Sabian Carey v SDA Schools (North NSW) Ltd T/A Tweed Valley Adventist College

[2018] FWC 352

[2018] FWC 352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sabian Carey
v
SDA Schools (North NSW) Ltd T/A Tweed Valley Adventist College
(U2017/12008)

COMMISSIONER RIORDAN BRISBANE, 18 JANUARY 2018

Application for an unfair dismissal remedy

[1] Mr Sabian Carey (the Applicant) commenced employment as an IT specialist with SDA Schools (North NSW) Ltd t/a Tweed Valley Adventist College (the Respondent) on 17 March 2014. On 3 July 2017 the Applicant’s employment was terminated as a result of his position being made redundant.

[2] Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act) to allow the Respondent to be represented by Mr Wayne Dever, Solicitor, from MRM Lawyers.

[3] The Applicant filed his unfair dismissal application on 12 November 2017. This application was lodged 111 days outside the statutory timeframe. The Act provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect. 1 The Fair Work Commission (the Commission) can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.

[4] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:

Section 394

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

Section 394(3)(a) reason for delay

[6] The Applicant was shocked that his position had been made redundant on the basis that there was so much IT work that needed to be undertaken and completed at the school. The Applicant submitted that at a meeting on 28 June 2017 where he was advised of his redundancy, he offered to work part time instead of being made redundant. The Applicant claims that the school’s principal Mr Paul Fua offered to provide the Applicant with contracting work if the Applicant possessed an ABN. The Applicant claims that he did not pursue an unfair dismissal remedy on the basis of this promise. I have taken this into account.

[7] The Applicant was sent an all staff email from a former colleague on 1 September 2017, which was sent by Mr Simon Pleskovic. Mr Pleskovic, who was a science teacher employed by the Respondent, had absorbed the Applicant’s duties into his role. Despite conversing with Mr Pleskovic by text message in August and receiving a copy of this email on 1 September, the Applicant claims that he did not know that Mr Pleskovic was undertaking his role until he received an email on 29 November 2017. At this point, the Applicant submitted, he realised he was not going to be provided with the promised contracting work. I have taken this into account.

[8] The Applicant is a member of the Seventh Day Adventist Church. The Applicant submitted that he was concerned at raising a legal complaint against the Respondent on the basis that it is part of the Church and he did not want to tarnish the Church’s reputation in the community. I have taken this into account.

Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[9] It is not in dispute that the Applicant knew that he was being made redundant on 28 June 2017. The Applicant offered to remain at work for a few days to complete a few IT jobs. The Respondent gratefully accepted the Applicant’s offer and the Applicant’s employment concluded on 3 July 2017. I have taken this into account.

Section 394(3)(c) any action taken by the person to dispute the dismissal

[10] The Applicant claims to have contacted the Fair Work Ombudsman on 3 July 2017 on the basis that he believed that his termination was due to an official bullying complaint that he had lodged with the school on 6 June 2017. This activity shows that the Applicant was investigating ways to dispute his termination. I have taken this into account.

Section 394(3)(d) prejudice to the employer

[11] I am satisfied that there would be no greater prejudice to the Respondent caused by the Applicant’s application being listed now than there would have been had the application been lodged in time.

[12] I am of the view that prejudice to the Respondent is a neutral consideration.

Section 394(3)(e) merits of the application

[13] In the matter of Kornicki v Telstra-Network Technology Group 3the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the application to establish that the substantive application was not without merit.” 4

[14] It was held in Kyvelos v Champion Sock Pty Ltd 5, that the Commission cannot make any finding on contested matters without hearing evidence, which is typically not called at this stage of the proceedings. The Full Bench went on to say that:

“The Commission should not embark on a detailed consideration of the substantive case.” 6

[15] The Applicant has made a number of assertions which, if proven to be correct, could go some way to substantiating that his dismissal may not have been a genuine redundancy. However, these assertions would need to be tested in a substantive hearing of the application.

[16] I am satisfied that the Applicant’s case is not without merit. I have taken this into account.

Section 394(3)(f) fairness as between the person and other persons in a similar position

[17] I am not aware of any other employee who was also made redundant at the same time as the Applicant who has commenced proceedings in the Commission. As such, this is a neutral consideration. I have taken this into account.

Conclusion

[18] Whilst I can understand the reticence of the Applicant to be seen to be complaining against his church, this reticence does not provide for an exceptional circumstance.

[19] Likewise, the failure of the school to honour the alleged promise for future IT work by the principal of the school does not create an exceptional circumstance. There may be a plethora of cogent reasons why the Respondent has not sought to use the Applicant’s services as an IT contractor – including the Applicant’s hourly rate.

[20] The Applicant was not aware of the 21 day statutory timeframe. This issue was determined by the Full Bench in Nulty to not be an exceptional circumstance. The Applicant contacted the FWO but did not take the matter any further. If the Applicant was of the view that his termination was due to his bullying complaint then he could have submitted a general protections application.

[21] I am of the view that the Applicant is a decent and genuine individual. However, the Applicant’s application is 111 days out of time. The reasons provided by the Applicant as to why his application was filed 111 days late are not “out of the ordinary course, unusual, special or uncommon.”

[22] The Applicant’s application for an extension of time to lodge his unfair dismissal claim is refused.

[23] The Applicant’s substantive application for an unfair dismissal remedy is dismissed.

[24] I so Order.

COMMISSIONER

 1   Section 394(2)(a)FW Act. Note that the 21 days for the lodgement does not include the date that the dismissal took effect by reason of operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6-where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   [2011] FWAFB 975

 3   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 4   Ibid.

 5   Print T2421

 6   Ibid at [14]

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