Patsy Day v B4Kids Pty Ltd
[2012] FWA 7475
•2 OCTOBER 2012
[2012] FWA 7475 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Patsy Day
v
B4Kids Pty Ltd
(U2012/1088)
COMMISSIONER ROBERTS | SYDNEY, 2 OCTOBER 2012 |
Application for unfair dismissal remedy - extension of time.
[1] This decision concerns an application lodged by Ms Day for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of her employment by B4Kids Pty Ltd (the Company or the Respondent).
[2] Ms Day’s application was filed on 11 May 2012. The application states that the termination of employment took effect on 10 February 2012. If that were the case, her application would have been filed some 77 days outside the 14 day time limit prescribed by the Act. The Company objected to the granting of an extension of time and the matter was listed before me in Brisbane on 21 August 2012. Directions were issued on 12 July 2012 for the filing of submissions, witness statements and other documentary materials. Both parties complied with the directions.
[3] At the hearing on 21 August 2012, Ms Day represented herself. The Company was represented, by permission, by Mr S Clayer, solicitor. Ms Day and Mr H Lundberg gave sworn evidence for the Applicant. Mr B Forbes (a Director of the Company) and Ms N Spillman (a Company employee) gave sworn evidence for the Respondent.
[4] The Company also initially adopted 10 February 2012 as the date of termination of employment based on events at a meeting with Ms Day on 12 December 2011. The citing of that date by Ms Day apparently arose from two Centrelink Employment Separation Certificates issued by the Company dated 22 March 2012 and 27 April 2012. Both certificates give the date when employment ceased as 10 February 2012. Ms Day said that the first of the two certificates was received by her as an attachment to an email from the Company on 5 April 2012 and the second of the two certificates was received by her on 27 April 2012. The second Certificate was apparently issued by the Company after Ms Day complained that the first Certificate was deficient.
[5] In proceedings, it became clear that Ms Day was arguing that the effective date of dismissal was 27 April 2012 as that is the date on the second separation certificate. The Company ultimately opted for 5 April 2012 as the date of dismissal 1.
[6] On balance, I have decided and find that the most likely date on which Ms Day was first informed in writing that her employment had been terminated was 5 April 2012. Ms Day is, in my view, wrong in her belief that the termination of employment occurred when the second separation certificate was issued on 27 April 2012. In reality, there is very little difference in the content of the two certificates.
[7] Having found that the date of termination of employment was 5 April 2012 it follows that Ms Day’s application for relief, filed on 11 May 2012, was some 22 days out of time.
Evidence
Ms Day
[8] Ms Day gave sworn evidence and submitted a witness statement 2. Ms Day’s statement deals extensively with her duties when employed by the Company. I will not repeat that material but have paid regard to it. The witness statement does not address the issue of a possible extension of time. However, Ms Day addressed this issue in submissions and this will be dealt with later in my decision.
[9] In cross-examination, Ms Day:
- Was asked: “One of the reasons your application was late, you claim, was because Centrelink had told you that your separation certificate issued on 5 April 2012 was not valid, is that correct?” and replied: “That's correct. I was also given that information by Fair Work Australia.” 3
- Was asked: “What did Fair Work Australia tell you?” and replied: “They told me that I would need seek a complete document.” 4
- Said that ‘complete document’ meant that the box on the separation certificate concerning the reason for dismissal was not correctly completed on the 5 April 2012 version.
- Said: “it wasn't until 27 April that I received a second separation certificate and on that second certificate the reason had actually been changed from ‘Other’ to ‘Unsatisfactory work performances’. 5
- Said that she first found out that she was no longer employed by the Company on 6 March 2012 during a conversation with her WorkCover case manager. 6
- Said that after 6 March 2012, she contacted the Company to say “I would be needing either a letter of dismissal or a separation certificate stating the date effective and the reason for my dismissal.” 7
- Said that on 15 March 2012 she was advised by Fair Work Australia to lodge a complaint with the Fair Work Ombudsman. She then received the separation certificate of 5 April 2012.
- Said that she never received a letter of dismissal. 8
Mr Lundberg
[10] Mr Lundberg gave sworn evidence and submitted a witness statement. 9 His witness statement set out his observations of the various types of work performed by Ms Day whilst in the employ of the Company.
[11] Mr Lundberg did not give supporting oral evidence and was not cross-examined.
[12] I do not find anything in the evidence of Mr Lundberg which is relevant to my consideration in this matter.
Mr Forbes
[13] Mr Forbes gave sworn evidence and submitted a witness statement. Mr Forbes’ witness statement dealt with a meeting held with Ms Day on 12 December 2011 and said:
“There was absolutely no grey area in what was said to Ms Day about her being terminated. It was made very clear to Ms Day, twice in our meeting on 12/12/11 that we wanted her to start looking for another job immediately however we were prepared to keep her employed until the end of January, but mid-February at the latest. We only did this because we didn’t want to see her without work over Christmas and we knew that her husband had still not found any work other than what he was doing for B4kids.”
[14] I note here that I considered Mr Forbes’ evidence as to the date of the termination as part of my determination of that date (see paragraph 6 above).
[15] In cross-examination, Mr Forbes was questioned about meetings with Ms Day and her work performance.
[16] The evidence of Mr Forbes was of limited usefulness in my decision making except as to the background of this matter concerning the meeting on 12 December 2012.
Ms Spillman
[17] Ms Spillman gave sworn evidence and submitted a witness statement. 10 Ms Spillman’s witness statement dealt with a claim by Ms Day in January 2012 in relation to an alleged workplace injury. Ms Spillman stated that she did not believe that such an injury had occurred.
