Nilakshi Shyama Fernando v Australian New Zealand College of Anaesthetists

[2018] FWC 2221

[2018] FWC 2221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nilakshi Shyama Fernando
v
Australian New Zealand College of Anaesthetists
(C2017/6421)

COMMISSIONER CIRKOVIC MELBOURNE, 8 JUNE 2018

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application

Background

[1] On 20 November 2017 Ms Nilakshi Fernando (“the Applicant”) lodged an application with the Fair Work Commission (“the Commission”) pursuant to s.365 of the Fair Work Act 2009 (“the Act”). The Respondent to the application is the Australian New Zealand College of Anaesthetists (“the Respondent”).

[2] The Applicant commenced employment with the Respondent on 27 April 2011 as an accounts officer. 1 In the Form F8 application the Applicant states that she was dismissed in July 2014.2 On day one of the hearing of this matter the Applicant made submissions that she only became aware of her termination in November 2017.3 The Respondent submits that the termination of the Applicant’s employment occurred on 2 July 2014.4

[3] On 23 February 2018 the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for telephone hearing on 19 March 2018 and then listed again for 16 April 2018.

[4] The Applicant was self-represented. On 19 March 2018 the Respondent’s representative, Ms Pallot, sought permission to appear pursuant to s.596 of the Act. Permission was granted. 5

[5] Ms Fernando gave sworn evidence in support of her case. Ms Lethbridge gave sworn evidence in support of the Respondent’s case.

[6] As explained below, I find that the effective date of termination occurred on 2 July 2014. Consequently the application was lodged 1216 days out of time.

[7] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[8] The Applicant submits that she was dismissed because of non-existing medical conditions. Breaches of s.343, s.344 and s.351 are alleged. 6

Respondent’s Submissions

[9] The Respondent submits that the Applicant’s employment was terminated due to a genuine redundancy following a restructure of the Respondent’s finance team. 7

Legislative scheme

[10] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

[11] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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 like position.

[12] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 8where the Full Bench said (footnotes omitted):

“[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.”

[13] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[14] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters that each factor under s.366(2) must be considered when determining whether exceptional circumstances exist. 9 Further the Full Bench clarified that with respect to s.366(2)(a) the reason for the delay is simply one consideration and a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time.10

Effective date of dismissal

[15] Before I can consider whether exceptional circumstances exist, I first must determine the effective date of dismissal. A termination of employment “does not take effect unless it is communicated to the employee whose employment is being terminated.” 11 In this matter, the Applicant claims she only became aware of her dismissal in November 2017.

[16] The following matters are not in contest:

•  The Applicant received correspondence addressed to her from Ms Fidler, dated 2 May 2014, 12 wherein she was advised of the Respondent’s intention to restructure the organisation and, failing an alternate position becoming available, the Applicant’s position would be made redundant effective 16 May 2014.13

•  The Applicant received an email, dated 7 May 2014, 14 from Ms Lethbridge whereby she was advised of her options following her position being made redundant.15

•  The Applicant sent an e-mail, dated 15 June 2014, 16 expressing interest in redeployment.17

•  The Applicant received a letter from Ms Lethbridge, dated 18 June 2014, 18 whereby it was confirmed to the Applicant that the alternative position had been filled.19

•  The Applicant received and responded to an e-mail from Ms Lethbridge, dated 30 June 2014, 20 stating that the Applicant would not be returning to work unless redeployment is successful.21

•  The Applicant sent an email, dated 6 July 2014, 22 to Ms Lethbridge stating that “since redeployment is unsuccessful I have signed the deed of settlement.”23

•  The Applicant signed the execution page of the deed of settlement, dated 2 July 2014, 24 following her departure from the Respondent.25

•  The Applicant received and responded to an e-mail from Ms Lethbridge, dated 1 July 2014, 26 outlining the Respondent’s intention to provide the Applicant with the support of a career transition program.27

•  The Applicant forwarded to Ms Lethbridge a loan protection unemployment claim, 28 where she lists in her own handwriting the cause of her unemployment as “restructure within the organisation” and the date of unemployment as “2/7/2014.”29

•  The Applicant sent an e-mail, dated 9 May 2016, 30 which included a testimonial from DMC Lawyers.31

• The Applicant sent an e-mail to Ms Lethbridge and Mr Rod Morrison, dated 11 June 2016, 32 confirming her connection with professional bodies such as Toastmasters and including a reference from Toastmasters.33

•  The Applicant sent an e-mail to Ms Lethbridge, dated 27 September 2016, 34 where she advised that Audrey Page had not found her a job yet.35 The Applicant also attended three sessions with Audrey Page.36

[17] In the Applicant’s Form F8 filed with the Commission, the Applicant provides in answer to question 1.1 that her dismissal took effect during July 2014. 37

[18] At the hearing before the Commission the Applicant submitted for the first time that she filed her application on 20 November 2017 because she found out some time in November 2017 that she had been terminated. 38

[19] The Respondent submits that the termination took effect on 2 July 2014. 39

[20] On the basis of the evidence before me I am satisfied that the Respondent had communicated to the Applicant prior to 2 July 2014 that her employment would be terminated effective 2 July 2014. The Applicant’s subsequent conduct supports this finding.

[21] Consequently I find that the Applicant was aware of her dismissal from 2 July 2014 and therefore the dismissal took effect from this date.

[22] As the Applicant filed her application on 20 November 2017, the application was filed 1216 days outside the statutory time period permitted by s.366(1)(a).

