Nicholls v Police Citizens Youth Club NSW Ltd T/A PCYC

[2017] FWC 1079

[2017] FWC 1079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholls
v
Police Citizens Youth Club NSW Ltd T/A PCYC
(U2016/14228)

COMMISSIONER SAUNDERS NEWCASTLE, 13 MARCH 2017

Application for an unfair dismissal remedy – extension of time refused – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (the Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Samantha Nicholls (the applicant) a further period for her unfair dismissal application (the Application) to be made.

The jurisdictional objection

[3] On 17 February 2017, a hearing was conducted in relation to the applicant’s application for an extension of time.

[4] The applicant tendered a number of documents and gave oral evidence in support of her application. The respondent cross examined the applicant, but did not call any witnesses. The respondent tendered documents attached to its written submissions.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[6] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

[7] Ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 4

Consideration

Paragraph 394(3)(a) - reason for the delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the unfair dismissal application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 9 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:10

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Summary of positions taken by each party in relation to the date of dismissal

[12] In her Application, the applicant states that her dismissal took effect on 8 September 2016, but she was notified of her dismissal on 14 November 2016. As to the reasons for her Application being lodged late, the applicant gave the following explanation in her Application:

“It wasn’t until I seeked (sic) legal advice that I found out I was able to claim unfair dismissal as it wasn’t a clear termination, as far as I was aware I was still on the books and they would contact me for future fill in work. I sent a complaint to State Office to Mandy Hall about the way they have stopped me a regular employee – I will attach with this application. I made an online lodge (sic) on 14-11-2016 and rang today to find out how it was going but the claim hadn’t gone through so I’m doing it again.”

[13] The respondent contends that the applicant was dismissed on 8 September 2016 and she became aware of her dismissal on that date.

Relevant chronology of events

[14] The applicant commenced work for the respondent in July 2015 as a casual head coach.

[15] In about December 2015, the applicant commenced working full time hours to perform the duties of the head coach role. She was still engaged as a casual employee during this period of time.

[16] In about mid 2016, the job of head coach was advertised and the applicant applied for it. On about 17 August 2016, the applicant attended an interview for the job of head coach. About a week later the applicant was told that the job of head coach was being re-advertised because there were no suitable applicants and the previous advertisement was incorrect. In about late August 2016, the applicant voluntarily stood down from the temporary role of head coach.

[17] On 31 August 2016, the applicant discussed with managers from the respondent her intention to continue working for the respondent as a casual coach.

[18] On 8 September 2016, the applicant received a call from the new manager, Graeme, in relation to her employment with the respondent. In my view, the most reliable evidence in relation to that conversation is the content of an email sent by the applicant to the respondent on 12 September 2016 in which she set out her “concerns regarding issues I had during my employment with PCYC”, including: 11

“Upon meeting with him [Graeme], he explained I was neither terminated nor employed at Maitland PCYC and that I am no longer needed now or in the near future. I informed him I was feeling confused as the previous week we had discussed my employment status confirming I will be coaching afternoon classes and only a month ago I was a successful head coach for Maitland. He said he was restricted on the information he could provide to me regarding the matter and implied there may still be a job opportunity in the future. When I asked why I was no longer needed, he said there was no real reason apart from being unreliable with my sick days (which was already organised with management). Graeme dealt with the matter best he could in a very professional manner. He arranged for me to come in and say by to the gymnasts which I am very grateful for.

● Conclusion

I received a phone call that week from other PCYC staff that did not know about the circumstances, saying they had talked with Justine Russell and she had told them I was no longer working for PCYC because I was running birthday parties with another club. That’s when I became concerned about my reputation as a coach because false allegations are being made between higher management staff.

Many coaches and officials in the gymnastics community have now been fed incorrect information as to why I no longer work at Maitland PCYC due to the unprofessionalism of the process. It concerns me as I do not want my name falsely tainted in any way. I’m disappointed with the process of the recruitment and feel as though their true intentions were communicated effectively with me, resulting with this outcome.” [emphasis added]

[19] On 2 November 2016, the applicant signed a statement in support of her claim for workers’ compensation benefits. In that statement, the applicant asserted that she was operating her own business which “has been operating since the 27 September 2016. I only started this business after I injured my elbow and my work at the Maitland PCYC ceased on the 8 September 2016… I had to start this business as a result of being told my services at the Maitland PCYC were no longer required on the 8 September 2016.” The following parts of that statement are also relevant to the applicant’s request for an extension of time to file her Application:

“18. I have provided a copy of a grievance complaint I have forwarded to the PCYC Head office. This outlines the exact circumstances of my employment with PCYC Maitland and the cessation of my employment with the PCYC on the 8 September 2016…

19. In regards to the incident where I injured my left elbow, I had been informed by the new PCYC manager, Graeme Bradley, on the 8 September 2016 that my services were no longer needed at the time. He said to me ‘It’s not that you’re terminated or employed, you’re just no longer needed for coaching until further notice.’

20. Graeme had only been at the PCYC for about a week or so, and he didn’t really know the reason why I was no longer required to work there. It was all a bit confusing for me as I didn’t understand what my employment was with the PCYC and I have still never received any formal notification that my employment has been terminated. I was of the understanding that they were going to call me if they needed me to work.

21. In the day or two after Graham told me that I was no longer needed, there was some conversations between us about me coming back to see the Level classes that I was teaching so I could say goodbye. He agreed to this as they were all of the competitive classes that I was coaching. I asked to come and say goodbye to the kids and he said he would get some advice and get back to me. He rang me back and told me was okay for me to come in on Friday and say goodbye to the kids.

