[2010] FWAFB 7251 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against the decision [[2010] FWA 3701] of Commissioner McKenna at Sydney on 17 May 2010 in matter number U2010/6000.
Introduction
[1] Ms Janette Smithers’ employment was terminated by Cheval Properties Pty Ltd t/as Penrith Hotel Motel (Cheval) on 18 December 2009. On 10 February 2010, Ms Smithers made an application to Fair Work Australia (FWA) under s.394(1) of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. Section 394(2) of the FW Act requires a s.394(1) application to be made within 14 days after the dismissal took effect or within such further period as FWA allows. Ms Smithers’ s.394(1) application was made more than 14 days after her dismissal by Cheval took effect.
[2] On 14 May 2010, Commissioner McKenna issued a decision 1 and order2 extending the time for Ms Smithers to make her s.394(1) application to 10 February 2010. Cheval has appealed the Commissioner’s decision and order.
Relevant legislation
[3] Section 394(3) of the FW Act sets out the basis on which FWA may extend the time for making a s.394(1) application. Section 394(3) states:
“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[4] Section 394(3) requires a decision by the FWA member as to whether they are satisfied there are exceptional circumstances taking into account the matters in s.394(3)(a) to (f).
[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.
Exceptional circumstances
[6] As earlier indicated, Ms Smithers was told by Cheval on 18 December 2009 that she was dismissed. In accordance with s.394(2)(a) she should have made her unfair dismissal remedy application by 4 January 2010. This is because 1 January 2010 was a public holiday and 2-3 January 1010 were the weekend. 3 Before the Commissioner, Ms Smithers’ evidence as to the reasons why her application was delayed until 10 February 2010 were:
• She did not receive a letter from Cheval advising her of the reasons for her dismissal. 4 On 18 December 2009, she protested to the person who told her she was dismissed that there had been no indication her work wasn’t done properly or there had been any problems and she asked for a letter as to why she had been dismissed. She was told by Cheval on that day that she did not need such a letter and it would not be provided.5 Nevertheless, she expected there would be something else from Cheval about her dismissal because she considered them a professional organisation and she had worked for them for some time.6
• On 22 December 2009 she returned to Young in country New South Wales from suburban Sydney because her elderly mother was ill and had been hospitalised. 7 She returned to suburban Sydney from Young just before 1 January 2010.8
• In January 2010 she went to the New South Wales Office of Industrial Relations and on 21 January 2010 made an unfair dismissal remedy application under s.84 of the Industrial Relations Act 1996 (NSW). 9 On 8 February 2010, she was advised her application for an unfair dismissal remedy should have been made to FWA.10
[7] Section 85(1) of the Industrial Relations Act 1996 (NSW) provides that an unfair dismissal remedy application must be made not later than 21 days after the dismissal. Twenty-one days after 18 December 2009 was 8 January 2010.
[8] Ms Smithers also gave evidence that she had been back and forth between suburban Sydney and Young between just before 1 January 2010 and 23 April 2010 but she did not consider that relevant to her application for a further period for the making of her unfair dismissal remedy application to FWA. 11
[9] The Commissioner dealt with Ms Smithers’ reasons for her delay in making her unfair dismissal remedy application as follows:
“[10] As outlined in the extract of submissions above, the three principal matters relied on by the applicant were the Christmas period; her mother’s illness, necessitating travel to Young; and initially seeking relief in the wrong jurisdiction. In her evidence, the applicant also placed reliance on the fact she had asked for written reasons for the dismissal and expected that, as an organisation run by ‘professional people’, the respondent would attend to that request.
[11] The fact the dismissal occurred a week before Christmas, does not relevantly ground a claim of exceptional circumstances, but the need to go to regional New South Wales on 22 December 2009 in connection with the hospitalisation of the applicant’s 91 year old mother is a relevant factor weighing in favour of the applicant’s case. The applicant’s evidence indicated she had returned initially from Young just before the New Year, but went ‘backwards and forwards’ a few times thereafter. As the applicant’s mother was in Young District Hospital, the applicant went ‘home’ to Young, describing it as ‘as very bad time, with Christmas time’. She explained that she was undecided about whether ‘to do this or not’, but decided to make an unfair dismissal application when she had received nothing in writing. Mr Ryan submitted there was nothing to verify the applicant’s evidence that her mother was admitted to hospital. Equally, there was nothing advanced to contradict the applicant’s evidence in this respect, and nor was she cross-examined on this point.
