Stuart Humphrey v Catholic Education, Archdiocese of Brisbane
[2018] FWC 4111
•11 JULY 2018
| [2018] FWC 4111 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Humphrey
v
Catholic Education, Archdiocese of Brisbane
(U2018/2637)
DEPUTY PRESIDENT DEAN | SYDNEY, 11 JULY 2018 |
Application for unfair dismissal remedy – extension of time.
[1] On 14 March 2018 Mr Stuart Humphrey made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009. Mr Humphrey claims that he was employed by Catholic Education, Archdiocese of Brisbane (Catholic Education) from approximately February 2007.
[2] In his application for unfair dismissal remedy, Mr Humphrey stated that he was notified of his dismissal “initially on 25 January 2018” and he “then started the complaints process as per BCE policy. I received a letter from BCE [Catholic Education] on 1/03/2018 dismissing my unfair dismissal complaint and confirming my unemployment with St. Brigids Catholic Primary School on the 1/3/18.”
[3] In response to Mr Humphrey’s contention that he was an employee who had been dismissed, Catholic Education argued that Mr Humphrey “had at all times been a private music tutor, operating as a separate business, who contracted directly with parents of children at the school to undertake private music lessons for those children.”
[4] Catholic Education asserted that Mr Humphrey was not an employee, there was no dismissal and his application had been made more than 21 days after the relationship between Catholic Education and Mr Humphrey ended on 1 December 2017.
[5] Mr Humphrey on the other hand argued that his application was made within the 21 day time frame prescribed by the Act, as he only received notification of his dismissal on 28 February 2018, 14 days prior to making this application.
[6] This decision only deals with the issues as to the date the relationship between Mr Humphrey and Catholic Education ended and depending on this date, whether I should extend time for Mr Humphrey.
[7] If the relationship ended on 28 February 2018, Mr Humphrey’s application is within time. If the relationship ended on 25 January 2018 or 1 December 2017, as contended by Catholic Education, Mr Humphrey’s application is either 27 days out of time, or some 82 days out of time.
[8] The matter was listed for hearing on 25 June 2018. At the hearing, Mr Humphrey appeared on his own behalf and Mr Colin O’Neill with Ms Michelle Harvey appeared for Catholic Education.
The contractual relationship between the parties
[9] The parties entered into a Deed of Agreement (the Agreement) dated 24 January 2017 which set out the arrangements between them and provided, at clause 7.1, that the Agreement would be effective for the period 24 January 2017 to 1 December 2017. The Agreement stipulated that it “may be extended by completion of a new deed or written agreement signed by the signatories to this Agreement.”
[10] The Agreement relates to the use of school facilities by non-school related organisations. Its recitals include the following:
“b) Stuart Humphrey (Mr Huphrey) desires to utilise facilities at the above premises for the purpose of private guitar lessons for children. These lessons will only be open to students enrolled at St Brigid’s Primary School;
c) Mr Humphrey will contract with the parents of individual children of the school, to undertake private guitar lessons for children on Corporation property on the conditions and terms as described herein.”
[11] The Agreement goes on to provide the arrangements by which Mr Humphrey would be able to utilise the school facilities, which were defined as “instrumental music room in the Eco-Enquiry at St Brigid’s Primary School as available”.
[12] Other clauses in the Agreement provided that:
a. access to the facilities was only to be between 8:00 am and 3:00 pm on Fridays during school term;
b. the only equipment Mr Humphrey was allowed to use was the school’s tables and chairs;
c. Mr Humphrey indemnified Catholic Education and the Principal of the school in relation to any loss, action, claim etc arising from the performance or non-performance of any obligation under the Agreement;
d. Mr Humphrey would take out his own public liability insurance, personal accident insurance and workers compensation insurance; and
e. Mr Humphrey would pay a hire fee for the use of the facilities, being 10% of the fees he charged parents for music lessons conducted at the school, with invoices generated monthly.
[13] There was no dispute that the only document evidencing the contractual relationship between the parties was the Agreement.
When did the relationship between the parties end?
[14] On 25 January 2018, Mr David Sewell, the Principal of the school, sent Mr Humphrey an email which read:
“Dear Stuart,
Your email of 23 January 2018 to Maryanne Sandstrom has been brought to my attention.
