Sharon Kay Copping v Motown Media Pty Ltd
[2010] FWA 7410
•14 OCTOBER 2010
[2010] FWA 7410 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sharon Kay Copping
v
Motown Media Pty Ltd
(U2010/8292)
COMMISSIONER HAMPTON | ADELAIDE, 14 OCTOBER 2010 |
Application for unfair dismissal remedy – preliminary point – extension of time – whether exceptional circumstances – whether extension warranted and appropriate in the circumstances.
INTRODUCTION AND CASE OUTLINE
[1] The matter arises in the context of an application made by Ms Sharon Copping (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Motown Media Pty Ltd (the respondent).
[2] The alleged dismissal of the applicant took effect on Friday 5 March 2010 and this application was lodged with Fair Work Australia on 28 April 2010. The applicant has sought an extension of time to permit the application to be lodged beyond the 14-day period nominated by s.394(2) of the Act.
[3] The matter has been subject to conciliation but not resolved and the respondent opposes the extension of time being granted.
[4] Following a telephone directions conference, both parties filed materials in support of their respective positions and given the absence of factual disputes I have decided, with the concurrence of the parties, to determine the extension of time application based upon the materials as filed. 1
[5] The applicant, who was represented with permission by Mr Cocks, accepts that she is obliged to satisfy Fair Work Australia that there are “special” circumstances and contends that these need not be exceptional but rather, special to the applicant and or the application. 2 Further, the applicant argues that she sought to resolve all matters arising from her alleged dismissal through negotiations without having to commence legal proceedings. This was said to be in part due to her medical condition and the need to avoid exacerbating her anxiety and depression by contemplating legal action.
[6] The applicant also argues that this represents a sound reason for the delay and that as the employer has known about the dispute arising from the alleged dismissal for some time and has not been prejudiced by the delay, an extension of time should be granted.
[7] The “special” circumstances according to the applicant also included the alleged failure of the respondent to provide a formal response to her claims until 7 May 2010 and its failure to unconditionally reject the applicant’s attempts at resolution until 18 May 2010.
[8] The applicant provided evidence in the form of an affidavit sworn by her, which included reference to some medical reports, and an affidavit by Mr Cocks, which included correspondence exchanged between the parties following the applicant’s alleged dismissal.
[9] The respondent, which was represented with permission by Mr Kadis, contends that the exceptional circumstances as required by the Act have not been demonstrated in this case. Further, it argues that the applicant has failed to pursue her unfair dismissal claim in a manner consistent with the spirit and intent of the Act. Rather, it contends that the applicant has sought to “leverage” her alleged claim for the purposes of seeking to negotiate a settlement of other claims falling outside of the jurisdiction of Fair Work Australia.
[10] Given that the applicant had access to legal advice throughout the period and was aware that the facts and merit of the alleged dismissal were in dispute from the outset, the respondent contends that Fair Work Australia should not exercise its discretion to extend the time for lodgement in this matter.
[11] The respondent provided evidence in the form of an affidavit sworn by Mr Stephen Scott, its Business Manager.
THE STATUTORY CONTEXT
[12] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:
“….
(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.”
[13] Section 396 of the Act provides in part, that Fair Work Australia must determine whether the application was made within the period required by s.384(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.
THE BROAD FACTS OF THE MATTER
[14] The applicant last attended the workplace of the employer on Friday 5 March 2010. There was a discussion with the applicant about alleged conduct matters and the potential for the applicant to resign was discussed. There is a dispute about whether the applicant was given an ultimatum to resign. The applicant left the workplace on that day.
[15] On 9 March 2010, the applicant attended the offices of Mr Cocks to instruct him in relation to the alleged dismissal and related matters.
[16] On 16 March 2010, Mr Cocks spoke to the respondent’s General Manager, Mr Scott, and advised him that the applicant wished to resolve “the matter” by negotiation and did not want to make a “workers’ compensation claim”.
[17] Mr Cocks again spoke to Mr Scott on 16 March 2010 and the discussion included a suggestion that the applicant was on leave and had not tendered a resignation. Mr Cocks advised the respondent that if there was a resolution, there would be no need for the respondent to send a formal notice of termination.
[18] On 18 March 2010, Mr Cocks wrote to the respondent on behalf of the applicant. This letter alleged that the applicant was dismissed and had the basis for an action for “wrongful dismissal” but that she was seeking a satisfactory outcome to negotiations to, in effect, permit her departure from the workplace to be by mutual agreement. The letter also alleged that the applicant had worked extensive amounts of unpaid overtime and had become very distressed about the workload and responsibilities of her role in recent years.
[19] Mr Cocks also raised issues of unpaid superannuation, monies spent by her on behalf of the respondent but not reimbursed and the consequences of her alleged dismissal leading to a failure to qualify for pro-rata long service leave. A claim involving payments in relation to these and other matters was also detailed.
