Shoshana Amzalak v State of Victoria (Department of Education and Training)
[2016] FWC 8350
•22 NOVEMBER 2016
| [2016] FWC 8350 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shoshana Amzalak
v
State of Victoria (Department of Education and Training)
(U2016/11670)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 22 NOVEMBER 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] Ms Shoshana Amzalak (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 21 September 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by the Victorian Department of Education and Training (the Respondent) on 24 August 2016 was unfair.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was lodged seven days outside the 21 day statutory timeframe.
[3] The extension of time issue was heard on 18 November 2016. At the hearing, the Applicant appeared on her own behalf, while Mr David Woodman appeared with permission for the Respondent.
[4] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Ms Amzalak’s application will be dismissed.
Background
[5] The Applicant commenced employment with the Respondent as a school teacher in October 2001.
[6] In its Form F3, the Respondent set out several instances of inappropriate conduct by the Applicant dating back to August 2010. In September 2013 following an investigation into the Applicant’s conduct and her discharge of her duties she was both reprimanded and reduced in classification level. The Applicant was also warned that any future transgressions would, in all likelihood, lead to the termination of her employment. More recently, in December 2015 the Respondent commenced an investigation into further allegations regarding the Applicant’s conduct and her failure to comply with a lawful direction. In August 2016 the Applicant was advised that the Respondent had formed a preliminary view that her employment ought to be terminated. The Respondent provided the Applicant with an opportunity to respond on that and, inter alia, the investigation report and its findings. Having considered the Applicant’s response, the Respondent subsequently decided to terminate the Applicant’s employment on 24 August 2016 and pay her in lieu of notice.
[7] In other developments, on 13 July 2016 the Applicant lodged an anti-bullying application with the Commission. That application was dismissed by the Commission on 27 September 2016 1 on the basis that there was no jurisdiction for the Commission to deal with the matter2.
[8] As previously noted, the Applicant’s unfair dismissal application was received by the Commission on 21 September 2016, 7 days outside the 21 day statutory timeframe.
The Relevant Legislation
[9] 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)
[10] 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
[11] The Applicant in her submissions relied on two main reasons for the delay in lodging her application. The first was that she was pursuing an anti-bullying application against the Respondent and based on information she obtained from the Commission’s website believed that she was unable to concurrently pursue that application and an unfair dismissal application. In support of that contention, attached to the Applicant’s written submissions was a copy of an email sent to Commissioner Hampton’s chambers by the Applicant’s representative on 19 September 2016 asking whether she could lodge an unfair dismissal application prior to her anti-bullying application being determined. The Commissioner’s acting Associate responded to the email on the morning of 20 September 2016 confirming that an unfair dismissal application could be lodged concurrently with an anti-bullying application and stating that if the Applicant intended to lodge an unfair dismissal application that she should “attend to this urgently.” The second reason for the delay relied upon by the Applicant was that she was under a lot of stress and was suffering from trauma and depression as a result of the treatment she had endured whilst employed by the Respondent.
[12] The Respondent in its submissions characterised the first reason relied on by the Applicant as ignorance of the interaction of the Act’s anti-bullying and unfair dismissal provisions. As to the second reason, the Respondent highlighted that the Applicant had provided no medical evidence to support her contention. The Respondent further submitted that the fact that the Applicant was actively pursuing her anti-bullying application in the immediate aftermath of her dismissal indicated that she was not incapacitated to such an extent that she was unable to lodge an unfair dismissal application within the 21 day timeframe.
[13] At the hearing, in response to a question from the Commission, the Applicant was unable to either recall when she became aware of the 21 day timeframe for lodging an unfair dismissal application or point to any steps she took prior to the abovementioned email of 19 September 2016 to clarify what options might be available to her to dispute her dismissal. With more particular regard to that email, I note that it referred to the 21 day timeframe and was sent five days after the 21 day timeframe had expired.
[14] With regard to the Applicant’s contention that she was relying on material from the Commission’s website to form the view that she could not pursue an unfair dismissal application while also pursuing her anti-bullying application, the Applicant did not provide the material she relied upon to form that view. However, the Respondent submitted at the hearing that an examination of the Commission’s website indicated that the termination of employment page on the Commission’s website stated that:
“If you have been dismissed from your employment, there are 3 types of applications that may be relevant to your circumstances, though you can only lodge 1 of these applications with the Commission.
