Robert Phillips v Sydney Anglican Schools Corporation Suzanne Phillips v Sydney Anglican Schools Corporation
[2010] FWA 8472
•3 NOVEMBER, 2010
[2010] FWA 8472 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Phillips
v
Sydney Anglican Schools Corporation
Suzanne Phillips
v
Sydney Anglican Schools Corporation
(U2010/1071 and U2010/1072)
COMMISSIONER CONNOR | WOLLONGONG, 3 NOVEMBER, 2010 |
Applications for alleged unfair dismissal - out-of-time application - question of genuine redundancy
Background
[1] There are two separate applications under s.394 of the federal Fair Work Act, 2009 (‘the Act’) before me for arbitration involving Mr Robert Phillips and his wife, Suzanne, former employees of Sydney Anglican Schools Corporation. Whilst the representatives of the parties - Mr Ellicott representing the two applicants and Ms Lovell representing the respondent employer - requested separate hearings for the matters, and I complied with that request, setting down the application for Mrs Phillips on Monday, 1 November, 2010 and the application for Mr Phillips on Tuesday, 2 November, 2010, it is nevertheless convenient for me to deal with both matters with the one published decision. The proceedings were conducted in the premises at 90 Crown Street, Wollongong which Fair Work Australia now shares with the Industrial Commission of New South Wales.
[2] In fact, both parties requested that a further attempt at conciliation before me should occur and I agreed to that request. The hearing on Monday, 1 November, 2010 was therefore converted into a further conference and both s.394 applications on behalf of Mr Phillips and his wife have been settled. Nevertheless, the settlement was made on the basis of certain conclusions I had reached concerning the matters and I believe that it is appropriate to record those conclusions in this decision.
[3] There were threshold issues to consider before the merits of the two s.394 applications may be considered by me. Under s.396 certain matters are required to be heard as threshold issues before any consideration of the merits of the claim, viz:
“FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[4] Firstly, Mr Phillips was employed as business manager by the respondent employer which operates two schools in the Shoalhaven region-the Nowra Anglican College and the Shoalhaven Anglican School. Mr Phillips was initially employed as business manager at the Shoalhaven School but, because of financial difficulties, that position was abolished and he accepted a position of accounts clerk at the Nowra College, commencing work there, on a temporary basis according to the corporation, on Wednesday, 21 April, 2010. There was a further restructuring at the Nowra College and Mr Phillips was unsuccessful in obtaining work in the restructured accounts clerk position. On Saturday, 3 July, 2010 Mr Phillips expressed an interest in the position of campus access, a grounds keeping position, but he was unsuccessful. He was retrenched at that time, receiving a sum as a severance payment.
[5] On Thursday, 8 July, 2010 Mr Phillips lodged his s.394 application. Conciliation by teleconference on Thursday, 22 July, 2010 was unsuccessful and the file was allocated to me for hearing. I set the matter down for mention and programming on Tuesday, 24 August, 2010 and ultimately a hearing on Tuesday, 2 November, 2010. The corporation had challenged the jurisdiction of Mr Phillips’ application, arguing that the termination of Mr Phillips was a genuine redundancy and, as such, beyond jurisdiction by virtue of s.396(d).
[6] Secondly, Mrs Phillips was employed as registrar and personal assistant to the headmaster of the respondent employer at the Nowra Anglican College. At a meeting of administrative staff at both the Nowra College and the Shoalhaven School on Wednesday, 19 May, 2010 expressions of interest for voluntary redundancy were invited and the staff were given until Thursday, 27 May, 2010 for them to consider their position in that respect.
[7] On Friday, 28 May, 2010 Mrs Phillips wrote to the school, viz:
“....It is with great sadness and a heavy heart that I write to you to-day requesting a full redundancy. I feel the gamble of applying for a position in the corporation without being able to see the job description or selection criteria beforehand is too great a risk. The process has not been transparent or fair.
As teaching staff have done in the past, I would like to apply for a casual position at the school. I have attached my resume outlining my work experience and qualifications which are sufficient to meet the requirements of all non-teaching positions in the school up to and including the business managers role. I look forward to your reply...”
