Wendy Bermingham v Nambour Christian College Ltd

[2016] FWC 1547

[2016] FWC 1547

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Bermingham
v
Nambour Christian College Ltd
(U2015/16620)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mrs Bermingham and the respondent ended on 16 November 2015. Mrs Bermingham lodged her application at the Fair Work Commission on 9 December 2015. Mrs Bermingham’s application was lodged two days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mrs Bermingham. I wrote to her on 22 December 2015 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Mrs Bermingham set out her reasons for delay in her application and, in addition, provided a statement in response to my enquiry on 24 December 2015. These are both set out below:

“My husband, myself and my representative, Ian Mulville who is a family friend went online last week to lodge the unfair dismissal claim. This was within the 21 days. We thought that it was lodged. A couple of days ago my husband suggested I ring the commission to ensure that the initial claim that was lodged had been received and to inquire of our next steps. Upon talking to a representative, Melissa, at the commission, it was evident that what we did online last week was, in fact, only complete a form to register for eFiling with the commission and not complete the correct form required to lodge a complaint or begin the process for an unfair dismissal claim. I then immediately asked if we could lodge it over the phone (as we are currently away on holiday at Fraser Island with limited internet connection) which Melissa proceeded to do. We paid our lodgement fee immediately over the phone also and she then has emailed us the half completed form for us to complete and return to her within the next 14 days.

I also have not acted towards lodging an unfair dismissal earlier than last week as I feel my employer has used strong arm and scare tactics against me to make me feel like I didn't have a chance of winning an unfair dismissal case even if I were to lodge one. In short, I complained against bullying and harassment towards me by a superior. My employer Bruce Campbell (Principal of Nambour Christian College) then decided to enlist a barrister who is a long term member of the school board, Susan Brooks to carry out an investigation and write a report for my employer. I was then suddenly terminated on the grounds of poor performance, effective immediately and subsequently told, by the business Manager Margaret Sweeney, not to enter the school premises again in the future or talk to any of my colleagues without first getting her permission. As I am still a parent of the school I feel this is discriminatory.

I feel I have been threatened and intimidated into silence regarding my dismissal. It was only after talking to my family friend Ian Mulville, a couple of weeks after my dismissal, who has an extensive background in Human Resources, that I realised I do have a strong case for Unfair Dismissal and should lodge a complaint with the Fair Work Commission to prevent this happening to employees in the future and to seek compensation for the emotional and psychological trauma that I have experienced as a result of my Unfair Dismissal. Prior to talking to Ian Mulville, whenever anyone suggested I might have a case for Unfair Dismissal, I reasoned that because my employer had enlisted a barrister, I assumed they must also must have followed the lawful procedures regarding my dismissal and I assumed I wouldn't have a case.

At the time of being told I was dismissed by my employer, Bruce Campbell, I strongly argued against the grounds of poor performance for about 45 min, saying that it was an extremely unfair decision to dismiss me on those grounds as it was not true, however it was clear that he had made his decision and wasn't open to hearing my side of the story. Over the course of 2015, I have documented approximately 950 interactions with teachers, students and parents regarding pastoral care issues (which is just one of the many aspects of my job) and out of these 950 interactions there has only been 1 parental complaint to my superior. If my work performance was poor I would expect many more complaints than just one.

I have never been dismissed from any employer before, therefore I am not familiar with the process for lodging a claim with the Fair Work Commission and was not aware until last week that there was a 21 day lodgement time frame.

In my 24 years of teaching, which includes working in 5 different Independent schools in Queensland, two overseas International schools in Malaysia, as well as 4 years working for the Qld Education Department, at no time has any employer been unsatisfied with my work performance, hence my complete shock at being dismissed on the grounds of poor performance.

This situation has therefore completely taken me by surprise and I have been suffering emotional and psychological stress and trauma since my dismissal, and it has taken a number of weeks to overcome the shock of my dismissal, especially considering the issue of my work performance has never been raised by my employer in the two years I was in this role. I am only now able to look at the situation more rationally and not as emotionally, to realise that I need to take action against being unfairly dismissed in order to prevent this happening to others in the future. I am one of 5 staff persons who I know, in my opinion, to have been unfairly dismissed from the school in the past couple of months.

Over the past week, after deciding I should lodge a complaint regarding my dismissal, I have been trying to determine, from seeking legal advice which has not been readily forthcoming, whether I should be lodging a claim for Unfair Dismissal or Unlawful Dismissal which is taking time to determine, so in the interim it has been to me by the Fair Work Commission to lodge a claim for Unfair Dismissal.” 1

“Dear Sarah and Senior Deputy President Drake,

Thank you for your email dated 22 December and the letter from Senior Deputy President Drake.

In response to your email, I would like to apply for an extension of time in order for my unfair dismissal application to be processed and heard.

For the statement of reasons for requesting an extension of time, please see the reasons as set out in my Unfair Dismissal claim form together with the information in this email.

I would like to bring to your attention that my health has been affected by this traumatic dismissal situation and if needed I will be able to provide a letter from my doctor in the new year. Due to tomorrow being Christmas Day and the upcoming holiday season, I was able to secure an appointment with my doctor on 11 January.

Please take into consideration that my application was lodged outside the 21 day time frame by 1 day.

Your careful consideration of this request for an extension of time, in order to allow my case to be heard, is greatly appreciated.” 2

[4] After having been prompted Mrs Berminham provided a report from her doctor, the contents of which are set out below:

“To whom it may concern,

I have been providing care to Wendy whilst her usual GP, Rosemary Howard, is away from our practice. I have been aware of Wendy being under particular stress with a prolonged situation of workplace bullying. This has been noted in Dr Howard’s notes on November 10, 2015, however I am aware that there had been previous discussions regarding the impact it had been having on Wendy’s physical health, leading to testing in late October. It is clear to me that Wendy has been adversely affected and sufferred a lot of stress due to the bullying and dismissal.

Yours sincerely

Dr Beth Hansen” 3

[5] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

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.

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[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.” [Endnotes not reproduced]

[7] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[8] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

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

[9] I was not persuaded that Mrs Bermingham’s difficulties were out of the ordinary, unusual or uncommon.

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

[10] Mrs Bermingham became aware of the end of her relationship with the respondent on 16 November 2015.

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

[11] Mrs Bermingham disputed her dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[12] I was satisfied that there would be no greater prejudice to the respondent caused by Mrs Bermingham’s application being lodged now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

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

[13] Merit was a neutral issue in my consideration of this application.

fairness as between Mrs Bermingham and other persons in a similar position-s.394(3)(f)

[14] There was no issue of fairness in relation to any other person in a similar position.

[15] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mrs Bermingham’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Form F2 – Unfair Dismissal Application, 1.4.

 2   Email from Wendy Bermingham, 24 December 2015.

 3   Letter from Dr Beth Hansen, 19 February 2016

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