Nirmala LazarvDepartment of Education and Training

[2020] FWC 1618

[2020] FWC 1618

FAIR WORK COMMISSION

WRITTEN REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nirmala Lazar
v
Department of Education and Training
(U2019/13948)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 6 APRIL 2020

Application for an unfair dismissal remedy - extension of time - multiple applications.

[1] On 11 December 2019 Ms Nirmala Lazar (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is the Department of Education and Training (Respondent) (DET).

[2] DET objects to the application on jurisdictional grounds. The first of those grounds is that Ms Lazar’s application was not lodged within 21 days after the dismissal took effect, as required by s.394(2)(a) of the Act. Secondly, DET submits the Commission does not have jurisdiction to hear the merits of Ms Lazar’s unfair dismissal application because she had already made an application under another law and that earlier application has been dealt with (s.725 and s.732 of the Act).

[3] Ms Lazar filed a substantial amount of materials that largely went to the merits of her application. A mention/directions hearing was held on 24 March 2020 during which neither party objected to the extension of time jurisdiction objection being heard and determined prior to the hearing of the multiple applications objection. Ms Lazar was provided with an opportunity to file further materials addressing the jurisdiction objections raised by DET. Ms Lazar filed a further submission in support of her application on 25 March 2020. DET filed submissions in reply on 26 March 2020.

[4] It is common ground that Ms Lazar commenced her employment at Somerville Secondary College as a secondary teacher with the Respondent on 28 January 2019. Ms Lazar was notified of her dismissal on 13 August 2019 and the dismissal took effect that same day. Ms Lazar has therefore lodged her application 99 days out of time.

[5] On 26 August Ms Lazar lodged a grievance application with the Merit Protection Board (MPB) in relation to her dismissal. That matter was heard and determined, and a decision was handed down on 2 December 2019. DET submits that Ms Lazar’s application to the MPB meets the elements of s.732 of the Act because the MPB application was an application made under a State law. They submit Ms Lazar’s application was made pursuant to section 2.4.44(2)(d) of the Education and Training Reform Act 2006 (Vic) which provides that one of the functions of the MPB is to hear grievances and appeals in relation to decisions prescribed by the regulations or Ministerial Order (Part 2.4, division 7-Appeals, Education and Training Reform Act 2006(Vic). They submit Clause 9.6.6 of Ministerial Order 1038 provides that a person may lodge a grievance with the MPB in relation to a decision to annul his or her employment. DET further submit Ms Lazar lodged such an application and that application was not withdrawn nor did it fail for want of jurisdiction. They submit the statutory purpose of the prohibition is to limit Ms Lazar to a single remedy in relation to her dismissal. There is no dispute that the MPB application was made first and that application was in relation to the dismissal. 1

[6] The jurisdictional objections to Ms Lazar’s unfair dismissal application were heard and determined by this Commission on 27 March 2020. DET was represented by Ms Krystna Grinberg of Counsel. Ms Lazar appeared and gave evidence on her own behalf.

[7] At the conclusion of the hearing, following a brief adjournment, I informed the parties that after considering the witness evidence and materials filed in this matter I was not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act, and accordingly, Ms Lazar’s application for an unfair dismissal remedy was dismissed. I informed the parties that I would provide my reasons for the decision in writing.

Legislation

[8] 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).

[9] 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.’ The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then the Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3

[10] Section 394(3) requires the Commission to take into account the following:

“(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.”

Reason for the delay

[11] Ms Lazar was notified of her termination of employment on 13 August 2019 and was provided with a termination letter (annulment letter) that same day. 4 Ms Lazar’s evidence is that the annulment letter from the DET mentioned that she could seek a review of the decision to terminate her employment by making an application to the Merit Protection Board (MPB) within 14 days.

