Victoria Bingham & Rita Charles v St Hilda’s Anglican School for Girls (Inc)

[2015] FWC 4182

[2015] FWC 4182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Victoria Bingham & Rita Charles
v
St Hilda’s Anglican School for Girls (Inc)
(C2015/1348 & C2015/1351)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 23 JUNE 2015

Application to deal with contraventions involving dismissal

[1] Ms Victoria Bingham and Ms Rita Charles (the Applicants) made applications which were received by the Fair Work Commission (the Commission) on 16 January 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that they had been dismissed by St Hilda’s Anglican School for Girls (Inc) (St Hilda’s - the Respondent) in contravention of the general protections provisions of the Act. In their applications, the Applicants contended that they were dismissed from their employment on 31 December 2014.

[2] On 23 January 2015 the Respondent filed its responses to the applications. In doing so, it raised a jurisdictional objection to the applications on the basis that the Applicants’ dismissal took effect on 10 December 2014 and that the applications had therefore been lodged outside the 21 day timeframe for lodgement specified at s.366(1) of the Act.

[3] As there was a dispute about whether or not the applications were made within time, the Commission issued Directions on 27 January 2015 (which were revised on 2 February 2015) requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the issues in dispute.

[4] The Directions issued invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the directions. Neither party requested to be heard.

[5] For the reasons set out below I have concluded that the Applicants’ employment ceased on 10 December 2014 and that their applications were therefore made outside the 21 day statutory timeframe for lodgement. Further, I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the applications will be dismissed.

Background

[6] Ms Charles commenced full time employment with St Hilda’s in January 1998 and Ms Bingham commenced her employment with St Hilda’s in January 2002. The Applicants’ were employed as teachers, and at the time of their dismissal were both working part-time in a job share arrangement covering Duties Other Than Teaching (DOTT) for a number of teachers in St Hilda’s Early Learning Centre (ELC) on a relief basis.

[7] The Respondent decided in mid-2014 to restructure the operations of the ELC for a number of reasons and to make the position of the DOTT relief teacher redundant. This was conveyed to the Applicants by Ms Joy Shepherd, Principal of St Hilda’s, on 27 August 2014. On 29 August the Applicants wrote to Ms Shepherd noting that while they were willing to be considered for full-time roles, their preference was to continue to work on a part-time basis. On 1 September 2014 Ms Shepherd wrote to the Applicants and confirmed that the position of DOTT relief teacher was no longer required and that their employment would terminate as a consequence. The letter stated that “Your employment will end at the conclusion of the 2014 school year.”

[8] The Applicants’ attended end of term events, with their last day of work being 10 December 2014. The Applicants’ outstanding leave entitlements and redundancy pay were paid to them on 12 December 2014. As previously noted, the Applicants’ contended that their employment ended on 31 December 2014.

The Relevant Legislation

[9] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

[10] To determine whether the Applicants’ applications were made within the statutory timeframe it is first necessary to come to a view as to the effective date of the dismissals.

On what date did the dismissals take effect?

[11] The critical issue in coming to a view as to the effective date of dismissal is the meaning that should be attributed to the reference in the 1 September 2014 letter from Ms Shepherd to employment ceasing at “the conclusion on the 2014 school year”.

The Respondent’s Submissions and Evidence

[12] The Respondent submitted that the Applicants’ dismissal took effect on 10 December 2014 as that was the last day of the 2014 ‘school year’.

[13] The Respondent filed two witness statements - one from Ms Linda Elizabeth Binder, the Head of Early Learning at St Hilda’s, and one from Ms Michelle Houwen, St Hilda’s Business Manager.

[14] Ms Binder, a teacher with 34 years experience, deposed that the term ‘school year’ means the dates during which attendance at the school is required. Ms Binder’s evidence was that at St Hilda’s a calendar is produced in Term 3 of each year for the following year which shows the dates on which the school will be open, with the calendar for 2014 stating that the last day on which teaching staff were required to attend work was 10 December 2014. Ms Binder further deposed that on 3 December 2014 she met with the Applicants to discuss how they wished to be farewelled from the school, attesting, inter alia, that at no stage did they indicate to her that they believed that they would be working through until 31 December 2014.

[15] Ms Houwen’s evidence was that at St Hilda’s the term ‘school year’ means the dates during which teaching staff attendance at the school is required, with the 2014 calendar stating that the last day which teaching staff were required to attend work was 10 December 2014. Ms Houwen further attested that on 10 December 2014 a number of events had been organised and that the Applicants were aware that these events had been organised to celebrate the end of the year. Ms Houwen also deposed that to the best of her knowledge the Applicants did not present for work at the school after 10 December 2014 and were paid their outstanding leave entitlements and redundancy pay on 12 December 2014.

[16] As to the meaning of the term ‘school year’, the Respondent pointed to the Macquarie Dictionary definition of the term which provides that a ‘school year’ is ‘the months during the year when a school is open and attendance is required’. The Respondent, while acknowledging that St Hilda’s was not a government school, also referred to s.117 of the West Australian School Education Act 1999 (the WA legislation) which sets out how a school year for government schools is determined, noting that the legislation distinguishes the term ‘school year’ from the term ‘calendar year’.

