Suzy Connard v Complete Education and Touring Australia P/L

[2016] FWC 3089

[2016] FWC 3089

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Suzy Connard
v
Complete Education and Touring Australia P/L
(U2016/5593)

COMMISSIONER LEE MELBOURNE, 7 JULY 2016

Application for relief from unfair dismissal - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 22 April 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Suzy Connard (the Applicant) claims that she was unfairly dismissed from her employment with Complete Education and Touring Australia Pty Ltd (the Respondent). The application was lodged by the Applicant on 22 March 2016.

[2] The Respondent objected to the application on two grounds. One that the application was made outside the statutory time limit and two that the Applicant was not an employee and was a contractor.

[3] The matter was listed for Extension of Time Conference/Hearing before me on 22 April 2016. There was sworn evidence provided by both the Applicant and by Mr Andrew Gray on behalf of the Respondent. I have had regard to this evidence as well as the materials that were filed prior to the hearing.

[4] There is some controversy as to what the date of the effective dismissal is and I will deal with that as a preliminary matter before dealing with the issue of the various criteria in s.394(3) of the Act.

[5] The first issue I will deal with is when the termination took effect. I note that in considering this I am alive to the fact that the Respondent has submitted that there was no termination in an employment relationship sense because his primary submission is that the Applicant is a contractor. However, assuming that the Applicant is an employee as is put by the Applicant there is a question to be determined as to what the effective date of termination of employment is.

[6] In the Applicant’s Form F2 – Unfair Dismissal Application, the Applicant submitted that she was notified of the dismissal on 13 January 2016 and that the dismissal took effect on the same day. That is consistent with the email that was provided as part of the materials from the Applicant and that was referred to in the proceedings. It is dated Wednesday 13 January 2016 at 9.41 pm. The subject is “Termination of services”. It reads as follows:

“Dear Suzy and Andrew, regretfully we need to terminate your services with CETA for guardianship duties effective immediately. This has been brought about by your non-compliance to provide student reports to CETA, lack of response to email and test information requests from CETA principals and staff, non-performance for students assigned to you that has resulted in CETA losing business or parents requesting another guardian (which has tarnished our reputation with leading private schools) and complaints from parents of tardy service by arriving late to pick up students. In these circumstances it is untenable for CETA to have you work as guardians from this point on. We will make arrangements to pick up the Tarago vehicle.”

[7] The Applicant gave evidence that she believes the termination took effect on 1 March 2016, the basis for this is that this was the date upon which the Applicant received the final payment for her services after a period of negotiation with Mr Gray. The Applicant gave evidence that notwithstanding the letter of 13 January 2016 that she continued to assist with students as per her previous role, after that date. Mr Gray has been clear in his evidence that from his point of view the employment relationship, indeed if there was one given his position on the Applicant being a contractor, but he maintains that whatever the case that that relationship ceased on 13 January 2016.

[8] Having considered the material in the matter I reach the conclusion that while the Applicant may have performed some work after 13 January 2016, she did so apparently out of a sense of obligation to those that she was dealing with and she was not engaged at that point by the employer to do so. The terms of the letter of 13 January 2016 are absolutely, abundantly clear. They are absolutely clear in their terms that the employment relationship or contractual relationship as the case might be, assuming an employment relationship, had come to an end at that point.

[9] Further to that the fact that the Applicant had her husband contact the Fair Work Commission (the Commission) on 12 February 2016 to enquire and obtain forms for an unfair dismissal application at that time suggests that the Applicant was well aware that the employment relationship had come to an end. I am satisfied that the termination of employment, assuming that there was an employment relationship, was on 13 January 2016.

[10] That being the case, the application was lodged on 22 March and it is not contested that that means the application is 50 days out of time. In dealing with whether or not I should grant an extension of time I need to apply the relevant law. It is clear the application must be made within 21 days after the dismissal took effect.

[11] Section 394 (3) of the Act sets out the power of the Commission to allow a further period for an application to be made under subsection s.394 (1) if the Commission is satisfied there are exceptional circumstances taking into account the various factors in s.394 (3) which are as follows:

(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.