[12] As to the fact the applicant initially sought relief in the wrong jurisdiction, I have noted the respondent’s submission that ‘unfamiliarity with the jurisdiction is not a sufficient reason’. While a lack of familiarity with the remedies available to contest a dismissal may not, of itself, be a sufficient reason to demonstrate exceptional circumstances, it is a relevant factor to be considered and it is weighs in favour of the applicant...
[13] Although Hurrell and Queensland Cotton Corporation Limited involved a different legislative scheme than the Act and was concerned with the misapplication of a criminal law maxim to an unfair dismissal application, the principle that may be drawn from the comments of the Full Bench and applied to this application is that the applicant’s lack of knowledge of the remedy appropriately available to her - with the resulting delays occasioned by filing in the wrong jurisdiction is a matter which - may, despite Mr Ryan’s submission, be a relevant consideration. Here, the applicant plainly had a poor appreciation of, or was poorly advised about, the remedies appropriately available to her - as evidenced by the fact she filed an application for relief under s.84 of the Industrial Relations Act. Moreover, if the applicant had been aware sooner of the jurisdictional difficulty with the application filed under the Industrial Relations Act, this application would still be out of time - but it would not have been so far out of time. The applicant’s evidence in this respect was that when she returned to Sydney she went to the ‘Industrial relations office just across from Central’ (which I take to be the NSW Office of Industrial Relations at Rawson Place, near Central Station), explained the situation, and was given a form to complete - evidently being a form to make an application under the Industrial Relations Act rather than under Fair Work Act. Then, two or three days before the listing of the matter before the Industrial Relations Commission, the applicant received some form of communication from the Industrial Relations Commission about the jurisdictional difficulty and was advised to file an application with Fair Work Australia – which she then did on the day immediately after discontinuing the proceedings before the Industrial Relations Commission.
[14] On the other hand, I note the applicant’s evidence suggests she was aware that she had a remedy, but she was undecided about whether to make an application while awaiting the written reasons she had requested (despite being informed no reasons would be given, she expected that an organisation run by ‘professional people’ would provide something in response to her request), in circumstances where the person who effected the dismissal would not give any reason during the telephone conversation.”
[10] In respect of when Ms Smithers first became aware of the dismissal, the Commissioner accepted that Ms Smithers was informed of her dismissal on 18 December 2009.
[11] The Commissioner also accepted that Ms Smithers’ actions in insisting she be given reasons for her dismissal, objecting to the dismissal in the absence of advice about performance-related issues and her commencement of proceedings under the Industrial Relations Act 1996 (NSW) constituted action taken by her to dispute her dismissal.
[12] The Commissioner further found there was no prejudice to Cheval, including prejudice caused by Ms Smithers’ delay in making her unfair dismissal remedy application.
[13] In respect of the merits of Ms Smithers’ unfair dismissal remedy application, the Commissioner considered that on the material before her Ms Smithers had an arguable case that her dismissal was unfair.
[14] The Commissioner completed her consideration of the specific matters in s.394(3)(a) to (f) of the FW Act by finding that no evidence had been adduced from either party as to matters of fairness as between Ms Smithers and others in a similar position.
