Theresa Edmonds v Catholic Education Western Australia Limited
[2021] FWC 3369
•17 JUNE 2021
| [2021] FWC 3369 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Theresa Edmonds
v
Catholic Education Western Australia Limited
(U2021/3540)
COMMISSIONER PLATT | ADELAIDE, 17 JUNE 2021 |
Application for an unfair dismissal remedy – request for an extension of time – application granted.
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Ms Theresa Edmonds a further period for her unfair dismissal application to be made against Catholic Education Western Australia Limited (the Respondent).
Background
[3] Ms Edmonds has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with the Respondent, which her form F2 Unfair Dismissal Application advised took effect on 1 April 2021.
[4] The application was lodged on 23 April 2021 by her (then) representative on behalf of Ms Edmonds.
[5] The application recognised that it was made beyond 21 days from the date of dismissal.
[6] On 28 April 2021, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 3 June 2021. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Ms Edmonds was directed to provide a statement concerning the extension of time and any documents to be relied upon by 5 May 2021 (and serve same on the Respondent).
[7] On 5 May 2021, the Respondent lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time. A submission was annexed to their Form F3 in relation to the extension of time issue.
[8] On 5 May 2021, I received submissions and witness statements from the Applicant’s (then) representative, in relation to the extension of time issue.
[9] The Respondent provided further submissions in relation to the extension of time issue on 11 May 2021.
[10] At 11.18 am on 2 June 2021, the Applicant advised that she had dismissed her Representative, as she believed that the representative was in part responsible for her application being lodged out of time.
[11] A Hearing was conducted by way of telephone conference on 3 June 2021. A sound file record of the telephone conference was kept. Ms Edmonds was represented by her brother, Mr Byrne, whilst Mr Seymour (of counsel) represented the Respondent. Mr Seymour sought permission to represent the Respondent on the basis of s.596(2)(a) – complexity and efficiency. The Applicant did not oppose the application, and permission was granted. The hearing was conducted by way of Determinative Conference
[12] Upon examination of Ms Edmonds, it became clear that her oral evidence was not consistent with the written statements and submissions provided by her previous representative.
[13] As a result of the inconsistencies between her written and oral evidence, and her recent addition of representative error as a ground for extension of time, I adjourned the Hearing until 16 June 2021 to provide the Applicant further time to amend her witness statement and submissions, and to arrange alternative representation if she so desired.
[14] Amended directions were issued which required the Applicant to provide her amended submissions and witness statement by 10 June 2021, with the Respondent given until 15 June 2021 to provide any further material in reply to the Applicant’s amendments.
Hearing
[15] A further Hearing was conducted by way of telephone conference on 16 June 2021. A sound file record of the telephone conference was kept. Ms Claudia Lewin (of counsel) sought permission to represent Ms Edmonds (with Mr Byrne present as a support person), and Mr Ian Curlewis sought permission to represent the Respondent, both on the basis of s.596(2)(a) – complexity and efficiency. Neither party opposed the other being represented, and permission was granted.
[16] Ms Edmonds submitted a revised statement 3 and gave evidence. Her evidence was largely consistent with her statement, with the additional information arising from examination and cross-examination being:
• She did not recall receiving a letter from the Respondent dated 6 December 2019 concerning a change in the identity of her employer.
• Her mother was diagnosed with a serious illness on 8 May 2021.
• She downloaded her payslips which contained the Respondent’s ABN.
• She lodged her own tax return.
[17] Ms Lewin generally relied on the Applicant’s written submissions. Her position is summarised as follows:
• Until 31 December 2019, the Applicant was employed by the Roman Catholic Archbishop of Perth.
• From 1 January 2020, until her dismissal on 1 April 2021, the Applicant was employed by the Respondent.
• The Roman Catholic Archbishop of Perth is not a national system employer, and therefore is not covered by the Act,and rather is covered by the Industrial Relations Act 1979 (WA) (IR Act).
• Upon her dismissal, the Applicant sought advice from the Independent Education Union (IEU), who informed her of the 21-day time limit for unfair dismissal applications under the Act.
• On 9 April 2021, the Applicant sought advice from her initial representative, who told her that it was important to establish who her employer was in order to understand which jurisdiction to file her application in.
• On 14 April 2021, the Applicant provided her initial representative a copy of her final payslip from the Respondent, which bore the ABN of the Respondent. Her previous representative failed to identify or recognise the significance of the ABN number in identifying the identity of the Applicant’s employer.
• On 16 April 2021, the Applicant, at the request of her initial representative, contacted the Respondent requesting, as a matter of urgency, that they confirm the identity of her employer.
• Later, on 16 April 2021, the Applicant found copies of letters dated November 2014 and December 2015 and provided them to her initial representative, who advised her that these letters confirmed that her employer was the Roman Catholic Archbishop of Perth, and therefore that her application should be filed in the State jurisdiction.
• On the basis of the advice given to her by her initial representative, the Applicant instructed them to file her unfair dismissal claim in the State jurisdiction on 17 April 2021.