[8] The corporation now argues that, in fact, with her letter of Friday, 28 May, 2010 Mrs Phillips had resigned from her employment, accepting redundancy. Mrs Phillips has nevertheless lodged her s.394 application on Thursday, 8 July, 2010,claiming that, whilst she was notified that her services were to be terminated on Friday, 4 June, 2010, her dismissal did not actually take effect until Friday, 25 June, 2010 when the retrenchment was actually completed and she received severance payments.
[9] Conciliation by teleconference was scheduled for Friday, 6 August, 2010 but the corporation indicated that it did not wish to participate in conciliation. Indeed, it argues that Mrs Phillips’ claim was beyond jurisdiction, essentially on three grounds:
- That Mrs Phillips has lodged her application outside the 14 day time limit imposed by s.394(2). The corporation does not accept the argument that the effective date of the termination of Mrs Philips’ employment was Friday, 25 June, 2010 but claims that the “resignation” of Mrs Phillips actually occurred on Friday, 28 May, 2010 with her letter seeking redundancy pay (which she has received);
- That Mrs Phillips actually resigned; and
- That even if she had not resigned, her application would be beyond jurisdiction under s.396(d) as a genuine redundancy.
[10] In other words, the question of whether or not Mrs Phillip’s claim was out-of-time is a threshold issue [s.396(a)] and, alternatively, whether it would otherwise have been a genuine redundancy [s.396(d)] is also a threshold issue. There is also the question of whether or not the termination of Mrs Phillips’ services was a resignation (in which case it would be beyond jurisdiction) or a dismissal or constructive dismissal (in which case it would be within jurisdiction).
Was Mrs Phillips’ Application Lodged Out-of-Time?
[11] As I indicated earlier in this decision, in terms of s.394(2) applications for unfair dismissal must be lodged within 14 days but by virtue of s.394(3), members of FWA hold a discretion to admit out-of-time applications if they are satisfied that there are exceptional circumstances for doing so, having particular regard to a number of specific matters: (i) the reason for the delay, (ii) whether the dismissed employee only became aware of the dismissal after it was effected, (iii) any action taken by the person to dispute the dismissal, (iv) any prejudice to the employer, (v) the merits of the application and (vi) fairness as between the person dismissed and other persons in a similar position. All relevant considerations should be taken into account in determining whether to grant an application out of time to proceed [Brady v. Kennedy, trading as ‘Sardines’ (1999) 91 IR 258].
[12] The authority which has formed the basis of consideration of out-of-claim unfair dismissal claims in the Federal industrial jurisdiction in the past was the authoritative decision of Marshall J in Brodie-Hanns v. MTV Publishing Company (1995) 67 IR 298 at pp.299 and 300 [see also Da Roza v. Maersk Australia Pty Limited (2010) 193 IR 275]. But as I have emphasised in the previous paragraph, the FW Act uses a different and, in my opinion, a more onerous test than had hitherto applied “...exceptional circumstances...” and applications made out-of-time should now be considered in that context. In his decision of Thursday, 25 February, 2010, in Johnson v. Joy Manufacturing Company Pty Limited, trading as Joy Mining Machinery[2010] FWA 1394 Lawler VP highlighted that distinction, commenting (in paras 22 and 24) that s.394(3):
“...represents a significant departure from the previous position under the Workplace Relations Act, 1996 (WR Act). The discretion to extend time for an unfair dismissal application under the WR Act was found in s.643(14)... Marshall J (in Brodie Hanns v. MTV Publishing Company) held that ‘...special circumstances are not required...’ By including a requirement in s.394(3) that there be ‘...exceptional circumstances...’, the legislature must be taken to have intended a significant narrowing of the discretion to extend time...”
[13] Recent decisions of FWA have illustrated clearly that it will ordinarily adopt a considerably more restrictive approach to questions concerning applications for an extension of time than might hitherto have been the position. See, for instance, the decision of the Full Bench (Acton and Cartwright SDPP and Thatcher C) on Friday, 17 September, 2010 in Cheval Properties Pty Limited v. Smithers[2010] FWAFB 7241.
