Siobhan Sharkey v TRUenergy T/A TRUenergy Pty Ltd
[2012] FWA 6298
•4 SEPTEMBER 2012
[2012] FWA 6298 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Siobhan Sharkey
v
TRUenergy T/A TRUenergy Pty Ltd
(U2012/7087)
COMMISSIONER GREGORY | MELBOURNE, 4 SEPTEMBER 2012 |
Termination of employment - extension of time.
INTRODUCTION
[1] These proceeding arise from an application by Ms Siobhan Sharkey (the Applicant) concerning the termination of her employment by TRUenergy Pty Ltd (the Respondent). The application made under s.394(1) of the Fair Work Act 2009 (the Act) seeks a remedy for unfair dismissal.
[2] The Respondent has, in turn, raised a jurisdictional objection to the application, namely that it was lodged outside the 14 day time limit prescribed by s.394(2)(a) of the Act.
[3] The Applicant was dismissed from her employment on 6 February 2012. Her unfair dismissal application was lodged on 12 April 2012, 66 days after the date of her termination and 52 days after the expiry of the 14 day time limit. Section 394(2)(b) provides a discretion to Fair Work Australia to extend the period for lodging an application made under s.394. This decision accordingly deals with whether the Applicant should be allowed an extension of time to lodge her application.
[4] Directions were made for filing written submissions and witness statements. The Applicant was required to submit by 5 June 2012 with the Respondent’s submissions to be provided by 19 June 2012. The matter was heard by Fair Work Australia on 29 June 2012.
The Legislation and the Law to be applied
[5] Section 394(3) of the Act provides that Fair Work Australia may allow a further period for lodging an application under s.394(1) if it is satisfied there are “exceptional circumstances” to warrant the exercise of that discretion, taking in to account the following considerations:
“(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[6] The principles governing what constitutes “exceptional circumstances” are well established and recently set out in the decision of a Full Bench of Fair Work Australia in Nulty v. Blue Star Group Pty. Ltd 1. The Full Bench was dealing with an application for an extension of time to lodge an application under s.365 of the Act, however, the extension of time provisions in that context mirror those contained in s.394(3).
[7] The Full Bench indicated at paragraphs [13] - [15] of its decision:
“ 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.
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 to 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.
A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 2
[8] As the decision indicates s.394(3) requires consideration by Fair Work Australia of each of the matters set out in (a)-(f). “Exceptional circumstances” might also be found to exist because of a single factor or a combination of factors. I accordingly deal with the relevant circumstances and the respective submissions of the parties by reference to the considerations contained in s.394 (3).
(a) The reason for the delay
[9] The Applicant submits there are two principal reasons why the application was lodged 52 days after the 14 day time period prescribed in s.394(2)(a). Firstly, Ms Sharkey was overseas from 22 February until 4 April 2012. This trip was arranged at short notice with the assistance and encouragement of her family. The intention was to assist her get over any distress caused by her dismissal. Ms Sharkey had previously been distressed and emotional following the death of a close friend in 2011 and there were concerns she might again be similarly affected following her termination.
[10] The second and more substantive reason for the delay in lodging according to the Applicant concerns the circumstances of her termination. The Applicant submits she was told at the time it was a case of genuine redundancy resulting from an operational restructure that made her position redundant. Whilst she had doubts about whether this was the reason Ms Sharkey accepted what she had been told and, in any case, believed she was not in a position then to take issue with those reasons. It was only on return from overseas and after discussions with former work colleagues that she became aware of information that confirmed her belief she had been terminated for reasons other than those given to her at the time.
[11] As indicated, this information was derived, in particular, from discussions with former work colleagues in the week following her return from overseas. It involved people still employed by the Respondent, as well as others who have left. It involved, in particular, discussions with Ms Karen Shea, the former Director of the Government Affairs division where the Applicant had been employed. Ms Shea was terminated on the same day as the Applicant and is also pursuing action against the Respondent, although not before Fair Work Australia. In 2011 Ms Shea made a sexual harassment complaint against another senior employee and was off work for four months whilst that complaint was investigated. Ms Shea returned to work in December 2011 but, as indicated, was also terminated on 6 February 2012, ostensibly on the basis of the operational restructure that made the Government Affairs function redundant. The Applicant indicated in her evidence she and Ms Shea were friends. For example, during Ms Shea’s four month absence in 2011 she was in contact with her “every couple of days” to see how she was getting on.
[12] The Applicant submits these discussions highlighted several factors that confirmed in her mind the real reason for her termination was not redundancy, but was instead motivated by other reasons. Some of the factors that led her to this view included the apparent ongoing nature of her former role, the additional expenses apparently being incurred as tasks she previously performed were now outsourced, and the recruitment of an additional staff member.
