Sharmila Kaul v Childcare Management Service Pty Ltd

[2017] FWC 4628

[2017] FWC 4628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharmila Kaul
v
Childcare Management Service Pty Ltd
(U2017/6483)

COMMISSIONER MCKINNON MELBOURNE, 5 SEPTEMBER 2017

Unfair dismissal - extension of time - minimum employment period.

[1] On 16 June 2017, Ms Sharmila Kaul applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Kaul worked at Ingles Street Early Learning and Kinder for approximately 4 years. Her employment was terminated by the Centre operator, Childcare Management Service Pty Ltd (CMS), on 19 May 2017.

[2] Under the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal “took effect”, or such further period as the Commission allows if there are exceptional circumstances. 1 In this case, the standard 21 day time limit expired on 9 June 2017 and the application was made on 16 June 2017. The application was 7 days late.

[3] CMS objects to the application because it was lodged more than 21 days after the dismissal took effect and opposes any extension of time for the application to be made.

[4] The parties filed materials in support of their positions on 20 July 2017 and 31 July 2017. On 11 August 2017, a hearing was held to deal with the jurisdictional objection. The parties were self-represented. Ms Kaul and Mr Nalliah Suriyakumaran (Ms Kaul’s husband) gave evidence for Ms Kaul and Ms Kylie Morris gave evidence for CMS.

[5] This decision deals with whether there are exceptional circumstances that warrant a further period of time being allowed for Ms Kaul to file her application.

Relevant law

[6] Section 394(3) of the Act requires the Commission to take into account a number of factors in considering whether a period of time longer than 21 days should be allowed for a person to lodge an unfair dismissal application. The factors are:

• the reason for the delay;



• whether the person first became aware of the dismissal after it had taken effect;



• any action taken by the person to dispute the dismissal;



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



• the merits of the application; and



• fairness as between the person and other persons in a similar position.

[7] Importantly, an extension of time can only be allowed if the Commission is satisfied that there are “exceptional circumstances”. The principles as to what constitute “exceptional circumstances” were set out in Nulty v Blue Star Group 2. 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”.

[8] An individual seeking additional time to make an application must provide a credible reason for the whole of the period of delay. 3

The reason for the delay

[9] There are four reasons given by Ms Kaul for the delay in making her application. These are: emotional distress; language barriers; difficulty obtaining legal advice; and finally a belief that Ms Kaul could not apply for relief because of her probationary period.

[10] I deal with each in turn.

Emotional distress

[11] In submissions filed by Ms Kaul on 20 July 2017, she explained that she was extremely traumatised by the dismissal.

[12] Ms Kaul’s Form F2 application identifies a reason for not filing her application by 9 June 2017 as follows:

“Initially, I was emotionally and psychologically traumatised. It took me some time to explore and get legal advice and assistance.”

[13] In her evidence, she elaborated on this point:

“Initially I was very upset so I was not in proper frame of mind. But when the Department called me up I had to stand up and tell my side of the story otherwise I would always be the one who has done wrong.”

[14] I accept that Ms Kaul was upset by the termination of her employment. However, it is well established that the effects of dismissal such as stress, shock and confusion are unfortunately not unusual and not in themselves exceptional circumstances. 4

[15] I find that this factor does not weigh in favour of additional time.

Language barriers

[16] Ms Kaul’s submissions filed on 20 July 2017 note that English is her second language and she finds it difficult to write in English especially on complex legal forms.

[17] In the hearing, Ms Kaul gave evidence that she found the Form F2 on the internet by conducting her own research and with the help of two support persons. She confirmed that she completed the application herself.

[18] The Form F2 application states as follows:

“Accessing free legal advice was quite a challenge, especially since I was a recent migrant from India. I have had to fill this form myself without any expert legal opinion.”

[19] In answer to a question in cross-examination, Ms Kaul agreed that she has been in Australia since 2008, has a Diploma in Children’s Services and a general understanding of national childcare laws.

[20] On my reading of the Form F2, the answers given are clear, easy to understand and responsive to the questions asked.

[21] My observation of Ms Kaul during the hearing was that she generally understood the questions she was being asked and was able to answer them without difficulty. On occasions, questions had to be repeated, but that is a common experience when witnesses are giving evidence, particularly in cross-examination.

[22] Ms Kaul gave evidence that her husband and another friend helped make the application to the Commission. My observation of Mr Suriyakumaran was that he spoke English fluently and at times used sophisticated language in putting forward the case for Ms Kaul.

[23] Having regard to the evidence and my observations during the hearing, I am not satisfied Ms Kaul’s English language reading and writing skills were a reason for the delay. I have treated this factor as a neutral consideration.

Difficulty obtaining legal advice

[24] Ms Kaul’s submissions stated that difficulty obtaining legal advice was another reason for the delay. Specifically, she refers to attempts by Mr Suriyakumaran and family members on 2 June 2017 to obtain pro bono advice from agencies including Jobwatch and Legal Aid. According to Ms Kaul and Mr Suriyakumaran, the agencies contacted were unable to help.

