that the NTEU was unaware of the 21 day time limit for lodging a general protections claim.

[43] In Gao v Department of Human Services 25 the Full Bench accepted that a delay due to an employee seeking an internal review was not a reasonable explanation for the delay:

“Furthermore, Mr Gao’s request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.” 26

[44] I therefore do not consider it reasonable for the NTEU to delay making the application to allow it to conduct an investigation.

[45] I also do not consider that the NTEU can rely on its wider investigation to explain why it did not lodge these applications.

[46] While I do not consider it was unreasonable for the NTEU to investigate the circumstances of Dr McAllan and Dr Gillam, the NTEU was aware from 29 February 2016 that both these persons had potential claims. In Dr Gillam’s case, Mr Cullinan was altered to a possible case for him on 11 February 2016. Mr Cullinan had all the information Dr Gillam had on 2 March 2016 and all the information Dr McAllan had on 18 March 2016. There was no requirement for the lack of information about Dr McAllan to delay the lodgment of Dr Gillam’s application. Further once the information had been provided by Dr McAllan there was no reason to delay lodging her application.

[47] It is not unusual for an applicant to want to seek legal advice before making a claim however given the time limitations it is incumbent on an applicant to seek that legal advice prior to the expiry of the 21 days. There was no reason why the NTEU could not have obtained legal advice prior to 21 March 2016.

[48] While a party lodging a general protections application should not do so if the application has no reasonable prospects of success, the imposition of the 21 day time limit itself means that applications will often have to be made before legal advice can be obtained and before the parties have had an opportunity to resolve the matter between themselves. It means a party will have to lodge an application before they have had a proper opportunity to assess all the evidence. However, in general protections dismissal claims the process involves the parties in conciliation rather than litigation and there is time during this process for a party to obtain advice and gather evidence.

[49] I do not, in this case, consider that the delay in obtaining legal advice was reasonable. The NTEU is a registered organisation. Its officials are not unfamiliar with the general protections provisions of the Act and the NTEU could have filed the applications prior to obtaining legal advice. If that advice was negative it could have reassessed its position.

[50] I am satisfied that the NTEU has a reasonable explanation for some of the delay but not all of the delay.

[51] In relation to Dr Gillam I am unable to find that the NTEU had a reasonable explanation for the delay. It was first alerted to his possible claim on 11 February 2016 but did not make contact with him until 29 February 2016 and then did not lodge his application until 24 March 2016. If, as alleged by the NTEU, Dr Gillam was dismissed on 1 February 2016 it had until 22 February 2016 to lodge the application.

[52] In relation to Dr McAllan she first made contact with the NTEU on 29 February 2016. If, as the NTEU alleged, she was dismissed on 8 February 2016 the NTEU had until 29 February 2016 to lodge her claim.

[53] Given that there was no submission that the NTEU was unfamiliar with the general protections provisions and the time limits that apply, the NTEU did not act promptly in lodging these applications.

[54] This weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[55] Neither the NTEU, Dr Gillam nor Dr McAllan were aware of the dismissal until after it took effect.

[56] This weighs in favour of a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[57] Given they did not know that there was a dismissal, there was no action taken to dispute the dismissal until the NTEU raised its concerns with Swinburne on 11 and 26 February 2016. Swinburne has been on notice since that time that the NTEU was concerned that some of its members had been denied work because of their entitlements under the Agreement to convert. This weighs in favour of a finding that there are exceptional circumstances.

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

[58] There was no evidence or submission about any prejudice to Swinburne. 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.

The merits of the application

[59] In the matter of Kornicki v Telstra-Network Technology Group 27the 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.” 28

[60] 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.” 29

[61] Swinburne submitted that it did not dismiss the employees. However it called no evidence to support its contention. What is clear from the evidence is that, at the relevant time, Dr McAllan and Dr Gillam were not offered work in semester one. It is also clear that Swinburne was aware at least on at 4 December 2016 that there were persons who may be eligible for conversion and were collecting information about the identity of those persons. 30

[62] I am satisfied that the NTEU’s claim is arguable and this weighs in favour of a finding of exceptional circumstances.

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

[63] Commissioner Ryan reviewed the history of this provision in Whittle v Redi Milk Australia Pty Ltd. 31

[64] Relevantly he referred to the Full Bench in Ballarat Truck Centre Pty Ltd v Kerr 32 which considered this provision and said:

“It appears to be clear that s.366(2)(e) should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 application.” 33

[65] The only other person in a similar position to Dr Gillam and Dr McAllan is Mr Davis. He too was represented by the NTEU and his application was lodged at the same time. The only difference is that Mr Davis last performed work on 16 March 2016 and hence his application was lodged within time.

[66] The NTEU made submissions that there will rarely be workers in a similar position. It submitted that that the two individuals were part of a class of employees were eligible for conversion.

[67] I am satisfied that it would be unfair not to permit Dr Gillam and Dr McAllan’s case to proceed in circumstances where the same issues will be ventilated in relation to Mr Davis’ claim. This weighs in favour of a finding that there are exceptional circumstances.

Conclusion

[68] I am satisfied that there are exceptional circumstances. While the NTEU did not have a reasonable explanation for the whole of the delay the other criteria weigh in favour of a finding that there are exceptional circumstances. In exercising my discretion I have had regard to the litigation on foot between the NTEU and Swinburne arising from the same allegation, namely that Swinburne has taken adverse action against employees to prevent them exercising their conversion rights. It would be unfair to Dr Gillam and Dr McAllan if they were denied the opportunity to have their claims heard in circumstances were the claims in relation to other staff who have not been dismissed will be determined. In those circumstances I am prepared to exercise my discretion to grant an extension of time in both matters.

DEPUTY PRESIDENT

Appearances:

S. Kelly, of Counsel, for the Applicant.

E. Jenkin and T. Kelly for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

June 21.

 1   [2013] FWCFB 6321.

 2   [2011] FWAFB 975 at [13].

 3   Exhibit A2 at [5]-[8].

 4   Ibid at [11]-[12].

 5   Submissions of the NTEU at Attachment F.

 6 Exhibit A2 at [14].

 7 Ibid at [16].

 8   Ibid at [19]-[20].

 9   Ibid at [28]-[29].

 10   Exhibit A3 at attachment AM2.

 11   Exhibit A3 at [9]-[10].

 12   Ibid [13]-[21].

 13   Ibid [22]-[30].

 14 Ibid at [32].

 15 Exhibit A1 at [9].

 16   Ibid at [10]-[12].

 17   Ibid [13]-[14].

 18 Ibid at [15].

 19 Ibid at [16].

 20   Ibid at [18]- [22].

 21   Ibid at [23]-[31].

 22 Ibid at [36].

 23   Ibid at [40]-[41].

 24 Ibid at [42].

 25   [2011] FWAFB 5605.

 26 Ibid at [10].

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

 28   Ibid.

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

 30   Exhibit A1 at attachment JJC 7.

 31   [2016] FWC 3773 at [22]-[31].

 32   [2011] FWAFB 5645.

 33 Ibid at [26].

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