[12] Ms Lazar submits that one of the reasons she was late in filing her application was because the MPB and the Australian Education Union (AEU) failed to direct her to the Commission even though they were aware she had alleged unfavourable treatment by DET in having her probationary position annulled which had the effect of terminating her employment. 5

[13] In Ms Lazar’s outline of argument she submits that after seeking advice from the AEU she lodged a grievance application with the MPB on 26 August 2019 disputing her dismissal. Ms Lazar’s application was heard on 22 November 2019 and the MPB handed down its decision on 2 December 2019 confirming the decision to annul Ms Lazar’s probationary appointment, having the effect of bringing her employment to an end. 6

[14] After her application with the MPB was dismissed Ms Lazar sought further advice from the AEU. 7 Ms Lazar’s evidence was that the AEU advised her that any application for unfair dismissal remedy to the Fair Work Commission would be made out of time. It took a further nine days for Ms Lazar to lodge her application with the Commission once she was notified by the MPB that her application was unsuccessful.

[15] Ms Lazar submits that neither the AEU or the MPB advised her prior to her appeal application being heard by the MPB to approach the Commission, nor had she discussed with the AEU any consequence to the future of her employment should her application with the MPB fail. Ms Lazar further submits that she was not provided with “a choice to make an application” to the Commission because the annulment letter did not provide any details to that effect. She submits after her appeal application was dismissed by the MPB she was advised by the AEU that they would have no further involvement with the matter.

[16] Ms Lazar’s evidence is that after she was dismissed she had applied to an agency recruiting casual relief teachers and temporary teachers for both private and government schools. She also sought advice from her legal representative however it was not until her application with the MPB had been rejected that she sought information through the Commission website about making an unfair dismissal application. At the hearing Ms Lazar gave evidence that she discussed making an application with the AEU and was advised that they would not represent her and that if she was to make an application for an unfair dismissal remedy it would be made out of time.

[17] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 8the Full Bench noted that the absence of any explanation for any part of the delay will usually weigh against the applicant in 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.

[18] Ms Lazar has not submitted that there has been representative error by the AEU but rather that they did not inform her that she could make an application to the Commission to dispute her dismissal. Ms Lazar did not call any evidence from the AEU to support her submission. However, should I accept Ms Lazar’s submission the absence of such advice from the AEU is not in itself an exceptional circumstance. Further, I do not consider it to be the responsibility of the MPB to advise Ms Lazar as to what other avenues may have been available for her to dispute her dismissal. There was nothing prohibiting Ms Lazar from informing herself as to what other avenues were available to her to dispute her dismissal.

[19] Ms Lazar’s reasons for the delay in the filing of her application are not exceptional circumstances nor has she made out a credible explanation for the entirety of the delay. It was at all times open to Ms Lazar to make an application to the Commission and being unaware of the statutory time limit for making an application is not in itself an exceptional circumstance.

[20] I do not consider that Ms Lazar has made out an acceptable or reasonable explanation or combination of explanations for the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances warranting an extension of the 21 day period.

Whether Ms Lazar became aware of the dismissal after it had taken effect

[21] The consideration in s.394(3)(b) is ‘whether the person first became aware of the dismissal after it had taken effect’. It is not in contention that Ms Lazar ‘first became aware’ of the dismissal on the same day that it took effect. She had the full period of 21 days to lodge her application. This consideration does not weigh in favour of an extension of time.

Any action taken by Ms Lazar to dispute the dismissal

[22] DET submit that on 9 August 2019 the Acting Principal sent a letter notifying Ms Lazar of the proposal to annul her employment and invited her to respond. DET submits that Ms Lazar did not take any action to dispute her dismissal and that she instead provided an email response stating that she respected the decision to annul her employment and that it would give her an opportunity to reflect and improve on her standards.

[23] There is no contention that Ms Lazar sent the email in which she states that she accepts the decision of the Acting Principal. Her evidence was that she wrote the email because she hadn’t expected the letter, was shocked and has been taught to respect the decision of her elders.

[24] Once Ms Lazar was formally notified of the decision to annul her employment she contested her dismissal with the Merit Protection board which largely involved disputing the alleged underperformance issues. Whilst there may be some contention as to whether she disputed the dismissal in a legal sense for the purposes of s.394(3)(b) by contesting the decision to annul her probation and the schools characterisation of events, she was in effect disputing its reasons for dismissing her. This weighs moderately in favour of an extension of time.

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

[25] DET submit it has already dedicated time and resources to defending Ms Lazar’s application to the MPB. The parties have both prepared lengthy submissions and witness statements and filed voluminous materials. The MPB application was also the subject of a full days hearing. DET submit that defending the application further would impose a burden on Somerville Secondary College (College) staff who would be required to respond to the allegations made by Ms Lazar. They further submit staff planning for 2020 had already taken place and the delay would further prejudice the College.