[17] Beyond this, the Respondent submitted that:

• the Applicants had worked for a number of years with the school and were fully aware that a ‘school year’ does not end on 31 December;



• the end of year activities organised by it were clearly predicated on the school closing on 10 December 2014 and teaching staff not being required to attend work again after that date until January 2015;



• the Applicants participated in those activities in the knowledge that they were organised to celebrate the fact that the school was closing that day and that it would be their last day of work; and



• at no stage did the Applicants present for work after 10 December 2014 or make queries as to why they would not be required after this date.

The Applicants’ Submissions and Evidence

[18] The Applicants’ submitted that the phrase ‘school year’ is used to describe the dates on which students attend school and has no relation to the period of employment of a teacher. The Applicants further submitted that the phrase ‘the dismissal took effect’ in s.366(1) of the Act does not mean the date on which the employer unilaterally decides that the dismissal shall take effect, adding that regard must be had to the employee’s knowledge of the termination. On this issue, it was submitted while the Applicants received notice on 1 September 2014 of their impending dismissal they continued to openly insist that their employment relationships did not end until 31 December 2014 and were never informed otherwise. The Applicants also highlighted that they were paid holiday pay until 31 December 2014. In summary, the Applicants submitted that there was a strong case both in fact and law that their dismissals did not take effect until 31 December 2014.

[19] Witness statements were provided by the Applicants. Ms Charles deposed, among other things, that:

• she was never given a final date of employment and that the date was never discussed or clarified with her by any member of the Respondent’s staff;



• she attended the events of 10 December 2014 but did not request any farewell gifts and did not consider that the events had any relevance to her employment period;



• on 10 December 2014 she was asked to return her school keys and badge;



• when returning her keys she was asked by the Junior School Receptionist, Ms Burke, to complete a form on which she recorded that her last day at work would be 31 December 2014;



• in returning her keys to Ms Burke she stated that she did not understand why she had to return them as she was employed until 31 December 2014 to which Ms Burke shrugged her shoulders;



• on 15 December 2014 she spoke to Ms Houwen’s assistant requesting access to St Hilda’s employee counselling program after 31 December 2014 on the basis that her employment ended on that date;



• her pay slip for the period 28 November to 12 December 2014 stated that she had been paid 48 units of holiday pay, which suggested that she was employed over the holiday period; and



• she always thought the ‘school year’ was the same as a ‘calendar year’, referring to letters of appointment she received in 1993 and 1996 which stated respectively that her appointment would commence on 1 January 1994 and had been extended to 31 December 1997.

[20] Ms Bingham’s evidence was in very similar terms to Ms Charles. The key difference being that Ms Bingham referred to her 2002 contract of employment and letters from 2006 and 2008 which referred to the period of her employment. The 2002 contract specifies the date of commencement as 1 January 2002, while the letters use terms such as “the beginning of Term 1, 2007”, “the beginning of the 2008 school year” and “the start of the academic year.” Ms Bingham attests that she interpreted the terminology used in the latter two letters as meaning 1 January 2008 and 2009 respectively. Ms Bingham also attested that her pay slip for the period 28 November to 12 December 2014 referred to “Holiday Pay to 31/12/14”.

[21] The Applicants’ witness statements were supported by a witness statement from Ms Robin McKean, a teacher for 41 years and who has worked at St Hilda’s since 2008. Ms McKean attested that in her experience at St Hilda’s the phrase ‘school year’ means the full year starting on 1 January up until New Year’s Eve on 31 December and that she would expect a teacher employed until the end of the school year to be employed until 31 December.

Consideration

[22] The terms of the various letters of engagement and employment and employment contracts cited by the Applicants in their witness statements offer little contemporary guidance as to the meaning of the term ‘school year’. The most recent documents, i.e. the 2006 and 2008 letters referred to by Ms Bingham, do not refer to specific dates in respect of her period of employment. Further, those documents that do refer to specific dates are quite dated, in one case over twenty years old. For these reasons I consider that little weight can be attached to these documents.

[23] Similarly, I consider that little weight can be attached to the Applicants’ evidence that Ms Burke, the Junior School Receptionist, did not challenge them when on returning their keys they both said that they did not understand why they had to do so as they were still employed until 31 December 2014. While Ms Burke would undoubtedly have been aware that the Applicants’ employment was ending, it is not apparent to me why they would have expected her to have been au fait with the finer details of the Applicants’ actual end date of employment, particularly in circumstances where Ms Burke does not appear to have played any role in the lead up to their dismissals.

[24] Drawing on the above submissions and evidence, key factors which support a view that the Applicants’ employment ceased on 10 December 2014 are:

• Ms Binder’s discussion with the Applicants on 3 December 2014 regarding how they wished to be farewelled from the school;



• the Applicants did not present for work at the school after 10 December 2014;



• the 2014 St Hilda’s Calendar which does not show any activities prior to 28 January 2014 (New Staff Orientation) or after 10 December 2014 (Staff Planning and Staff Lunch) other than the Singapore Tour which the Applicants’ did not contend they were involved with; and



• the Applicants did not receive any further pay slips beyond those received for the period 28 November to 12 December 2014.