[14] But the argument by Ms Lovell is based on the assumption that Mrs Phillips’ letter of Friday, 28 May, 2010 was the basis for the termination of her services. I do not believe that it was. With that letter Mrs Phillips indicated that she was prepared to accept, albeit reluctantly, her retrenchment and her offer in that respect was ultimately accepted and was put into effect on Friday, 25 June, 2010. I consider that Friday, 25 June, 2010 was the actual date of the termination of her services and, consequently, her s.394 application is not out-of-time.
Was the Termination of Mrs Phillips’ Services a Resignation?
[15] It is clear from Mrs Phillips’ letter of Friday, 28 May, 2010 that she was not anxious to bring her employment at the college to an end. To that extent, if her actions were to be regarded as a resignation on her part, it has all the hallmarks of a constructive dismissal [Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200. As Macken J of the former New South Wales Industrial Commission indicated in the Michaelis Bayley Trading Company Case (1979) AR(NSW) 392 at p.393):
“…Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by such a threat. Where a contract is terminated otherwise, it amounts to constructive dismissal…”
[16] And in Allison v. Bega Valley Council (1995) 63 IR 68 the Full Bench of the State Industrial Relations Commission (Peterson and Marks JJ and Connor CC) described the issue (at pp.72 and 73) in the following terms:
“...Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so, despite on the face of it, their employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue…
Where an employee initiates the termination of the contract of employment, it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire of the employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed…”
Was the Termination of the Services of Phillips and his wife a Genuine Redundancy?
[17] But ultimately I do not believe that it appropriate to regard what occurred to Mrs Phillips as either a resignation on her part or a constructive dismissal. Both she and her husband were clearly retrenched from employment. Formerly, a genuine redundancy may have nevertheless given rise to a claim of unfair dismissal - see, for instance, Outboard World Pty Limited v. Muir (1993) 51 IR 167 at p.182. But any business facing financial difficulties which, of necessity, is required to retrench staff, would in the past have been unlikely to attract attention for an unfair dismissal claim, especially if appropriate severance payments have been made. And the current position is that such situations are, by virtue of s.396(d), now excluded from jurisdiction under s.394.
[18] In terms of s.389:
“(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[19] It is clear to me that the positions of both Mr Phillips and his wife have been abolished and subsumed into other positions in the restructuring which has taken place in the two schools. In R v. Industrial Commission of South Australia; ex parte Adelaide Milk Co-operative Limited (1977) 44 SAIR 1202 Bray CJ defined redundancy (at p.1205) as follows:
“....A job becomes redundant when an employer no longer desires to have it performed by anyone...”
[20] But Ryan J in Jones v. Department of Energy and Minerals (1995) 60 IR 304 commented (at p.308) that:
“...it is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions...”
[21] And I also note particularly the more recent comments made by Hamberger SDP in his decision of Friday, 19 February, 2010 in Kekeris v. A Hartrodt Australia Pty Limited[2010] FWA 674 at para 27, viz:
“....When one looks at the specific duties performed by the applicant prior to her termination, they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive... It can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists...”
[22] On the basis of what I have been informed in these proceedings, that appears to me to be the position with Mr Phillips and his wife. It is not argued that, because of financial difficulties at the two schools, the administrative positions formerly occupied by Mr Phillips and his wife have been abolished in the restructuring which has taken place. It therefore appears to me that what has occurred in a genuine redundancy, for which both Mr Phillips and his wife received severance payments. There was a decrease in the work generally available in the two schools, necessitating the abolition of the substantive positions occupied by Mr Phillips and his wife - see also the decision of Drake SDP on Tuesday, 14 September, 2010 in Wheatley v. A Carter and Sons Pty Limited[2010] FWA 7129.
Conclusion
[23] In those circumstances, the matter proceeded into further conciliation and has been settled on terms which are to be committed to a deed of release, a copy of which, duly signed by the parties, will be provided in due course to me to place on the file. The matter is concluded on that basis.
COMMISSIONER
Appearances:
Tom Ellicott, Access Law Group, for the applicants
Cathy Lovell, Association of Independent Schools of New South Wales for respondent
Hearing details:
2010
WOLLONGONG
November, 1 and 2
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