[18] Ms Spillman‘s supporting oral evidence also dealt with the alleged workplace injury.
[19] In cross-examination, Ms Spillman was questioned by Ms Day in relation to the alleged injury.
[20] The evidence of Ms Spillman concerning the alleged workplace injury to Ms Day has not been useful in my decision making.
Submissions
[21] Both Ms Day and the Company filed written submissions. 11 In my summaries of the submissions below, I do not deal further with the issue of date of the termination of employment as I have determined it above. In making that determination, I paid regard to the relevant sections of the written submissions.
[22] In relation to the extension of time issue, Ms Day submits that the effective date when she was notified of the termination of her employment was 27 April 2012 when she “finally received a completed and valid Certificate of Separation.” She was prevented from lodging her application for relief earlier as she was awaiting that certificate. Ms Day goes on to argue that as her application was filed with the Tribunal on 11 May 2012 and was within the 14 day period required in the Act.
[23] Ms Day goes on to say that she sought to dispute the dismissal but was denied access to the relevant persons in the Company. Ms Day provided the following summary of what she submits are the relevant issues before me:
“1. The Applicant states that her physical and emotional injury increased her stress levels to a stage where she was very confused as to what to do and that her condition was a result of the unfair treatment during her employment and the events surrounding the dismissal.
2. The Respondent Management did not assist in alleviating the issues associated with the working environment thereby exasperating the effects of the conditions suffered by the Applicant.
3. That Respondent failed in their duty of care to the Applicant by not protecting her from risks within the workplace that resulted in medical issues and continuing to leave her in a role that created a further risk to her health, safety and emotional wellbeing.
4. That the Applicant was unfairly terminated after it was known by Respondent that the applicant had made a claim under Work Cover for injuries sustained as a result of her workload.”
[24] Both parties also made brief oral submissions and I have paid regard to those submissions together with citation of case law.
Legislative Framework
[25] Subsections 394(2) and (3) of the Act provide:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(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.”
Explanation of the delay
[26] Ms Day appears to rely entirely on the Separation Certificate issued on 5 April 2012 not constituting a valid advice of dismissal which was not rectified until a second Separation Certificate was issued on 27 April 2012. Earlier in this decision I have dealt with determining the date of termination. That date was 5 April 2012. There is no reason for me to doubt the sincerity of Ms Day but the delay in filing her application for relief until 11 May 2012 is another matter altogether. Whether Ms Day’s sincere belief about the Separation Certificates constitutes an ‘exceptional circumstance’ is dealt with below.
When the Applicant first became aware of the dismissal
[27] In the case before me, this is a vexed question. It does not appear to be in dispute between the parties that a meeting between the company and Ms Day was held on 12 December 2011 and that at this meeting, Ms Day was informed that her employment would end at some future date. It became apparent during proceedings that the Company intended that date to be in mid-February 2012 but never got around to officially informing Ms Day. However, it is apparent from the interactions between Ms Day and the Company, Ms Day and the Fair Work Ombudsman and Ms Day and Fair Work Australia that Ms Day believed her employment had ended but was seeking formal confirmation of that situation. I have determined that the first formal confirmation to Ms Day was on 5 April 2012. That does not mean that Ms Day was not informally aware that the employment relationship had ended as early as mid-March.
Action taken by the Applicant to dispute the dismissal
[28] Ms Day’s actions after mid-March 2012 were directed towards the provision to her of a formal notice of dismissal. According to Ms Day, she also attempted to contact the Company to dispute her dismissal but was unsuccessful in reaching the person she wished to speak to. All in all, I find that Ms Day took limited action to dispute the termination of her employment.
Prejudice to the Respondent
[29] The Respondent is, in my view, largely responsible for being placed in a position of defending this extension of time application by Ms Day. It was the actions of the Company which created the doubt as to when the employment relationship ended and in fact, the Company never gave formal notice to Ms Day. I find that there would be some prejudice to the Company if an extension of time were granted but that that prejudice would not be such as to militate against such an extension.
Merits of the application
[30] The merits of the application are fiercely contested between the parties. I am unable, on the material before me, to determine that Ms Day’s application is without merit and merit has been neutral in my consideration.
Fairness between the Applicant and other persons in a similar position
[31] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.
Conclusion
[32] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances …”
[33] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 12. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’13. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services14where the Commissioner said:
“Branson J in a decision of the Full Court of the Federal Court 15 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:
Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. 16”
[34] The Concise Oxford Dictionary 17 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.18
[35] In these proceedings, I am unable to discern anything which would constitute an ‘exceptional circumstance’ such as to make it just and equitable to extend time. Accordingly, I decline to extend time for the lodging of Ms Day’s application and her application is dismissed. It follows that her substantive application for relief must also be dismissed.
[36] An order reflecting this Decision is in PR528555.
COMMISSIONER
Appearances:
P Day, the Applicant.
S Clayer for B4Kids Pty Ltd.
Hearing details:
2012.
Brisbane:
21 August.
1 See Transcript PNs573-574.
2 Exhibit Day 1.
3 Transcript PN104.
4 Transcript PN105.
5 Transcript PN106.
6 Transcript PN109.
7 Transcript PN111.
8 Transcript PN121.
9 Exhibit Day 2.
10 Exhibit B4Kids 2.
11 Exhibits Day 3 and B4Kids 3.
12 [2010] FWA 1394.
13 Ibid, at paragraph 28.
14 [2009] FWA 1638.
15 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.
16 Maan v Minister for Immigration and Citizenship (2009) FACFC 180.
17 Oxford University Press, Oxford, 1982.
18 Transcript PNs111-112.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR528554>
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