[12] As to the approach that is to be taken to the interpretation of what “exceptional circumstances” mean, the Full Bench in Nulty v Blue Star Group (Nulty) 1 canvassed the meaning of exceptional circumstances as being and I will only quote from this in part, it has its ordinary meaning but it requires consideration of all the circumstances. To be exceptional circumstances it 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 circumstances if they are “regularly, or routinely, or normally encountered”. The Full Bench in Nulty made the following observation:

“... 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.” 2

[13] I will now turn to the reason for the delay. The Applicant submitted that a contributing factor to the delay was that she was a full-time student and this had had an impact on her ability to file the application. The fact that the Applicant is a full-time student is far from an exceptional circumstance. It is not an acceptable reason for the delay.

[14] Beyond that the Applicant claimed that she was concerned that the Respondent was using the final payment as leverage in the matter, and that if she lodged an application prior to receiving that payment then that would jeopardise the payment being made. I am not satisfied that this is an acceptable reason or exceptional. Many employees dispute final payments upon termination. It is not an exceptional circumstance. If I am wrong about that, it does not explain why there was a delay from 1 March 2016 to 22 March 2016 in filing the application. The Applicant had application forms, on her own evidence, sometime after 12 February 2016. In any case that would have still been outside of the relevant time period, but nevertheless the Applicant did not lodge them at or anywhere near that time. In short, I am not satisfied on the evidence that there is an acceptable reason for the delay.

[15] In terms of whether the person first became aware of the dismissal after it had taken effect, the evidence is clear in my view that the Applicant was aware of the dismissal upon receipt of the letter of termination on 13 January 2016. This is a neutral consideration.

[16] In terms of action taken by the person to dispute the dismissal, there is no particular evidence that the Applicant took any action to contest the dismissal. There were certainly discussions apparent on the evidence between the parties about what the quantum of the final payment would be, but that did not amount to any particular action taken to dispute the dismissal and I did not see, other than the reference to the fact that there was a call to the Commission and the obtaining of some forms, there was no other action that I can discern which would give weight to that factor as a consideration.

[17] In terms of prejudice to the employer, the Respondent submitted but did not provide any evidence to suggest there was prejudice to them as a result of the delay. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.  3 Overall that is a neutral consideration.

[18] In terms of the merits of the application there is a contest clearly about significant matters. First, whether or not there was an employment relationship or not. The facts in this regard are not entirely clear, and there is obviously then the competing viewpoints about the alleged poor performance; that is the basis upon which the termination was made from the Respondent’s point of view. There is a contest from the Applicant about that and simply put, in the absence of a full hearing into the merits of an application the Commission can at best find the application is not without merit, and in that context this should be treated as a neutral factor in determining whether exceptional circumstances existed and that is the approach I take in this matter. I am not in a position to determine the merits of the matter. I am certainly, having considered the material that has been filed, not in a position to say that it is a particularly strong case nor a particularly weak one. In that context it is not something that weighs in favour or against granting the application.

[19] In terms of the final criteria, fairness between the person and other persons in a similar position, no particular submissions were made on that point and I do not consider anything in particular arises.

[20] I am not satisfied that there is an acceptable reason for the delay and that weighs against granting an extension. When the Applicant became aware of her dismissal and prejudice to the employer are neutral considerations. There is no evidence that the Applicant took action to dispute her dismissal and that is also not a factor that weighs in favour of granting the application to extend.

[21] Taking into account all of the relevant factors I am not satisfied that there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy and the application is dismissed.

[22] An order giving effect to this decision has previously been published in PR579428.

COMMISSIONER

Appearances:

S Connard on her own behalf for the Applicant

A Gray for the Respondent

Hearing details:

2016.

Melbourne.

22 April.

Final written submissions:

20 April 2016

 1   Nulty v Blue Star Group (2011) 203 IR 1

 2 (2011) 203 IR 1 [13]

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 , [299-300]

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