[23] I now turn to consider whether there were exceptional circumstances which would satisfy me that the Commission’s discretion should be exercised to allow this application to be filed out of time.

Matters to be taken into account pursuant to s.366(2)

[24] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[25] The Applicant provides a number of reasons for the delay in filing her application, including:

•  she is from “another country” so “tend[s] to believe everything;” 40

•  she was not aware that she had been dismissed until November 2017; 41

•  she had previously been employed in a large organisation where they had friendly family policy; 42

•  due to “medical intervention, [she] was not aware that it was dismissal;” 43

•  she had been approved to take parental leave; 44 and

•  she was unaware that she needed to file her application within 21 days. 45

[26] I have considered each reason put forward by the Applicant in explaining the delay behind making her application. The reasons when considered separately and together do not point to the existence of exceptional circumstances. This factor weighs against exercising the Commission’s discretion to allow a further period for the Applicant to lodge her application.

(b) Any action taken by the person to dispute the dismissal

[27] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 46

[28] During cross examination, the Respondent’s counsel questioned the Applicant as to what steps, if any, had been taken by her to contest her dismissal. The Applicant gave the following response:

“I haven’t challenged them at all. I have been just (indistinct) and going for Audrey Page, going to the mother’s returning to work, and joining (indistinct), joining Toastmasters, and going and getting some reference letters from Sri Lanka for my 10 years’ experience, and going and meeting up with recruitment agents and getting them also on my LinkedIn so that they can see my profile and have (indistinct) 16 years, and have a professional body qualification in banking and finance, and university qualification in accounting, and banking and finance. So details I think that I did. I haven’t done anything to dispute it, no - this is the first time I’ve actually filed a case saying that this should not have been the pathway that they should have taken according to the (indistinct) legislation.” 47

[29] I find this factor weighs against exercising my discretion to allow the further period for the applicant to lodge her application.

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

[30] Prejudice to the employer will go against the granting of an extension of time.

[31] The Respondent submitted that it would be prejudiced by having to defend a claim as the delay in question means that some of the decision makers are no longer employed, 48 the memory of potential witnesses has now faded,49 and allowing the application will lead to the “usual” prejudice, including cost and time to the Respondent, in defending the action.50

[32] While I note the Respondent’s submission, I consider this factor to be a neutral consideration.

(d) Merits of the application

[33] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.” 51

[34] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 52 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.53 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[35] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd54 [2016] FWC 6963 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 on matters previously decided by the Commission.”

[36] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 55 The Respondent submitted that two other roles were also made redundant at the same time as the Applicant’s role.56 While I have considered this submission, I ultimately find this criterion neutral.

Conclusion

[37] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[38] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 57

[39] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[40] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Ms N Fernando, the Applicant;

Ms L Pallot, of Russell Kennedy Lawyers, for the Respondent.

Hearing details:

2018

19 March

16 April

Melbourne (by Telephone).

Printed by authority of the Commonwealth Government Printer

<PR602108>

 1   Transcript of Proceedings (19 March 2018), PN85-87.

 2   Form F8, [1.1].

 3   Transcript of Proceedings (19 March 2018), PN105, PN111, PN131, PN183.

 4   Ibid PN99.

 5   Ibid PN60.

 6   Form F8, [3.2].

 7   Respondent’s Outline of Submissions, [21].

 8   [2011] FWAFB 975.

 9   [2018] FWCFB 901, [18].

 10 Ibid [40].

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

 12   Attachment JL1.

 13   Ibid PN387.

 14   Attachment JL2.

 15   Transcript of Proceedings (16 April 2018), PN395.

 16   Attachment JL3.

 17   Transcript of Proceedings (16 April 2018), PN397.

 18   Attachment JL4.

 19   Transcript of Proceedings (16 April 2018), PN400.

 20   Attachment JL5.

 21   Transcript of Proceedings (16 April 2018), PN405.

 22   Attachment JL6.

 23   Transcript of Proceedings (16 April 2018), PN413.

 24   Attachment JL6.

 25   Transcript of Proceedings (16 April 2018), PN414.

 26   Attachment JL8.

 27   Transcript of Proceedings (16 April 2018), PN431.

 28   Attachment JL9.

 29   Transcript of Proceedings (16 April 2018), PN442.

 30   Attachment JL10.

 31   Transcript of Proceedings (16 April 2018), PN449.

 32   Attachment JL11.

 33   Transcript of Proceedings (16 April 2018), PN489.

 34   Attachment JL12.

 35   Transcript of Proceedings (16 April 2018), PN494.

 36   Ibid PN501.

 37   Form F8.

 38   Transcript of Proceedings (19 March 2018), PN131, PN133.

 39   Respondent’s Outline of Submissions, [9].

 40   Ibid PN225.

 41   Ibid PN105, PN111, PN131, PN183.

 42   Ibid PN222.

 43   Ibid PN183.

 44   Ibid PN101, PN135.

 45   Transcript of Proceedings (16 April 2018), PN517.

 46   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300,

 47   Transcript of Proceedings (16 April 2018), PN518.

 48   Respondent’s Outline of Submissions, [16],

 49 Ibid [17].

 50 Ibid [19].

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

 52   Haining v Deputy President Drake (1998) 87 FCR 248, 250,

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

 54   [2016] FWCFB 6963.

 55   Wilson v Woolworths [2010] FWA 2480, [24]-[29],

 56   Respondent’s Outline of Submissions, [27].

 57   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.