[25] Ms Kaul emphasised that in making the application to the Commission, she did so “without expert legal advice”. It is not always, or even generally, necessary to obtain expert legal advice before making an application for an unfair dismissal remedy. There is extensive, plain language information about the unfair dismissal jurisdiction on the Commission’s website, with additional tools designed to make the jurisdiction more accessible.

[26] Once she decided to make the application, Ms Kaul was in any event able to do so without “expert legal advice”. My reading of the Form F2 application is that she did so in a way that clearly and adequately stated her claim and the reasons for it.

[27] I do not find this factor to weigh in favour of additional time.

The probationary period

[28] Ms Kaul says that because of her contract with CMS, she believed she was on probation, and that an unfair dismissal application was “pointless”. 5

[29] A letter from CMS to Ms Kaul dated 20 December 2016 includes the following statement:

“As you may be aware, Ingles Street Early Learning and Kinder has been sold to LEA Childcare Services Pty Ltd ABN 84 601 210 833 (the Sale). This is an offer by Childcare Management Services Pty Ltd ABN 85 602 236 751 (the Company), a related entity of LEA Childcare Services Pty Ltd to employ you with effect from the first business day following the date of completion of the sale on the terms and conditions set out in this letter…”.

[30] Under the heading “Consequences of your acceptance of this offer” it says:

“4. The Company will recognise all of your continuous service with your current employer as continuous service with it.

5. All of your personal/carer’s, annual leave, annual leave loading, and long service leave accrued with your current employer as at the date immediately prior to completion of the sale will be recognised by the Company, subject to its terms of employment and policies, and the Company will accept liability for such entitlements. All other entitlements based on service will be calculated by reference to your continuous service with your current employer and the Company but only to the extent that you have not previously received or been paid for such an entitlement.”

[31] The letter makes the offer of employment conditional upon matters including:

“completion of a minimum period of employment, which is clearly outlined in your Employment Agreement (also known as letter of offer).”

[32] The Employment Agreement between CMS and Ms Kaul, dated 21 December 2016, states as follows:

“As part of the purchase of the childcare business referred to in Item 15 of Schedule 1 to this agreement (Principal Place of Employment), to necessitate the transfer of ownership from the previous entity to ourselves, your employment with your current employer will terminate close of business on the date of settlement and will commence with the Company the first business day following the date of settlement.

Under the Fair Work Act 2009, when such occurring like this happens, they are known as a transfer of business. The transfer provisions under the Fair Work Act are based on the transferring of an activity and an employee going with that activity – this is what is occurring with yourself and your previously held role. As you effectively are becoming a new employee with the Company for the first time, the Fair Work Act (s384(2)(b)) provides that when a transfer of business occurs, a new employer can choose not to recognise the previous service of the employee with the old employer for the purposes of the minimum period of employment. What this therefore means to yourself in more simpler terms, is that as this is a new employment offer, you are required to re-serve a period of probation for the first six months of this new agreement. Please see Item 14 of Schedule 1 to this agreeement.

Your ongoing employment with the Company is subject to satisfactory completion of the minimum period of employment. The purpose of the minimum period of employment is to provide a means to mutually assess your suitability for the position. You or the Company may terminate your employment during the minimum period of employment by providing one week’s notice. The Company may elect to make a payment in lieu of part or all of the notice period.”

[33] Ms Kaul described a discussion she had with the “co-director of the company” about the Employment Agreement and covering letter. She said:

“I did ask the Co-director of the company that I have been made to sign this document and I have gone back on probation again. She told me very clearly “this is not for you – because Matthew has changed the company, it does not affect your employment.”

[34] It is not clear what reliance Ms Kaul placed on this statement at the time.

[35] Mr Suriyakumaran gave evidence that on 26 May 2017, he called the Commission’s helpline and was told that Ms Kaul could not access unfair dismissal because she was on probation. This evidence is not without doubt. It would be unusual for a member of staff of the Commission to give advice about an individual case. It is more likely that there was a general discussion about whether employees on probation could access unfair dismissal, and that Mr Suriyakumaran misunderstood what was being said. I have not given this evidence much weight.

[36] Ms Kaul said that she read on the Form F2 application that “unfair dismissal does not apply to employees on probation”. The Form F2 application does not refer to “probation” but it does refer to the “minimum employment period”, in the following way:

“To be eligible to apply, you must have worked for the minimum employment period and, in some cases, earn less that the high income threshold. The Commission’s Unfair Dismissal Benchbook has information on each of the eligibility criteria.”

[37] It is not clear from the evidence if Ms Kaul had access to the Form F2 application before 16 June 2017, when she filled out the form and filed it with the Commission.

[38] Five days later, on 21 June 2017, Ms Kaul met with a lawyer through the Commission’s Workplace Advice Clinic program and obtained advice about her application.