It is important to note that the application must be received by the Commission within 21 days of your dismissal taking effect.” 3 [Emphasis as per original]
[15] The three types of applications subsequently described on the page are unfair dismissal, general protections dismissal and unlawful termination applications.
[16] In addition, the Respondent referred to the Unfair Dismissal Benchbook which, when discussing multiple actions, stated that:
“When employment is terminated, it will be necessary to choose one of several options for challenging the termination, (apart from an unfair dismissal application there could for example, be a right to make a general protections application or a claim under anti-discrimination laws).
Multiple actions in relation to the same dismissal are NOT permitted.” 4 [Emphasis as per original]
[17] Neither of the above extracts supports the Applicant’s contention. Beyond this, the Commission has been unable to identify any material on its website which would support the Applicant’s contention. While it is possible that the Applicant may have simply misinterpreted the above information, as noted above it was not until the email of 19 September 2016 (i.e. after the 21 day period had expired) that she took any steps to clarify the situation.
[18] As to the second reason relied upon by the Applicant, I note that the Applicant did not provide any medical evidence to indicate to what, if any, extent she was incapacitated from making an unfair dismissal application as a result of any distress she may have endured following her dismissal. I note also shock and trauma are not uncommon reactions among persons who have recently lost their job and do not of themselves constitute exceptional circumstances. Further, an examination of the Commission’s file relating to the Applicant’s anti-bullying application indicates that a written submission in that matter was filed on her behalf on 12 September 2016 (i.e. 19 days after her dismissal). This does not point to the Applicant being incapacitated to such an extent that she was unable to lodge her unfair dismissal application.
[19] 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
[20] It was not disputed that the Applicant was aware that her employment ceased on 24 August 2016.
[21] I therefore consider this factor to be a neutral consideration.
(c) Any action taken by the person to dispute the dismissal
[22] It was not disputed that the Applicant took no action to dispute her dismissal prior to lodging her unfair dismissal application, though the Applicant submitted that this was because she was in shock and afraid to speak. The absence of any action to dispute the dismissal does not point to the existence of exceptional circumstances.
(d) Prejudice to the employer (including prejudice caused by the delay)
[23] The Respondent did not contend that it would be prejudiced were an extension of time granted. However it did submit that the absence of prejudice was not a sufficient basis to grant an extension of time 5.
[24] Against that background, I consider the issue of prejudice to be a neutral consideration.
(e) The merits of the application
[25] The Applicant submitted that her dismissal was unfair for several reasons, including that she had:
- been told for 10 months that she was going to be dismissed but nothing came of that until she lodged her anti-bullying application with the Commission; and
- worked as professionally as she could under the undue and unreasonably stressful circumstances placed on her by the Respondent for six years.
[26] The Respondent submitted that the Applicant’s case was not highly meritorious, adding that it considered the Applicant’s substantive case to be weak and that this must weigh against the Commission exercising its discretion to grant an extension of time. In its submissions the Respondent reiterated the various conduct related issues referred to in its Form F3, adding that it would rely on those issues in any substantive hearing of the application.
[27] Having regard to the conduct related issues regarding the Applicant referred to by the Respondent and based on the limited material before the Commission, the merits of the application appear poor. This does not support a finding of the existence of exceptional circumstances.
(f) Fairness as between the person and other persons in a similar position
[28] The Applicant submitted that anyone who has applied to have an unfair dismissal case heard should be afforded that measure of justice. While I note the Applicant’s submission, it does not draw a comparison with others in a similar situation to her and overlooks the fact that the Parliament has chosen to put in place a timeframe within which such applications are to be made.
[29] The Respondent submitted that it would be unfair to employees in similar positions who had not been granted an extension of time should the Applicant be granted an extension of time.
[30] I consider this factor to be a neutral consideration.
Conclusion
[31] 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.”
[32] 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.
[33] Accordingly, Ms Amzalak’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.
Appearances:
S. Amzalak on her own behalf.
D. Woodman for the Respondent.
Hearing details:
2016.
Canberra and Melbourne (video hearing):
November 18.
1 [2016] FWC 6590
2 Ibid at [35]
3 at page 133
5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
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