Given your behaviour at the school in the latter part of 2017, I have determined not to enter into a Deed of Agreement to permit you to offer music instruction at St Brigid’s in 2018.”
[15] In or about February 2018 Mr Humphrey wrote an extensive letter to Catholic Education complaining about his treatment by Mr Sewell and raising an issue of unfair dismissal.
[16] A written response from Mr Neville MacDonald (Senior Leader – School Operations of Catholic Education) dated 26 February 2018 was sent to Mr Humphrey. The letter rejected Mr Humphrey’s claim of any bullying or harassment by Mr Sewell towards him and indicated that “as you were not an employee of either Brisbane Catholic Education or St Brigid’s School you were not unfairly dismissed when a room was not made available for you at the school for you to conduct private lessons in 2018.”
[17] Mr Humphrey submitted that the relationship ended on 28 February 2018, when he received the written response from Mr McDonald. Mr Humphrey relied on clause 8 of the Agreement which states:
“8. NOTICES
8.1 IN WRITING
Any notice, claim demand or other communication (“notice”) under or in connection with this Agreement, must be in writing and may be given or posted by registered letter or sent by facsimile transmission to:-
(a) The addresses of the parties set out on the execution page of this Agreement; or
(b) Another address notified by a party to the [other/others] by not less than seven days’ notice given in accordance with this clause.”
[18] Mr Humphrey submitted that the email of 25 January 2018 was not an acceptable form of communication as clause 8 of the Agreement does not provide for communication via email.
[19] Mr Humphrey gave evidence that in practice, a new agreement was generally entered into after he had commenced work at the start of the first term in each year. He assumed that the same process would take place for the 2018 school year until he received the email from Mr Sewell on 25 January 2018.
[20] Catholic Education asserted that the relationship between the parties ended on 1 December 2017. It submitted that under clause 7.1 of the Agreement, the arrangement in its entirety concluded on this date and any extension was subject to the parties entering into a new agreement.
[21] Catholic Education submitted that, if the relationship extended beyond 1 December 2017, it ended on 25 January 2018 when Mr Sewell sent the email to Mr Humphrey notifying him that no new agreement would be entered into.
[22] As the Agreement entered into by the parties clearly specifies that the Agreement ends on 1 December 2017 and sets out the process for renewing the Agreement, I find that the relationship ended on 1 December 2017. The Agreement clearly and unambiguously provided that the arrangement between the parties ended on this date, and set out a process by which a new Agreement would be entered into. This process did not take place.
[23] If I were wrong about the relationship ending on 1 December 2017, then I would have found that the relationship ended on 25 January 2018 when Mr Sewell sent an email to Mr Humphrey stating that no new Agreement would be entered into for 2018. Mr Humphrey conceded during the hearing that he was clear that this email meant no new Agreement would be entered into, and that the relationship between the parties had clearly ended by this date.
[24] Given my finding above, Mr Humphrey’s application filed on 14 March 2018 has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Humphrey should be granted an extension of time.
Extension of time
[25] Section 394(3) of the Act provides:
(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 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.
[26] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Humphrey.
[27] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said:
“[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.”
[28] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[29] Mr Humphrey submitted that there are two reasons for the delay in making his application, the first being that he only became aware of the dismissal after it took effect. He submitted:
“1. The first exceptional circumstance arose because I only first became aware of the dismissal after it had taken effect. The date of the notification of my dismissal was on 25 January. As per my points on page 2 above, I now realize that this email did not have any authority to dismiss myself and indeed was invalid according to the terms of the Deed. Recently since 2 February 2018, I have been severely depressed, dealing with a family bereavement and not thinking clearly. However, be that as it may, I received this notification via email from the principal of St Brigids Catholic Primary School, at 5.00pm on 25 January (attached and marked “Document C”). The email stated that I was dismissed for the whole of the year of 2018. From the 1 January 2018 to the 25 January 2018 is 25 days, making it impossible for myself to file my application before the 21 day deadline. Further to the scope of this response, my termination at the school was harsh, unjust and unreasonable. The normal disciplinary protocol at BCE was not followed, if indeed my behavior (sic) in the latter part of 2017 was even a concern. I was given no opportunity to respond to the reason for termination. I was summarily terminated without even a verbal conversation with my employer via an unvalid (sic) form of communication.