• On 23 April 2021, the Applicant spoke to Mr Kiel Anthony of the Respondent, in response to the email that she had sent to the Respondent on 16 April 2021. Mr Anthony informed the Applicant that as of January 2020, the Respondent was her employer.
• Following this phone call, the Applicant contacted her initial representative and instructed them to urgently prepare and file her Application with the Commission because she believed that she was one day out of time.
• The application was filed in the Commission on 23 April 2021, one day out of time.
• The reason for the Applicant’s delay was her belief that her application should be filed in the State jurisdiction. This belief was based on the failure of her initial representative to identify the significance of the Respondent’s ABN on her final payslip, and the failure of the Respondent to confirm the identity of her employer in a timely manner.
• The Applicant took significant action to dispute the dismissal, including through seeking assistance of the IEU, seeking advice from her previous representative, enquiring with the Respondent about her true employer, and quickly instructing her previous representative to file her application once she discovered the Respondent was her employer.
• Given the brevity of the delay – one day – there is no prejudice to the employer in granting an extension of time.
• These factors amount to the “exceptional circumstances” required by s.394(3) to warrant an extension of time to lodge the Applicant’s unfair dismissal application.
[18] Mr Curlewis submitted four documents as follows:
• A copy of a letter written by the Respondent to the Applicant concerning the identity of the employer, dated 6 December 2019.
• A payslip which contained the Respondent’s ABN.
• A message about the identity of the employer which was distributed via the Respondent’s online messaging system.
• The Respondent’s ASIC company extract.
[19] The Respondent’s submission is summarised as follows:
• Each employee of the Roman Catholic Archbishop of Perth was advised on 6 December 2019 that from 1 January 2020, they would be employed by the Respondent.
• On 29 May 2020, a notification was posted on the Respondent’s online messaging system confirming the change of employer, and that the industrial relations jurisdiction had changed from State to Federal. It is noted that no evidence was led to prove this document was ever received by the Applicant, and the Applicant was not cross-examined regarding it.
• The Applicant was given sufficient notification that her employer was the Respondent.
• It was a relatively simple exercise for either the Applicant or the Applicant’s representative to ascertain the employer based on the ABN which was provided on each of the Applicant’s payslips since 1 January 2020.
• The fact that the Applicant could lodge her own tax return meant that she should have realised the significance of the ABN.
• Whilst it was accepted that representative error had occurred, the Applicant had contributed to the delay by her failure to recognise the correct employer, and therefore did not satisfy the test for “exceptional circumstances” as required by s.394(3) of the Act.
Applicable Law
[20] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
[21] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 4
[22] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd5 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
[23] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 6 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,7the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
[24] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 8
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[25] The delay in this case is one day. In my view, the delay is explained by representative error. The Applicant was entitled to rely on the advice of her initial representative. Despite the urging of the Respondent, I do not accept that the identification of the correct jurisdiction in cases where the employer has changed its status is a simple task, particularly in the State of Western Australia where the State jurisdiction has a wider scope.
[26] I accept that the Applicant had a truly held belief that the application was to be filed in the State jurisdiction and that she relied on advice given to her by her representative at the time.
[27] In respect of Ms Edmonds’ contribution to the delay, I find she was active in the search for her true employer. Ms Edmonds made enquiries with the Respondent, who did not provide a timely response. Ms Edmonds provided her representative with her payslip, which had all the information necessary for her representative to ascertain her true employer, with representative error the only reason such an action failed to establish the information necessary. In addition, the fact that the Respondent quoted an ABN on the payslip is not determinative of it being a corporation covered by the Act.
[28] Once the error was recognised, the Applicant reacted promptly, instructing the application to be lodged the same day.
[29] Having received the Applicant’s revised statement, it appears as if the Applicant’s original submissions and witness statements were crafted by the Applicant’s former representative in order to minimise any blame that could be attributed to the representative, and as a result were not an accurate reflection of the reasons for the delay.
[30] In my view the Applicant has provided a credible reason for the delay in filing her Application. This factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[31] Ms Edmonds was aware of the alleged dismissal on the date it occurred.
[32] This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[33] Action taken by the employee to contest the alleged dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 9
[34] Ms Edmonds’s engagement with the IEU, as well as her enquiries with the Respondent and instructing her initial representative, is action taken to contest the dismissal and this factor is a consideration in favour of the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[35] Prejudice to the employer will weigh against granting an extension of time. 10 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.11
[36] There is no submission that the granting of an extension of time represents prejudice to the Respondent.
Paragraph 394(3)(e) - merits of the application
[37] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 12 considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[39] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[40] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
[41] An Order13 reflecting this decision will be issued.
COMMISSIONER
Appearances:
C Lewin for the Applicant
I Curlewis for the Respondent
Hearing details:
2021.
Adelaide:
June 16
Printed by authority of the Commonwealth Government Printer
<PR730643>
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
2 Section 394(3) of the Act
3 Exhibit A1
4 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
5 [2011] FWAFB 975
6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
7 [2016] FWCFB 349
8 [2018] FWCFB 3288 at [35]-[45]
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
10 Ibid
11 Ibid
12 [2016] FWCFB 6963
13 PR730811
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11
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