[25] On the other hand, the reference to “Holiday Pay to 31/12/14” in the Applicants’ pay slips for the period 28 November to 12 December 2014 supports a view that the Applicants’ employment ceased on 31 December 2014.

[26] Finally, regard must also be had to the ordinary meaning of the term at ‘the conclusion of the school year’. While it was not disputed that teachers often attend work outside school terms, in my view the term ‘school year’ connotes something different to a ‘calendar year’. That view is reinforced by the Macquarie Dictionary definition and the WA legislation cited by the Respondent.

[27] On balance, the material before the Commission supports a conclusion that the Applicants’ employment ceased on 10 December 2014.

Whether to allow a further period for the application to be made

[28] The practical effect of the Commission’s view that Applicants’ employment ceased on 10 December 2014 is that their applications were lodged outside the 21 day statutory timeframe for lodgement. Accordingly, the Commission now turns to consider the issue of whether there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[29] The Applicants’ submitted that they lodged their applications based on their understanding that that their dismissals took effect on 31 December 2014, reflecting their interpretation of the term ‘the conclusion of the school year.’ It was further submitted that the Applicants held that view consistently and openly. In addition, the Applicants submitted that they were advised by their legal representatives that any applications lodged prior to their dismissal taking effect would be struck out for want of jurisdiction and that acting on that advice they did not lodge their applications until after 31 December 2014. If their dismissal took effect on an earlier date, the Applicants submitted that their mistake was directly attributable to the ambiguous nature of the language used by the Respondent in advising them of their dismissal.

[30] Mr Simon Millman, a solicitor and practice group leader with Slater + Gordon Lawyers, the Applicants’ solicitors, provided a witness statement in which he attested that on 16 January 2015, based on the instructions provided to him by the Applicants, he caused the Applicants’ general protections applications to be filed with the Commission. Mr Millman’s evidence does not refer to the Applicants’ submission as to the advice provided regarding lodging an application before 31 December 2014.

[31] The Respondent submitted, inter alia, that the language used by it was not ambiguous and that this was not an exceptional circumstance warranting the granting of an extension of time. To the extent there was ambiguity regarding the Applicant’s termination date, the Respondent submitted that it fell on the Applicants to clarify what that date was, adding that there was no evidence that they had done so.

[32] It is not clear why either the Applicants or their legal representative did not seek to clarify the precise termination date. The Applicant’s meeting with Ms Binder on 3 December 2014 would have been an obvious opportunity to have done so. An even more obvious opportunity occurred on 10 December 2014 when the Applicants were asked to return their school keys and badges. While I acknowledge that it would have been better for the Respondent to specify a particular termination date in the letter of 1 September 2014, the Applicants must bear some responsibility for not asking the obvious question despite having the opportunity to do so.

[33] Taking into account all of the above, I consider that on balance the reason for the delay does not support a finding that there were exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[34] The Applicants submitted that they disputed their selection for redundancy from 27 August 2014 and that on 3 December 2014 their representatives advised the Respondent that general protections applications would be made.

[35] The Respondent conceded that the Applicants had disputed their dismissals since they were first informed of the Respondent’s decision. However, the Respondent also submitted that the Applicants should have done more to clarify the date that their employment would end, including following up with their legal representatives on the effective date of their dismissal. In the Respondent’s submission, their failure to do so weighs against the Commission granting an extension of time.

[36] While it is not contested that the Applicants consistently disputed their dismissals, as observed at paragraph [32] above, they must bear some responsibility for not seeking to clarify when their dismissals would take effect. On balance, I consider that this weighs against a finding that there were exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[37] The Applicants submitted that the Respondent was put on notice in early December 2014 that their general protections applications would be made. Further, the Applicants submitted that, if 10 December 2014 was considered to be the termination date, the purported delay was for a short period of sixteen days, which also included the Christmas/New Year holiday period.

[38] The Respondent accepts that there is no prejudice to it caused by the delay in filing the applications.

[39] I consider this factor to be a neutral consideration.

(d) The merits of the application

[40] The Applicants’ submitted that given the limited material before the Commission regarding the merits of the application, this factor should be considered a neutral consideration.

[41] The Respondent disputes the Applicants’ assertion that it took adverse action.

[42] I consider this factor to be a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[43] The Applicants submitted that, in view of the rare circumstances presently before the Commission, it would be fair to grant an extension of time to any other person in a like position.

[44] The Respondent submitted that given that the Applicants had more than three months notice that they were to be made redundant that they should have sought clarification as to when their employment would end rather than simply rely on an assumption that ‘the conclusion of the school year’ meant 31 December 2014. The Respondent further submitted that it would be unfair for the Applicants to be granted an extension on having instructed their legal representatives to file applications as a reason for the delay in lodgement.

[45] I consider this factor to be a neutral consideration.

Conclusion

[46] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[47] Having considered all of the factors set out in s.366(2), and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[48] Accordingly, the applications cannot proceed and are therefore dismissed. An Order to this effect [PR568578] will be issued separately.

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code A, PR568577>