[26] Whilst I understand the inconvenience of having to defend an unfair dismissal application this is not an uncommon occurrence. However, whilst I cannot identify any prejudice that would occur to DET if an extension of time were to be granted, I do not consider in the present case that the mere absence of prejudice to be a factor that would point in favour of granting an extension of time.

The merits of the application

[27] DET submit that Ms Lazar was dismissed for a valid reason being her ongoing unsatisfactory performance which included, inter alia, her failure to plan for effective teaching, failure to follow the schools agreed instructional model in her planning and teaching practices, failure to provide VCE chemistry and mathematics students with planning and assessment documents in a timely manner and ongoing concerns about Ms Lazar’s classroom management.

[28] DET submit the performance concerns were set out in a detailed manner and were explained verbally during meetings. They submit Ms Lazar was further supported to try to improve her performance.

[29] DET submit that Ms Lazar’s dispute (as to the fairness of the dismissal) was considered by the MPB on 22 November 2019; the MPB confirmed the decision to dismiss Ms Lazar. In its decision the MPB was satisfied inter alia that Ms Lazar was provided with information and induction regarding the probation requirements, ongoing support and feedback throughout her probationary period, written communication detailing how she had failed to meet the standard requirements and adequate opportunity to meet with staff to seek further support and provide input into the process.

[30] Ms Lazar made substantial submissions as to the merits of the application. She submits that in her job application to Somerville Secondary College she stated that she was eligible to teach Mathematics (Years 7-10), Biology (Years 7-12) and Chemistry (Years 7-12). She submits that despite this she was asked to teach VCE Further Mathematics for Year 12 classes. Ms Lazar says she was told she would be supported and disputes the DET assertion that she was provided with adequate support.

[31] Ms Lazar submits she was not provided with a reasonable amount of time or support to address the performance concerns raised with her, there were deficiencies in the expectations during the support process and the manner in which the observation during that process was conducted. She submits the action taken by the Acting Principal was unfair.

[32] In her evidence Ms Lazar gave examples of when she says adequate support was not provided, those examples included not being provided with the appropriate training in the use of a CAS calculator which was required to teach VCE Further Mathematics, denied access to First Aid and CPR training, and she was not provided with the opportunity to upskill or attend professional development sessions. 9

[33] Considering the merits of the application the factual contests in this matter can only be resolved through a proper consideration of witness evidence. The merits would depend on the factual findings that the Commission would need to make, if an extension of time were granted and the matter proceeded. If the Department’s version of events is correct, Ms Lazar’s unfair dismissal application would have little prospect of success. If Ms Lazar’s account were to be accepted, I am not of the view her claim would have merit. However, I am mindful that the material has not been fully explored or tested, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[34] DET submit that permitting this application to proceed, out of time, in circumstances when the grievance has already been heard by the MPB would cause unfairness to other employees of the Respondent who are in a similar position and make a choice to pursue their claim in either the MPB or the Fair Work Commission.

[35] I consider fairness as between Ms Lazar and other persons in a similar position to be a neutral factor.

Conclusion

[36] After considering the witness evidence and materials filed in this matter, I have concluded that I am not satisfied that there were exceptional circumstances warranting an extension of time for Ms Lazar’s application to be made under s.394 of the Act.

[37] Having made my decision regarding the extension of time application I was not required to consider the second jurisdiction objection being that Ms Lazar had filed multiple applications.

[38] Accordingly, the application is dismissed. An order 10 to that effect will accompany this decision.

COMMISSIONER

Appearances:

N Lazar on her own behalf.
K Grinberg of Counsel for the Respondent.

Hearing details:

2020.
Melbourne (by Telephone):
March 27.

Printed by authority of the Commonwealth Government Printer

<PR717807>

 1   Respondents Submissions, Exhibit R2

 2   [2011] FWAFB 975

 3   Ibid

 4   Applicants Submissions, Exhibit A2

 5   Applicants Submissions, Exhibit A1 & A2

 6   Ibid

 7   Applicants Submissions, Exhibit A2

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [39]

 9   Applicants Submissions, Exhibit A2

 10   PR717828