[20] On 24 March 2010, in a telephone conversation, Mr Scott indicated to Mr Cocks that he refuted much of the applicant’s version of the alleged dismissal. It is also the case that Mr Scott refused to provide details of the basis upon which it allegedly dismissed the applicant and indicated that further advice would be sought by the respondent.
[21] On 25 March 2010, Mr Cocks again wrote to the respondent and alleged that the respondent had dismissed the applicant on the basis of misconduct and sought that the alleged misconduct be disclosed. The letter also indicated that any misconduct was denied and that a failure to provide further details would leave the applicant with “no alternative but the issue of proceedings for wrongful dismissal”.
[22] There is no evidence of any further contact between the parties between 25 March 2010 and the eventual lodgement of this application.
[23] On 8 April 2010, the applicant lodged a claim against the respondent pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act claim).
[24] The s.394 unfair dismissal application in this matter was lodged on 28 April 2010. The application contends that the applicant had been in employment with the respondent since 2003 and that she was given an ultimatum on 5 March 2010 that she could resign or be dismissed on the basis of alleged misconduct.
[25] On 7 May 2010, Mr Scott responded to the applicant’s earlier letters and confirmed its rejection of most of the allegations.
[26] The applicant apparently attended a consultant psychiatrist on 19 May 2010 in relation to her WRC Act claim. The report from Dr Begg indicated a diagnosis of a major depressive disorder and concluded on the balance of probabilities that her employment was the substantial cause. I note that the report also emphasised the desirability of an early resolution to the applicant’s WRC Act claim.
[27] The applicant also apparently attended Dr Tomlian, a psychologist and on 29 July 2010 he provided advice to the effect that the applicant was suffering an on-going incapacity and that the goal of the rehabilitation program should be to seek alternative employment.
[28] The response to the s.394 application subsequently filed by the respondent with Fair Work Australia does not accept that a dismissal at its initiative has taken place and generally denies the version of events surrounding the alleged dismissal.
[29] I note also that the respondent contends that it employed less than 15 employees at the time of the alleged dismissal. As a result, should the extension be granted, a further preliminary issue may need to be determined. 3
CONSIDERATION
[30] The alleged dismissal of the applicant was communicated on 5 March 2010 and the applicant contends that it was effective on that day. The unfair dismissal application was lodged with Fair Work Australia some 38 days beyond the 14-day period provided by s.394(2) of the Act.
[31] Section 394(3) of the Act provides Fair Work Australia with discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.
[32] I note that a recent Full Bench referred to the ordinary dictionary meaning of “exceptional” by reference to the concepts of “forming an exception or unusual instances; unusual; extraordinary”. 4 I understand from the approach taken in that decision, and by the statute itself, that it is the considerations cited in s.394(3) which must inform that assessment. In that light, the circumstances need not of themselves be unique or unprecedented.5
[33] The applicant must convince Fair Work Australia to exercise the discretion to extend time for the lodgement of the s.394 application.
[34] Although the statutory discretion requires the considerations relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections.
The reason for the delay
[35] There are a number of relevant aspects in terms of the reasons for the delay. These arise in part from the conduct of the applicant in pursuing this matter. That is, the decision to seek that the issues arising from her employment and alleged dismissal be resolved by agreement prior to lodging this application.
[36] It is not appropriate or necessary for me to make conclusive findings about the medical evidence provided as part of the applicant’s affidavit. I am prepared to accept for present purposes that she was distressed as a result of the meeting conducted by the respondent on 5 March 2010 and that she has subsequently suffered from a depressive disorder. This is relevant to the consideration of the reasons for the delay.
[37] I accept that the concept of contemplating the taking of proceedings against the respondent was difficult for the applicant and that an agreed resolution was desirable given her circumstances. This may be a reasonable explanation for not immediately filing the s.394 application.
[38] However, given the sequence of events in the context of the alleged dismissal and the 14-day time limit of the Act, I do not consider that there is a sound reason for much of the subsequent delay.
[39] It was clear by 24 March 2010 that the respondent had denied the basis of the alleged dismissal and was refusing to provide further details of any alleged misconduct. Although Mr Scott was to seek further advice, there was not on any version of that conversation a promise that any response or proposal would be forthcoming. Indeed, Mr Cocks directly threatened the respondent with the issuing of these proceedings shortly after that point.
[40] Although the applicant’s mental state is a relevant consideration, it was apparently not such that she could not instruct Mr Cocks to make settlement proposals or indeed to lodge the WRC Act claim, which was initiated some 20 days before this application was lodged.
[41] There was a period of some 34 days between the threat of the wrongful dismissal claim made on 25 March 2010 and the eventual lodgement of this application. Even allowing for some short period to await a response to the threat of action, there is not a satisfactory explanation for the further delay. Indeed, there is no satisfactory explanation for filing the unfair dismissal application at the point that it was.