[39] Ms Kaul gave evidence that she undertook specific research about whether she had completed the minimum employment period, and discovered that there were ‘close business and management links’ between her former employer and CMS. I accept that she did so, but again I am unable to identify precisely when this began. According to Ms Kaul, it was after she met with the lawyer on 21 June 2017. 6

[40] Relevantly, CMS filed its Form F3 Employer Response on 30 June 2017. This was the first time that Ms Kaul would have known her application was opposed because it was “out of time” and because her employment did “not meet the minimum employment period”.

[41] Ms Kaul said that it was only on or around 2 July 2017 that she realised her application may have merit. Company extracts filed as evidence of the research she did to assist her case are dated 3 July 2017 7, 4 July 20178 and 11 July 20179 respectively.

[42] According to Ms Kaul, she subsequently received advice from JobWatch that because her Employment Agreement was signed after the transfer of business to CMS and because the two companies were associated entities, her unfair dismissal application had merit. 10

[43] Taking the evidence as a whole, I find that until 2 July 2017, Ms Kaul believed that because she had been employed on probation, she could not make an unfair dismissal claim.

[44] However, I am not satisfied this was a reason for the delay in making her application.

[45] The evidence is that Ms Kaul decided to file her application on 16 June 2017, and that she made her application immediately once the decision was made. It was only after 16 June 2017 that she embarked on the process of researching her claim and seeking legal advice in a bid to challenge her dismissal. 11

[46] The decision to make the application was directly related to a telephone call from the Department of Education and Training at approximately 2.00pm on 16 June 2017, when she was advised that a case had been registered against her and asking her to attend a meeting. After this call, Ms Kaul said:

“I was concerned that my registration as a Child Care Worker may be under threat.”

[47] According to Ms Kaul, she “decided to lodge the application”, because she “wanted to tell my side of the story too.”

[48] Taking all of the evidence into consideration and having regard to the reasons given by Ms Kaul for the late filing of her application, I find that the reason for delay was that Ms Kaul was simply too upset to challenge her dismissal. This changed on 16 June 2017, when she became concerned that her future employment prospects were at risk.

[49] As noted above, emotional distress is unfortunately quite common when an employment relationship comes to an end. It is not an exceptional circumstance. I find that the reason for delay does not weigh in favour of the grant of additional time.

Whether the person first became aware of the dismissal after it had taken effect

[50] It is uncontested, and I find, that Ms Kaul became aware of the dismissal on 19 May 2017 when the dismissal took effect.

[51] This factor does not weigh in favour of additional time to make the application.

Any action taken by the person to dispute the dismissal

[52] There is no evidence that Ms Kaul herself took any action to dispute the dismissal until 16 June 2017. The evidence is that, once she decided to take action to dispute the dismissal, she was able to do so immediately.

[53] Mr Suriyakumaran said he called the Commission’s helpline on 26 May 2017 to ask about unfair dismissal. According to Ms Kaul, both Mr Suriyakumaran and other family members made a number of phone calls on 2 June 2017 searching for ‘pro bono’ employment law advice. Nothing came from these calls, and no further steps were taken to dispute the dismissal until 16 June 2017.

[54] This factor does not weigh in favour of additional time to make the application.

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

[55] There is no evidence of any prejudice to the employer if additional time were granted and I find that in this case, the employer would not be prejudiced by having to respond to an application made 7 days late.

[56] This factor is neutral in my consideration.

The merits of the application

[57] The application for extension of time is being considered before the merits of the application have been properly considered. However, there is sufficient material on the file to indicate that there is a significant factual dispute between the parties over an incident involving a child in care.

[58] Without having the benefit of sworn and tested evidence, I am not prepared to make any findings as to the merits of the application at this stage. Accordingly, I find this to be a neutral factor in my consideration.

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

[59] This factor does not appear to be relevant and I find that it is a neutral consideration in this case.

Conclusion

[60] For the reasons set out above, on balance, I am not satisfied that there are exceptional circumstances such that the Commission should allow Ms Kaul a further period of time to make her application.

[61] It follows that it is not necessary to deal with the jurisdictional objection in relation to the minimum employment period.

[62] The application is dismissed.

COMMISSIONER

Appearances:

N Suriyakumaran for the Applicant

M Matthew for the Respondent

Hearing details:

2017.

Melbourne:

11 August.

 1 Section 394(2)

 2 [2011] 203 IR 1

 3   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403

 4   Shaw v Australia & New Zealand Banking Group Ltd[2015] FWCFB 287

 5   Exhibit A2

 6   Exhibit A2

 7   Edhod Childcare Services Pty Ltd

 8   Edhod Pty Ltd

 9   Crazy Penguin Pty Ltd

 10   Exhibit A2

 11   Exhibit A2

Printed by authority of the Commonwealth Government Printer

<Price code C, PR595871>