Teagan Hughes v Peel Youth Services T/A Peel Youth Services

[2016] FWC 3949

[2016] FWC 3949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teagan Hughes
v
Peel Youth Services T/A Peel Youth Services
(U2016/1755)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 23 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Hughes was employed as a Casual Facilitator responsible for mentoring young pregnant women, young parents and their children. Ms Hughes was dismissed from her employment by Peel Youth Services on 15 March 2016 for reasons of misconduct, including breaching policies and procedures and the Code of Conduct and failing to role model best practice in the workplace.

[2] Ms Hughes alleged the termination of her employment by Peel Youth Services was unfair as she had not been afforded a reasonable opportunity to respond to the allegations of misconduct.

[3] Ms Hughes’ unfair dismissal application, lodged on 14 April 2016, was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[4] Peel Youth Services filed a response to Ms Hughes’ application on 10 May 2016 objecting to the application on the basis that it was out of time.

[5] Ms Hughes attended a jurisdictional hearing on 12 May 2016, by video conference, and gave oral evidence on her own behalf in addition to her written submission.

[6] Ms Westbrook, Executive Officer of Peel Youth Services appeared and gave evidence on behalf of the Respondent.

[7] This decision is about whether the Commission should allow Ms Hughes a further period for lodgement of her application for an unfair dismissal remedy.

[8] The Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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.” [Endnotes not reproduced]

[11] There was no factual dispute that Ms Hughes had filed her application out of time.

s.394(3)(a) the reason for the delay

[12] Ms Hughes’ application was filed 30 days after the date of her dismissal. Ms Hughes must provide a credible reason for the delay in making the unfair dismissal application. 2

[13] Ms Hughes must provide a credible reason for the whole of the period that the application was delayed. 3 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.4

[14] In accordance with the principles summarised in paragraph [13] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 5 April 2016 to 15 April 2016. However the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and whether that reason constitutes exceptional circumstances.

[15] Ms Hughes’ evidence was that she had made inquiries with the Commission on the day she was dismissed. 5 Ms Hughes completed the online questionnaire around 11:00am that morning to see if she was eligible to lodge an unfair dismissal application, however she did not proceed with the application at the time.

[16] Ms Hughes says she was struggling at home alone with five children under the age of seven and was terribly upset after being dismissed, she was anxious about leaving the home until her husband, who is working fly in fly out, returned from working away. Ms Hughes’ husband returned on 17 March 2016.

[17] Ms Hughes’ evidence was that she was caught off guard by the dismissal and as she had just bought a new house and a new car she became very distressed.

[18] It is understandable, given the circumstances, that Ms Hughes felt distressed and upset however the reasons provided by Ms Hughes are not unusual, special or uncommon. I am not satisfied that Ms Hughes has provided exceptional circumstances for the whole of the delay. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[19] Ms Hughes was notified of her dismissal on the day it took effect. 6

[20] Ms Hughes signed an exit declaration 7 and was provided with a letter of termination on the day her dismissal took effect.8

[21] Ms Hughes had the full 21 days from the date of termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[22] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 9

[23] Ms Hughes says she made inquiries with the Commission on the day of her dismissal. Ms Hughes completed the online questionnaire to determine if she was eligible to lodge an unfair dismissal application. 10

[24] Ms Hughes’ oral evidence was that she had sent a letter to the Peel Youth Services’ Board of Management in early April 2016 and was hoping they would do something about her termination. Ms Hughes’ submissions included a copy of the email correspondence which identifies the date of her correspondence as 20 April 2016. 11 Ms Hughes also submitted a copy of the correspondence from Ms Vati, Chairperson, to Ms Hughes in which it states the Board had received her letter by email on 20 April 2016.12 The correspondence with the Board took place after Ms Hughes had lodged her unfair dismissal application.

[25] Although Ms Hughes made inquiries with the Commission on the date of her dismissal, she took no further action to dispute her dismissal until after she had lodged her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[26] Prejudice to the employer will go against the granting of an extension of time. There were no submissions made relevant to this criterion. I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[27] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 13 it said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[28] Peel Youth Services submits Ms Hughes had a history of performance and conduct issues and on a number of occasions had been counselled and issued with warnings for her conduct in the workplace. Specifically, the issues of concern included Ms Hughes’ frequent use of inappropriate language, and inappropriate sexual topics in a client setting. 14

[29] Ms Westbrook submits in February 2016, Ms Hughes had been counselled for describing a co-worker a “f….n c..t” during a conversation with a Work Placement student. During the meeting in which Ms Hughes received a verbal warning Ms Westbrook submits Ms Hughes’ response was to state that one of the employees was a “c..t” and that she hated the co-workers “f….n guts”. Ms Westbrook submits that Ms Hughes was offered counselling and declined to participate. 15

[30] Ms Westbrook submitted that on the 15 March 2016 she received two complaints stating that Ms Hughes had called her daughter a “c..t” in front of a number of young mothers in a group room. 16

[31] MsHughes did not deny the conduct allegations made against her on 15 March 2016, in fact to Ms Hughes credit she admitted to the conduct alleged and says she was willing to take full responsibility for her actions. Ms Hughes’ submission was that the process by which she was terminated was unfair and unreasonable. Ms Hughes submits she was not afforded a reasonable opportunity to respond to the allegations made which denied her the opportunity to be afforded procedural fairness. 17

[32] Ms Hughes’ submission was that she was not aware of a number of the allegations that had been made against her until she arrived home and read the letter outlining the reasons for her dismissal. 18

[33] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 19 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[34] I found Ms Hughes to be an honest and credible witness however, I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[35] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 20 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, 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.”

[36] There were no submissions that there is, or has been, any persons in a similar position to Ms Hughes. I find the criterion to be neutral.

Conclusion

[37] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Ms Hughes’ application to be made. Ms Hughes has not provided a reasonable explanation for the whole of the delay. Ms Hughes’ application for an extension of time is dismissed and her unfair dismissal application is therefore dismissed.

[38] An order 21 dismissing Ms Hughes’ application will accompany this decision.

COMMISSIONER

Appearances:

Ms T Hughes on her own behalf.

Ms B Westbrook for Peel Youth Services.

Hearing details:

2016.

Melbourne and Perth (video hearing):

May 12.

 1   [2011] FWAFB 975.

 2   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 4   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 5   Exhibit A1.

 6   Exhibit A1.

 7   Exhibit A9.

 8   Exhibit A8.

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 10   Exhibit A1.

 11   Exhibit A4.

 12   Exhibit A3.

 13   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 14   Exhibit R2.

 15   Exhibit R2.

 16   Exhibit R2

 17   Exhibit A1

 18   Exhibit A1.

 19   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 20   [2015] FWC 8885 at [29].

 21   PR581761.

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<Price code C, PR581760>