Sharon Thomas v YMCA Perth Inc. YMCA of Perth Youth and Community Service Inc. T/A YMCA WA

[2016] FWC 2643

[2016] FWC 2643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon Thomas
v
YMCA Perth Inc. – YMCA of Perth Youth and Community Service Inc. T/A YMCA WA
(U2015/13656)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 27 APRIL 2016

Application for relief from unfair dismissal – extension of time – no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed.

[1] Mrs Sharon Thomas (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by YMCA Perth Inc. – YMCA of Perth Youth and Community Service Inc. T/A YMCA WA (the Respondent) on 1 September 2015 was harsh, unjust and unreasonable.

[2] On 16 October 2015 the Commission wrote to Mrs Thomas indicating that her application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was made twenty-three days outside the 21 day statutory timeframe. The letter requested that Mrs Thomas complete an Outline of Argument and Statement of Evidence to assist the Commission in determining whether or not to extend the time for Mrs Thomas to make her application.

[3] The extension of time issue was the subject of a telephone hearing on 24 November 2015. At the telephone hearing, Mrs Thomas appeared on her own behalf together with her husband, Mr Mitch Thomas; while Ms Beth Robinson appeared with permission for the Respondent.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, Mrs Thomas’ application will be dismissed.

Background

[5] Mrs Thomas was appointed by the Respondent as Centre Supervisor at YMCA Butler OSHC on 11 November 2013. In December 2013 Mrs Thomas was counselled regarding inappropriate behaviour/conduct. In July 2014 Mrs Thomas was issued a written warning for a breach of the Respondent’s policies and in late 2014 she was issued with a final warning and was placed on a Performance Improvement Plan (PIP). In February 2015, Mrs Thomas was advised that her performance had improved following the PIP.

[6] On 6 August 2015 Mrs Thomas was stood down on full pay after the Respondent was advised by the Education and Care Regulatory Unit (ECRU) in the Western Australian Department of Local Government and Communities that it had received a complaint from a parent regarding the treatment of his son by Mrs Thomas. ECRU subsequently investigated the complaint, as did the Respondent.

[7] On 27 August 2015, the Respondent issued a “Show Cause” letter to Mrs Thomas which stated, among other things, the following:

“I refer to our most recent correspondence dated 6th August 2015 where you were formally stood down form [sic] your duties as Centre Supervisor at YMCA Butler OSHC pending an investigation of your conduct following a complaint lodged on 13th July 2015.

Background

We confirm the background to this matter is as follows:

(a) You are currently employed in the full time position of Centre Supervisor – YMCA Butler OSHC

(b) On 13 July and subsequently on the 20 July 2015 a complaint was lodged against you in relation to allegations that you restrained a child unnecessarily and that resulted in physical harm to the child

(c) On 6 August you were notified of your suspension from duty pending an investigation

(d) This matter was investigated by the Education and Care Regulatory Unit (ECRU) and you were interviewed on 13 August 2015

(e) The YMCA WA undertook an internal investigation which commenced on 20 August 2015

(f) The Education and Care Regulatory Unit concluded in correspondence to the YMCA WA on 13 August 2015 that in their assessment you had breached policies and procedures set down by the YMCA WA

Show Cause

Following the YMCA’s internal investigation and in light of the assessment from ECRU, YMCA has formed the view that you have breached fundamental policies and processes which has resulted in the centre receiving a compliance notice against its record due to regulations being breached. Therefore you have failed to demonstrate the qualities and capacity to perform the inherent requirements of your full time role as Centre Supervisor.

You are now required to show cause at a meeting to be held on Tuesday 1st of September at 11.00am why YMCA should not end your employment on the basis that you have been assessed as breaching fundamental policies and processes.

Your response at the above meeting is your final opportunity to provide information and show reasons why YMCA should not end your employment as the Centre Supervisor.”

[8] Mrs Thomas was dismissed on 1 September 2015 after the abovementioned show cause meeting. The termination letter stated as follows:

“… the decision has been made to terminate your employment contract in your position as Centre Supervisor effective from 1 September 2015 on the following basis:

• As Centre Supervisor you failed to obtain sufficient and relevant information during the on boarding process in relation to the child in question to allow proper and appropriate supervision



• Your action of grabbing the child was in direct contravention to YMCA policies and practices”

[9] As previously noted, Mrs Thomas’ unfair dismissal application was received by the Commission on 15 October 2015, twenty-three days outside the 21 day statutory timeframe.

The Relevant Legislation

[10] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] Mrs Thomas submitted that the primary reason for the delay in lodging her application related to the determination of her Freedom of Information (FOI) request to ECRU seeking to obtain a copy of its investigation report and associated materials. That FOI request was made on 3 September 2015 and was determined on 5 October 2015, with the material released received by Mrs Thomas on 7 October 2015.

[13] At the telephone hearing, in response to a question from the Commission, Mrs Thomas stated that she was not aware of the 21 day timeframe for making an unfair dismissal application and that she did not contact the Commission or seek advice elsewhere as to what options may be available to her in respect of her dismissal. Also at the hearing, neither Mrs Thomas nor her husband were able to explain why her application was dated 2 September 2015, though following the telephone hearing Mr Thomas emailed the Commission advising that he had downloaded a “PDF” from the Commission regarding unfair dismissal on that day.