[42] With respect to Mr Cocks, there are very real issues about the manner in which this application was handled given the 14-day time limit and the circumstances at the time. The applicant has not claimed representative error and could not do so as the basis of the explanation was the apparent desire to pursue an alternative course of action. In any event, the evidentiary basis for such a claim has not been provided, including but not limited to the absence of evidence as to any instructions to file the unfair dismissal application earlier than it was. 6
[43] The absence of a satisfactory reason to explain much of the delay in lodging the application is a consideration that militates against the finding of relevant exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[44] The applicant took the view that she was dismissed as a result of the discussion on 5 March 2010 and within two working days had sought legal advice.
[45] I have considered the impact of the dispute about the existence of a dismissal and the fact that there was some apparent discussion about the applicant being treated as being on leave for a period after that time. This does raise issues about whether the applicant was dismissed and potentially as to when a dismissal, if it took place, was effective.
[46] The unfair dismissal application and this extension of time application has been squarely mounted by the applicant on the basis that the alleged dismissal was effective from 5 March 2010. As a result, I consider that it is appropriate that I decide the matter on that basis. I have however allowed for the fact that at least in the initial period following the alleged dismissal, there were some discussions about the matter including a view by the respondent that the applicant was taking some leave.
Any action taken by the person to dispute the dismissal
[47] The applicant took steps to seek advice about the alleged dismissal shortly after it occurred. The applicant initiated contact with the respondent some 11 days after the alleged dismissal and the respondent has been on notice since at least 18 March 2010 (12 days after that event), that the applicant may take some form of proceedings in relation to the claimed termination.
[48] This consideration is relevant to a finding of relevant exceptional circumstances and the exercise of discretion in this matter.
Prejudice to the employer (including prejudice caused by the delay)
[49] The respondent has not raised any substantive matters of material prejudice in this context. The absence of such prejudice is a consideration supporting this application but not in itself a reason to grant an extension. 7
The merits of the (unfair dismissal) application
[50] The merits of the substantive application are hotly contested. This includes whether there was a dismissal within the meaning of the Act.
[51] The consideration of the merit of the application in this context is limited to the prima facie merits. It is not appropriate to canvass and attempt to resolve the substantive application as part of this exercise. 8
[52] It is sufficient to indicate for present purposes that there are certain jurisdictional hurdles but the applicant has an arguable case in relation to those issues and the merit of the unfair dismissal application more generally.
[53] I add that the applicant has also raised a series of alleged underpayments and a potential claim in relation to Long Service Leave in her solicitor’s correspondence with the respondent, and that the WRC Act claim may also be live. These aspects are beyond the present jurisdiction of Fair Work Australia and can be pursued independently of this application. Although the medical status of the applicant and any payments made as a result of the WRC Act claim may be relevant to any remedy in this matter, these other claims are not in their own right a relevant consideration in terms of the present matter.
Fairness as between the person and other persons in a similar position
[54] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, 9 nothing has been put to me in this regard. The consistent application of principles adopted by Fair Work Australia in similar matters is however in line with this consideration and I have sought to adopt that approach in this matter.
CONCLUSION AND ORDER
[55] In my view, after taking into account the factors cited in s.394(3) of the Act, exceptional circumstances within the meaning of the Act have not been established. That is, I am not satisfied that there are exceptional circumstances such as to enable or warrant the exercise of the discretion to allow an extension of the timeframe for the making of the unfair dismissal application.
[56] An order dismissing the application (PR502653) is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
C Cocks (of counsel) with permission for the applicant.
T Kadis (of counsel) with permission for the respondent.
Written submissions:
Applicant:
2010
20 August
28 September.
Respondent:
2010
6 September.
1 S.397 of the Act contemplates a matter being determined without holding a hearing where there is an absence of (relevant) factual disputes. There are factual disputes concerning the alleged dismissal however these do not go directly to the considerations arising in this matter. The parties were also given leave to apply for a hearing and neither did so.
2 Written submission filed on 28 September 2010.
3 The Small Business Fair Dismissal Code will be relevant if the alleged size of the employer is demonstrated and a relevant dismissal was found.
4 Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers[2010] FWAFB 7251, 17 September 2010, per Acton SDP, Cartwright SDP and Thatcher C.
5 Parker v Department of Human Services[2009] FWA 1638, per Whelan C.
6 See the discussion of this consideration in Clark v Ringwood Private Hospital AIRC Print P5279, 22 September 1997 per Ross VP, Drake SDP and Deegan C. Although decided under earlier legislation the principles remain generally apposite in my view.
7 Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.
8 Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
9 This factor as referred to in Brodie-Hanns v MTV Publishing Ltd (cited in the Explanatory Memorandum to the Fair Work Bill 2008) would appear to be capable of having a broader application than only employees within the business concerned.
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