[13] It is also submitted the Applicant’s delay in coming to a concluded view was influenced by the lack of consultation prior to her termination, and the fact she received pay in lieu of notice and left her employment immediately on 6 February 2012 instead of working out the notice period.
[14] The Applicant submits these circumstances provide a compelling basis for an extension of time. If not granted it allows the Respondent to “. . . profit from its subterfuge” 3 by enabling it to conceal the real reasons for termination until the time to lodge an unfair dismissal claim has expired.
[15] The Respondent points to number of factors in response. It emphasises the application to Fair Work Australia was actually made 52 days after the expiry of the 14 day time limit. The 14 day period had, in fact, expired even before the Applicant left to travel overseas on 22 February, 16 days after she was terminated on 6 February 2012.
[16] The Respondent also rejects the Applicant’s submission she only came to question the reasons provided for her termination at some later time. It submits she had concerns about the fairness of her dismissal at the time it occurred. However, she elected not to take issue with it then, but instead accepted the redundancy package and left Australia to travel overseas on a six week holiday.
[17] In support of this contention the Respondent points to the following aspects of the Applicant’s evidence. Firstly, she believed at the time of her termination she was being targeted because of her loyalty to Ms Shea. In this context the Respondent points to paragraph 20 of the Applicant’s witness statement:
“I was very upset that I had been told that I only had until the end of the day to pack up and leave the workplace. However, I was also very upset about the way in which Kate had been treated. When past Directors have left the Respondent I am unaware of them ever leaving the way Kate did. To my knowledge all of the past Directors who have left the company were all given a decent amount of notice before they left, did not have security guards present on the day they left, were not locked out of their computers immediately and were even offered farewell drinks by the Respondent. It is my view, that if it was a genuine redundancy then Kate would have been treated with more respect and dignity instead she was treated as if she had been fired and had done something wrong. I believe I was terminated because I was collateral damage due to my loyalty to Kate and by terminating me it would make the so-called restructure look more believable.” 4
[18] The Respondent also points to evidence the Applicant was clearly angry and upset about what had transpired at the time of her termination. She indicated in cross-examination it was not justified at the time and she had suspicions then about whether provision had actually been made to delegate her work to others. She agreed it “was pretty obvious on the day of her termination that she was going because of her loyalty to Ms Shea and that was unfair”. In a series of conversations with Ms Shea she also indicated to her she was very upset about what had occurred. This was reinforced in various discussions and conversations she had with some of her former colleagues who made contact with her in the week immediately following her termination.
[19] The Respondent also points to the fact that despite being preoccupied with her hastily arranged travel arrangements the Applicant indicated in cross-examination that prior to her departure she still made time to attend to arrangements to have her outstanding 2010/11 income tax return completed. This included making contact with her former employer to obtain a copy of the relevant group certificate. She also contacted the Respondent by email to obtain a copy of her letter of termination.
[20] In summary, the Respondent argues that despite the Applicant’s evident concern at the time and in the days following about the unfair way in which she believed she had been treated, and the opportunities she had to take action in response, she chose not to. She instead accepted the redundancy package and proceeded on the overseas holiday.
(b) Whether the person first became aware of the dismissal after it had taken effect
[21] The Applicant’s evidence indicates she was clearly aware of the dismissal at the time it occurred. She, in fact, had concerns she was going to be terminated when called in to a meeting with Linda Robertson, the Manager of Employee Relations, on the morning of the day she was actually terminated.
(c) Any action taken by the person to dispute the dismissal
[22] The Applicant acknowledges no action was taken to dispute the dismissal immediately after it occurred, or indeed in the 14 days that followed. As indicated, she submits this was primarily because she was not in the possession of information at the time that would enable her to establish the dismissal was unfair, and she was also preoccupied with her travel arrangements. The factors that confirmed, in her view, the dismissal was unfair only emerged after her return from overseas and after discussions with various former employees including, in particular, Ms Shea and Mr David Markham, the former Head of Government Affairs.
(d) Prejudice to the Employer
[23] The Applicant submits there would be no prejudice to the Respondent by granting an extension of time, apart from the consequent obligation to have to respond to the application.
[24] The Respondent submits it would suffer substantial prejudice because of another claim being pursued by Ms Shea in the Federal Court. It submits this will occur because it will likely be required to respond to factual matters in those proceedings related to those in the present matter, complicating and potentially inhibiting the way in which it is able to present that response.