[14] The Respondent highlighted at the telephone hearing that Mrs Thomas’ application was dated 2 September 2015 yet the application was not received by the Commission until 15 October 2015, adding that the reason for this discrepancy was not clear. More specifically, the Respondent submitted that the Commission’s website makes it clear that there is a 21 day timeframe regarding unfair dismissal applications. The Respondent further submitted that ignorance of the statutory timeframe was not an acceptable excuse, particularly in circumstances where no inquiries had been made.

[15] The Respondent also pointed out that even if the FOI request were to be accepted by the Commission as a legitimate reason for the delay, Mrs Thomas had not explained why her application had not been lodged until 15 October 2015 in circumstances where she had received the material released in response to her FOI request on 7 October 2015. The Respondent contended that the FOI request regarding the ECRU investigation was not relevant as the Respondent had relied upon its own investigation as opposed to the ECRU investigation in deciding to dismiss Mrs Thomas. Finally, the Respondent relied on the decision in Timothy Byrnes v Department of Broadband, Communications and the Digital Economy 1.

[16] With regard to Mrs Thomas’ submission that she was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 2a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[17] By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[18] Further, it is difficult to accept Mrs Thomas’ submission that she was unaware of the 21 day timeframe in circumstances where Mr Thomas subsequently acknowledged that he had downloaded the unfair dismissal application form from the Commission’s website on 2 September 2015.

[19] As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 3, an employee needs to provide a credible reason for the whole of the period that the application was delayed. In this case, Mrs Thomas provided no explanation as to why it took her more than a week to lodge her application with the Commission after receiving the material released as a result of her FOI request. As such, I am not satisfied that Mrs Thomas has provided a credible reason for the whole period of the delay.

[20] Taken together, the above considerations do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[21] It is not disputed that Mrs Thomas was aware that her employment was terminated on 1 September 2015.

[22] I therefore consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[23] At the telephone hearing, Mrs Thomas submitted that at the show cause meeting on 1 September 2015 and prior to her dismissal she argued that she should be demoted rather than dismissed. However, Mrs Thomas did not point to any steps taken following her dismissal to dispute her dismissal prior to lodging her unfair dismissal application, other than lodging her FOI request.

[24] While the Respondent accepted that Mrs Thomas had disputed her dismissal prior to it occurring, it contended that Mrs Thomas took no steps following her dismissal to directly dispute her termination with it.

[25] This does not point to the existence of exceptional circumstances.

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

[26] Mrs Thomas contended that the Respondent would not be prejudiced were an extension of time granted.

[27] The Respondent acknowledged that this factor was a relatively neutral consideration. Beyond that, the Respondent contended that it was entitled to the benefit of the statutory time limit and that prejudice would flow from having to defend a claim which it might not otherwise have had to.

[28] While I note the Respondent’s contention, I nevertheless consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] In the material Mrs Thomas submitted to the Commission, she refuted the allegation made by the parent, contended that her past positive history at YMCA had not been taken into account in the decision to dismiss her and described the ECRU report as “littered with lies, misleading information and outright libellous allegations”. At the telephone hearing, Mrs Thomas submitted that she considered her dismissal unfair and disputed that she had been aggressive with the child at the centre of the complaint. Mrs Thomas further submitted that the written warning she had previously received had expired two days prior to dismissal and therefore should not been taken into account, adding that no concerns regarding her performance had been expressed since that warning was issued. Finally, Mrs Thomas contended that there had been no fairness in the process from the start.

[30] The Respondent submitted that Mrs Thomas’ application had no substantial merit. More particularly, the Respondent contended that Mrs Thomas had not challenged the basis of her dismissal but that her application seemed instead to challenge the ECRU investigation. In its oral submissions, the Respondent also highlighted that it had raised a number of performance and disciplinary issues with Mrs Thomas. The Respondent submitted at the telephone hearing that in two of the three investigation meetings conducted by either it or ECRU regarding the parent’s complaint, Mrs Thomas admitted to grabbing the child in question. Mrs Thomas did not dispute this in her response to that material or at the hearing.

[31] Based on the material before the Commission and particularly in circumstances where as part of the Respondent’s and ECRU’s investigations Mrs Thomas admitted to grabbing the child, the merits of Mrs Thomas’ application do not appear to be strong. This weighs against the existence of exceptional circumstances.

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

[32] Mrs Thomas did not directly address this factor in her submissions, other than indicating that she wanted people in a similar situation to her to know they had somewhere to go to seek redress.

[33] The Respondent did not directly address this factor in its submissions.

[34] I therefore consider this factor to be a neutral consideration.

Conclusion

[35] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

“[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.”

[36] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[37] Accordingly, Mrs Thomas’ application will be dismissed. An order to that effect will be issued in due course.

Appearances:

S. Thomas with M. Thomas for the Applicant.

B. Robinson for the Respondent.

Hearing details:

2015.

Canberra and Perth (telephone hearing):

November 24.

 1   [2012] FWA 7744

 2 (2011) 203 IR 1

 3 (2010) 197 IR 403 at 408-409

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