Rupa Kumar v Principals Australia Institute Ltd

[2015] FWC 6327

[2015] FWC 6327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rupa Kumar
v
Principals Australia Institute Ltd
(U2015/10798)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Rupa Kumar alleged that the termination of her employment by Principals Australia Institute Ltd on 30 June 2015 was unfair.

[2] Her unfair dismissal application lodged on 6 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Kumar’s employment ended on 30 June 2015. She had in mid-June decided to take leave and visit her ill father in India. Her father had been ill for a year. She left Australia on 7 July 2015 and returned on 1 August 2015. Whilst she was with her father her mother in-law became ill and she had to fly to another state in India to care for her.

[6] Ms Kumar said she did not lodge her application between 30 June 2015 and 7 July 2015 because she was in shock about not having her contract renewed and because she was preparing for her trip. Upon her return to Australia, she said she was a bundle of nerves due to her father and mother in-law’s illnesses. She said she took one to two days to get her head together and because it was the commencement of school term, she had to get her children ready for school. It was only then that it hit her that she had no job to go back to. She contacted some agencies and realised that the job market was bad. She thought the decision to take her job away from her was unfair and she was told that she could apply for unfair dismissal.

[7] Ms Kumar was on notice from 15 May 2015 that her contract may not be renewed. The Institute advertised the positions and Ms Kumar applied for the position of project support officer. While Ms Ablett, the HR and Operations Manager for the Institute, said that the position was not identical to the position previously held by Ms Kumar, it was Ms Kumar’s evidence that she applied for the position she had been doing. Ms Kumar was advised on 29 May 2015 that her job application had been unsuccessful.

[8] Ms Kumar said she was shocked at what happened. It is not unusual for employees to be shocked at the ending of their employment. Ms Kumar had seven days to lodge her application before she left Australia. Further, she did not act promptly to lodge her application on her return. Even allowing for her natural tiredness, she took another six days to lodge her application. I accept that Ms Kumar had a reasonable explanation for not lodging her application whilst she was in India. I make this finding not because she was overseas but because during this time her father was unwell and she had to deal with the sudden illness of her mother in-law. However upon her return she should have acted promptly. It appears, on her evidence, that she did not decide to lodge an application until she realised that the job market was difficult. Her explanation for this part of the delay was not reasonable.

[9] I am not satisfied that Ms Kumar has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[10] Ms Kumar was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding of exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[11] Ms Kumar did not take any action to dispute the dismissal. This weighs against a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[12] There were no submissions or evidence of any prejudice to the employer. This weighs in favour of finding there were exceptional circumstances.

(e) the merits of the application;

[13] Ms Kumar was employed on a series of fixed term contracts. Those contracts contained a termination clause which entitled either party to terminate the contract on notice for any reason. The contracts also provided that the employment automatically terminated at the end of the contract without any obligation on either party to provide notice. Further, it provided that Ms Kumar acknowledged that the employment will terminate at the end of the term and she had no expectation of ongoing employment after the term.

[14] Ms Kumar was initially employed as an administration officer. That contract expired on 31 December 2012 and she was, in October 2012, offered a new contract for the same position from 21 January 2013 to 30 June 2014. Her most recent contract was for the position of project support officer for the period 1 July 2014 to 30 June 2015. On 15 May 2015, Ms Kumar, along with other staff, was advised that they may not be offered new contracts. On 29 May 2015, Ms Kumar was sent a letter which advised her that there was uncertainty about funding and that her contract expired on 30 June 2015. It advised that notice of termination was not required because her contract automatically terminated. She was advised that her employment would cease on 30 June 2015 unless she was offered and she accepted a new contract. She was advised that if she was not offered a new contract, she would be paid out her accrued entitlements. She was also advised that the Institute may not be in a position, due to funding uncertainty, to offer a new position before 30 June 2015 and if that was the case, her employment would come to an end on 30 June 2015 and any new contract would commence at a later date.

[15] It was submitted that the merits of the case weigh strongly against a finding of exceptional circumstances because Ms Kumar was not dismissed and therefore was not protected from unfair dismissal. The evidence established that the Institute engaged employees on fixed term contracts because it relied upon external annual funding and could not offer ongoing employment because its funding was not guaranteed from year to year. For example, Ms Ablett said that funding had not been made available until 24 August 2015 and as a consequence some applicants were offered conditional contracts or required to take leave without pay or other forms of leave until the funding came through. The use of fixed term contracts in these circumstances may be legitimate.

[16] By contrast while not challenging the legitimacy of the use of fixed term contracts, Ms Kumar said that in the past contracts had been automatically rolled over. I note that in the past the new contracts were offered in advance of the termination date and the last contract offered to Ms Kumar was for a different position.

[17] Ms Kumar submitted that the decision to not offer her a new contract was unfair because there had been no complaints about her performance.

[18] In assessing the merits of Ms Kumar’s claim I make no assessment about the fairness or otherwise of what occurred. Ms Kumar did not dispute that she was employed on a contract that ended on 30 June 2015.
[19] There was a discussion at the hearing between myself and Ms Kumar about whether she was precluded from bringing an unfair dismissal claim because she was employed on a fixed term contract and it had come to an end. Ms Kumar’s contract had a starting date and a finishing date, but it provided that it could be terminated by notice. 2 I find therefore that Ms Kumar had an arguable case that she was not employed for a specified time.3

[20] However to be able to make an unfair dismissal claim Ms Kumar must establish that she had been dismissed. A person is only dismissed if his or her employment is terminated on the employer’s initiative. The Explanatory Memorandum states as follows:

“1532. Paragraph 362(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.” 4

[21] On the current state of the evidence, Ms Kumar’s employment ended on 30 June 2015 because her employment contract had expired. There was no basis on which I could conclude that the contracts were used to avoid the Institute’s obligations under the Fair Work Act 2009. 5 Ms Kumar’s employment was not terminated on the employer’s initiative. As such, Ms Kumar was not protected from unfair dismissal.

[22] I find that the merits of the case weigh against a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[23] No submissions were made on this criterion. It is a neutral consideration.

Conclusion

[24] I am not satisfied that there are exceptional circumstances warranting an extension of time. The only criterion in favour of a finding of exceptional circumstances is the lack of prejudice to the employer. By itself, this is not enough to find that there are exceptional circumstances and therefore Ms Kumar’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

R. Kumar on her own behalf.

S. Ablett for the Respondent.

Hearing details:

2015.

Melbourne and Perth (telephone link):

September 10.

 1   [2011] FWAFB 975.

 2   Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 126.

 3   S.386(2)(a).

 4   Explanatory Memorandum, Fair Work Bill 2008 (Cth).

 5   S.386(3).

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571831>