(e) Merits of the Application
[25] The Applicant submits she has a strong case on the merits. As indicated, she now believes the reason given to her at the time of her dismissal was intended to disguise the real intent. The factors that support this view were confirmed in her mind following her return from overseas and after the subsequent discussions she had with current and former employees of the Respondent.
[26] The Applicant also points to the apparent failure by the Respondent to comply with its award obligations associated with the process of termination.
[27] The Applicant submits in summary “. . . it is overwhelmingly likely that a finding of the termination being harsh, unjust or unreasonable will follow.” 5
[28] The Respondent’s argues the Applicant’s case is at best “weak”. In their view the assertion she lost her job because of her association with Ms Shea, and the factors that confirm in her mind that redundancy was not the actual reason for dismissal, are based on hearsay. It also submits any weight attributed to the merits is constrained by the primary consideration an applicant should comply with prescribed time limits.
(f) Fairness as between the person and other persons in a similar position
[29] The Applicant submits another person in the same situation would also have a strong case to support an extension of time being granted. The Respondent, by contrast, submits another person in a similar position would have done something to challenge the termination prior to departing overseas, and certainly prior to the expiry of the 14 day period.
CONSIDERATION
[30] A number of decisions of Fair Work Australia and its predecessor have considered what is required to find that “exceptional circumstances” exist to justify an extension of time being granted in which to lodge an unfair dismissal claim. Reference has already been made to the decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 6and the statements of the Full Bench in that matter.
[31] The Respondent also refers to the decision of Commissioner Thatcher in Prasad v Alcatel Australia Ltd 7 which was upheld by a Full Bench on appeal and has been subsequently referred to in a number of decisions of this Tribunal. At paragraph [13] of that decision the Commissioner states the requirement to comply with the prescribed time limit is not a mere technical problem but a substantive legislative provision.
“ It should be clear from the case law I have cited that the making of a s.394 application out of time should not be regarded as presenting the applicant with some mere technical problem. Rather s.394(2) is a substantive legislative provision which represent the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the period may often result in a good cause of action being defeated. The limitation period in s.394(2) is a relatively short period of 14 days, underlining the legislature’s intention that applications under s.394 are dealt with expeditiously.” 8
[32] These decisions confirm it is expected an applicant will proceed within the statutory timeframe unless there are exceptional circumstances, taking into consideration the matters specified in s.394(3)(a) to (e), to justify an exercise of the discretion to grant an extension of time. I now turn to consider whether these circumstances exist in the present matter taking into account each of the considerations in s. 394(3)(a) to (e) and the submissions made by the Applicant and the Respondent about the weight that should attach to each.
(a) Reason for the Delay
[33] The Applicant submits there are two principal reasons why an unfair dismissal application was not lodged within the 14 day time period. The first concerns her impending departure overseas, 16 days after the date of her dismissal.
[34] This trip was proposed at short notice by her family following her termination. It was clearly well intentioned, being designed to take her mind off what had occurred, and to avoid any recurrence of the emotional distress she experienced in 2011, following the death of a close friend.
[35] Clearly, the Applicant was required to turn her attention to the arrangements required for her unexpected departure on this six week trip. However, she did not actually leave Australia until 22 February, two days after the 14 day period had expired. Her evidence in cross-examination also indicated, despite her impending departure, she had discussions with several former work colleagues about what had occurred, and made a point of attending to complete an outstanding tax return. This required her to make contact with her former employer to obtain the necessary group certificate. She was also in contact with the Respondent again by email to obtain a copy of her termination letter, which contained details of the redundancy payments and the payout of accrued entitlements.
[36] I am not persuaded this reason for the delay in lodging an application, of itself, constitutes an “exceptional circumstance” that warrants an exercise of the discretion to extend the 14 day time period. In my view the Applicant has demonstrated, despite her impending and unexpected departure overseas, she had both the time and opportunity to make an application within the prescribed 14 day period.
[37] The second, and in the Applicant’s submission, most substantial reason for the delay concerns the circumstances of her termination. It is submitted she was told she had been made redundant because of an operational restructure, in circumstances where she believed she did not have the ability or the opportunity at the time to question or take issue with what she had been told. It was only after the passage of time, and understandings gained from discussions with others, that she formed a clear view what she had been told initially about the reasons for her termination, and why it occurred, were actually intended to disguise the real reason.
[38] Clearly, in some instances an employer may try to disguise or blur the actual reason why a decision is taken to terminate an employee, although it is not clear to me this has in fact occurred in the present matter. In such cases the actual reason may only come to light or be capable of being established with the passage of time. In some circumstances this might come within the realm of the “exceptional circumstances” that warrant an extension of time being granted.