In 2017 there was no such indication that I was going to be dismissed in 2018. My teaching at St Brigids has remained unblemished since I started teaching here, over ten years ago. I have been held in very high regard by both the faculty and students of the school for the whole of this period. If, as the unvalid (sic) email states “that my behavior (sic) at the school in the latter part of 2017” is the reason for my dismissal, then according to BCE policy, the issue of my “behavior” (sic) should have been raised first between myself and BCE staff, at the time of it occurring in 2017. This was never done and I strongly, strongly dispute that any such “behavior” (sic) even occurred in 2017. I should have been given a chance to then rectify this “behavior” (sic).”
[30] The second reason Mr Humphrey relies on for the delay in making his application concerns the death of a close family member on 2 February 2018. Mr Humphrey submitted that he was significantly affected by the sudden death of his father-in-law and became severely depressed and this impacted his capacity to make the application.
[31] Catholic Education submitted that the Agreement explicitly provided that it would conclude on 1 December 2017 and it confirmed on 25 January 2018 that there was no intention to enter into a new agreement.
[32] Catholic Education also submitted that Mr Humphrey provided no medical evidence of his incapacity. Further, he took steps to lodge a complaint with Catholic Education about Mr Sewell, and at the same time disputed what he claimed to be an unfair dismissal in the period he claims he was incapacitated to the point that he was unable to make this application.
[33] While I am sympathetic to Mr Humphrey’s circumstances, there was no satisfactory explanation as to why he could not lodge his unfair dismissal application within the statutory time limit. His conduct in disputing the alleged unfair dismissal directly with Catholic Education following the death of his father-in-law indicates that he had sufficient capacity to lodge his application during this period. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[34] Mr Humphrey initially submitted that he first became aware of the dismissal on 25 January 2018. He later stated that he became aware of the dismissal on 28 February 2018. The Agreement entered into by the parties clearly states that the Agreement ends on 1 December 2017. Mr Humphrey gave evidence that he signed that Agreement and agreed to its terms on 24 February 2017. He also gave evidence that he did receive the 25 January email on that date.
[35] If Mr Humphrey was not clear that the relationship had ended on 1 December 2017, then he was certainly aware of it by 25 January 2018, given his concession during the hearing that he understood he would not be offered a new agreement on receipt of the email of 25 January 2018. This weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[36] Mr Humphrey took steps to dispute what he says was a dismissal by lodging an internal complaint with Catholic Education upon receipt of the 25 January 2018 email from Mr Sewell. This weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[37] Catholic Education submitted that it would be significantly prejudiced if an extension of time were granted to Mr Humphrey. It submitted that if an extension of time is granted there is no evidence and material put forward to establish that an employment relationship existed, the application is without foundation and has no chance of success.
[38] Mr Humphrey submitted that there is no prejudice to Catholic Education.
[39] I do not consider that Catholic Education would be prejudiced if time were extended, and this weighs in favour of a finding that there are exceptional circumstances.
The merits of the application
[40] For the purpose of determining whether to grant an extension of time for Mr Humphrey to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[41] There is another significant jurisdictional issue to be determined if this application proceeds further. According to Catholic Education, the agreement in place was entered into on a yearly basis for Catholic Education to provide Mr Humphrey with a room at the school to conduct private music lessons and the school in turn received 10% commission on the fees he received. It maintained that there was no employment relationship between Catholic Education and Mr Humphrey.
[42] Mr Humphrey submitted that the relationship between himself and Catholic Education should have been properly characterised as an employment relationship. He submitted that as he worked for the school for 10 years and the school was heavily involved in the payment for music lessons he conducted.
[43] If Catholic Education is correct, Mr Humphrey’s application will not proceed as he is not a person protected from unfair dismissal within the meaning of s.382 of the Act.
[44] While I have not made a final determination of the merits in this matter, in my view, based on the material before me, Mr Humphrey does not have a strong case. I consider that this weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[45] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[46] I do not consider that there are other relevant persons in a similar position to Mr Humphrey, and I therefore find it to be a neutral consideration.
Conclusion
[47] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Mr Humphrey are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[48] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
S. Humphrey on his own behalf.
C. O’Neill with M. Harvey for Catholic Education, Archdiocese of Brisbane.
Hearing details:
2018.
Sydney:
June 25.
Printed by authority of the Commonwealth Government Printer
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1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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