22. We agreed that I could come back at 4:30pm on Friday the 16 September 2016 so I could see the classes. Graeme did tell me that I was only coming in as a guest. I remember being told that I was to be gone by 6:00pm.

23. I was not there to teach classes I was just there to say goodbye to the kids and the parents…”

[20] The applicant injured herself when she performed a twisting somersault on the double mini trampoline at her “goodbye” function on 16 September 2016.

[21] In her oral evidence, the applicant stated that she became aware that she was no longer employed by the respondent when she received a letter dated 28 October 2016 from the respondent’s workers’ compensation insurer, GIO.

[22] The applicant has not undertaken any work for the respondent since 8 September 2016, nor has she received a separation certificate or a termination letter.

[23] After attempting (without success) to lodge her Application online on 14 November 2016, the applicant ultimately lodged her Application on 29 November 2016.

Findings concerning date of dismissal and reasons for delay in making the Application

[24] There is no dispute between the parties that the applicant was dismissed by the respondent. The issue I need to decide is when that dismissal took effect.

[25] On the basis of the evidence set out in the email from the applicant to the respondent on 12 September 2016, I am satisfied, on balance, that the applicant’s dismissal was communicated to her on 8 September 2016. The message given to the applicant on that day by her manager was not without ambiguity, in that the applicant’s manager told her she was “neither terminated nor employed” and “implied there may still be a job opportunity in the future”. However, the applicant accepts that her manager told her on 8 September 2016 that she was “no longer needed now or in the near future”. The applicant went on to ask her manager on that day why she was no longer working for the respondent. She also referred in her email of 12 September 2016 to the fact that she no longer worked for the respondent. Those matters suggest the applicant understood on 8 September 2016 that her employment with the respondent had come to an end, albeit she may be offered further casual employment at some undefined point in the future. I am satisfied that a reasonable person in the applicant’s position would have construed the words spoken to her by her manager on 8 September 2016 as the communication of a decision by the respondent to terminate her employment with effect on that day. Accordingly, the Application was lodged 61 days out of time. 12

However, even if, contrary to my finding set out in the previous paragraph, the applicant’s dismissal only took effect when she says she became aware of her dismissal on the day she received the letter dated 28 October 2016, her Application would still have been lodged out of time and I would not have been satisfied that there were exceptional circumstances warranting an extension of time.
[26] The applicant relies on the following reasons for the delay in filing her Application:

● The applicant was confused as to whether or not she was dismissed in the period after 8 September 2016. The applicant was not aware that she was dismissed until she received the letter from GIO dated 28 October 2016;

● The applicant’s main priority after she injured her elbow on 16 September 2016 was to get her elbow fixed;

● The applicant took a significant amount of time to prepare her workers’ compensation claim;

● The applicant was informed by Legal Aid on about 11 November 2016 that she could make an unfair dismissal claim; and

● The applicant tried to lodge her Application online on 14 November 2016, but was unsuccessful in doing so.

[27] While I am sympathetic to the applicant’s circumstances and the ambiguity in the message given to the applicant by her manager on 8 September 2016, I am not persuaded that the applicant’s difficulties were out of the ordinary course, unusual, special or uncommon.

[28] This factor weighs against granting the applicant an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[29] For the reasons set out in paragraph [25] above, I am satisfied that the applicant became aware of her dismissal on the day it took effect (8 September 2016). As a result, I consider this to be a neutral factor.

[30] Even if I had been satisfied that the applicant had not become aware of her dismissal until about 28 October 2016 and weighed this factor in the applicant’s favour, I would have reached the same conclusion, namely I would not have been satisfied that there were exceptional circumstances warranting an extension of time.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 13

[32] The applicant engaged in communications with the respondent following 8 September 2016, challenging her dismissal. She therefore took action to dispute the dismissal. This factor weighs in favour of granting an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[33] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[34] A long delay gives rise “to a general presumption of prejudice”. 16

[35] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 17 No such evidence was adduced by the respondent in this case.

[36] In all the circumstances of this case, I am satisfied that prejudice to the employer is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[37] In Kornicki v Telstra-Network Technology Group 18the Commission considered the principles applicable to the extension of time discretion under the former section 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.” 19

[38] On the basis of the evidence before me, I am satisfied that the applicant’s substantive application is not without merit. However, I am not in a position to form a view about the likely success of the applicant’s unfair dismissal case because I have not heard evidence on a whole range of issues from a number of different witnesses. In those circumstances, this factor weighs slightly in favour of granting an extension of time.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[39] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[40] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[41] Having taken into account the matters referred to in paragraphs [12] to [41] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[42] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Ms S Nicholls on her own behalf;

Ms L Street, Consultant from Leana Street Consulting Pty Ltd, on behalf of the respondent.

Hearing details:

2017.

Newcastle:

February, 17.

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Section 394(3) of the Act.

 3 [2011] 203 IR 1

 4   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 5   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 6   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31]

 10   [2016] FWCFB 349 at [31]

 11   Exhibit A5 (penultimate page)

 12   21 days after 8 September 2016 (not including 8 September 2016) is 29 September 2016. 29 November 2016 is 61 days after 29 September 2016.

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 14   Ibid.

 15   Ibid.

 16   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

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

 19   Ibid.

 20   [2016] FWCFB 6963

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