[39] However, in the present matter the circumstances are somewhat different. I have no reason to doubt the Applicant, following her return from overseas, did obtain information to support her view that the reason given at the time of termination was not the actual reason why it occurred. However, I am also satisfied the Applicant already had concerns at the time the termination occurred. She was angry and upset. Those are entirely understandable reactions from someone dismissed unexpectedly. But the evidence indicates she was more than just angry and upset. It suggests she believed then her dismissal was unfair; that she was caught up in something not directly related to her own work performance and was, to use her own words, “collateral damage” for action directed at another intended target. She also indicated in her witness statement, referring to Ms Shea, “It was obvious to me that they wanted to find a way to get rid of her and that I was about to be caught up in it because of my loyalty to her.” 9
[40] She was clearly aggrieved by what happened at the time of her termination; it was evident to her then it was unfair, even though the evidence she believed to support that view only emerged at some later point. An employee in that situation wanting to take issue with their dismissal would ordinarily be expected to pursue any remedy they might have in a timely fashion.
[41] In setting a fourteen day time period Parliament intends an aggrieved employee act expeditiously unless there are exceptional circumstances that provide a reason to extend that period. Again, for the reasons indicated I am not satisfied this second ground advanced by the Applicant for the delay in lodging provides justification to exercise the discretion to extend the time period. In addition, my view does not change when taken together with the fact the Applicant went overseas for a period of time after being terminated. Ms Sharkey remained in Australia during the 14 day period immediately following her dismissal and did not leave the country until two days after that period had concluded. She had a number of discussions with former colleagues in that period and believed it was unfair she had been dismissed. She also attended to other personal matters. Nothing definitively stood in the way of her lodging an unfair dismissal claim within the prescribed time period.
(b) Whether the person first became aware of the dismissal after it had taken effect
[42] The Applicant was clearly aware of the dismissal at the time it occurred and so was not precluded on this ground from lodging an unfair dismissal application during the 14 day period.
(c) Any action taken by the person to dispute the dismissal
[43] The Applicant did not take action to dispute the circumstances of her termination immediately after it occurred, or within the fourteen day time period, for the reasons already canvassed and dealt with in considering the reasons for the delay.
(d) Prejudice to the Employer (including prejudice caused by the delay)
[44] In terms of prejudice to the employer the Respondent suggested it would suffer prejudice if this matter were to proceed because it was defending another related claim in the Federal Court. This situation could cause it to have to proceed carefully and potentially inhibit the way in which it presented that response. I have attached little weight to this submission. An applicant should not be prevented from pursuing a remedy that might be available simply because it would complicate matters for the Respondent in a separate proceeding elsewhere involving another Applicant
(e ) The merits of the Application
[45] Both parties made submissions about the respective merits of the application. The Applicant submits she has a strong case and maintains an employer should not be able to benefit by concealing the real reason for termination until after the statutory time period for lodging an application has passed. The Respondent argues the Applicant’s case, viewed on the merits, is at best weak. It considers the factors the Applicant relies on, following her return from overseas, are essentially based on little more than hearsay. In the absence of detailed evidence I am not in a position to make findings of fact about what are clearly contested issues. In terms of how the merits of an application should be considered when determining an application for an extension of time I note this issue has been considered by this Tribunal and its predecessor. In Kyvelos v. Champion Socks Pty Limited 10a Full Bench of the Australian Industrial Relations Commission said:
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 11
The Full Bench continued:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 12
[46] I am accordingly satisfied the respective merits of the application based on the submissions in this matter are accordingly a neutral consideration in terms of whether I should exercise the discretion available in s.394(3).
(f) Fairness as between the person and others in a similar position
[47] In terms of fairness between others this was seen to be of limited relevance in the present matter. The Applicant submits another person in a similar situation would have a strong case to support an extension of time. The Respondent submits a person in a similar position to the Applicant would be expected to have lodged an application within the 14 day period.
[48] In conclusion I am not satisfied based on consideration of each of the matters contained in s.394(3) that exceptional circumstances exist to warrant an exercise of the discretion to provide a further period beyond fourteen days to make an application pursuant to s.394(1). The application is dismissed.
COMMISSIONER
Appearances:
R. Miller of Counsel for the Applicant
P. O’Grady, solicitorfor TRUenergy T/A Truenergy Pty Ltd
Hearing details:
2012
Melbourne:
29 June.
1 [2011] FWAFB 975
2 Ibid [13] - [15]
3 Transcript PN17
4 Exhibit M1, paragraph 20
5 Exhibit M2, paragraph 24
6 [2011] FWAFB 975
7 [2010] FWA 7804
8 Ibid [13]
9 Exhibit M1, paragraph 8
10 Print T2421
11 Ibid [14]
12 Ibid [14]
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