[15] In deciding whether she was satisfied there were exceptional circumstances, the Commissioner said:
“[26] This application for extension raises strongly competing considerations in relation to whether the applicant has made out exceptional circumstances, in circumstances where the termination of employment occurred on 18 December 2009 and the application was filed, well out of time, on 10 February 2010. I accept that the applicant’s need to attend Young in connection with her 91 year old mother’s hospital admission is a matter which would partly explain delay. However, I also note and accept Mr Ryan’s submission, relying on Ebbott v FMSA [2010] FWA 2177, that, in itself, going to Young would not have prevented the filing of an application – albeit the physical dislocation from the applicant’s Sydney home and the carer’s issues that necessitated travel to Young are relevant to the overall situation. Similarly, while the applicant obviously had a poor appreciation of the provisions concerning unfair dismissal claims given that she filed initially in the wrong jurisdiction, it is not suggested she was unaware of unfair dismissal remedies. That is, the evidence suggested she was considering making an application with respect to an unfair dismissal claim from around the time of her dismissal, but did not do so for reasons including going to Young, the effect of the Christmas period, and because she was waiting for the written reasons for the dismissal that she expected from the ‘professional people’. The fact the applicant filed in the wrong jurisdiction is a matter which explains, quite satisfactorily in my view, a large part of the delay, but, equally, the application to the Industrial Relations Commission was itself made beyond the time-frame of 21 days specified in the Industrial Relations Act. I have also considered the matters raised by the respondent concerning prejudice, but they do not resonate strongly in terms of prejudice for the reasons outlined earlier in the decision.
[27] I consider the applicant would have an arguable case that the dismissal was unfair, albeit that may well be contested in any hearing on the substantive claim of unfair dismissal by evidence from Ms Alliston as to the date on which the termination of employment was effected and the content of any face-to-face conversation. However, in the assessment of the potential merits of the substantive application, the evidence properly before me comprises that only of the applicant’s evidence. As to that, the applicant was unwell on Thursday 17 December 2009. On Friday 18 December 2009, the applicant visited her doctor and also telephoned the hotel to say she was unwell and would not be attending work. Later that day, Ms Alliston telephoned the applicant and informed her that she was no longer required at the hotel. The applicant thought the dismissal was for some unspecified, performance-related reasons - given her complaints about lack of warnings prior to the dismissal. The applicant said she was ‘shocked’ by the telephone call, because she had not been given any prior ‘indication’. Moreover, the applicant asked for reasons, but Ms Alliston did not provide any reasons - stating that no reasons were required. If this was dismissal brought about for the reasons identified in the memorandum dated 18 November 2009, the applicant was not informed that was the case - and there was at least a suggestion in the evidence, such as in the last paragraph of the memorandum to staff, that there had been some issues involving leave requests as well as evidence that the respondent had declined a request from the applicant for leave to travel to Young. Ms Summers explained that while previous requests from the applicant for leave to visit her sick mother had been accommodated the most recent request was refused as another employee had been granted leave and ‘the relieving manager just couldn’t accommodate her continual time for request off as a casual. It was proving too difficult for us. In addition, we had to put on full time staff to absorb all the casual rates’ for financial reasons.
[28] On a consideration of the matrix of circumstances in this case in the context of the provisions of s.394(3) of the Act, I am satisfied, on balance, that exceptional circumstances exist in relation to this application having regard, in particular, to the physical dislocation and exigencies associated with the applicant’s carer’s responsibilities concerning the admission of her 91 year old mother to Young District Hospital and the filing initially of an application concerning unfair dismissal in the wrong jurisdiction. On the evidence adduced at this stage of the proceedings, I also consider the applicant has an arguable case concerning the substantive application.
[29] It is appropriate to extend time.”
Appealable error
[16] Ms Smithers does not advance any reason for her delay between 8 January and 21 January 2010 in making her unfair dismissal remedy application to FWA, other than her expectation that there would be something else from Cheval about her dismissal after being told of it by them on 18 December 2009. However, her evidence that she held such an expectation is not credible given that on 18 December 2009 she asked Cheval for a letter stating the reasons for her dismissal and was told by them then that it would not be provided.
[17] It is apparent from the Commissioner’s decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.
[18] The Commissioner’s failure to take into account such a matter is an appealable error of the type set out in House v The King. 12 Such a matter should have been a material consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and whether she was satisfied there were exceptional circumstances.
[19] Having regard to that appealable error, we grant permission to appeal in the public interest. We will determine Ms Smithers’ application for a further period for making her unfair dismissal remedy application to FWA.
Conclusion
[20] We have earlier set out Ms Smithers’ evidence as to the reasons why her unfair dismissal remedy application was not made to FWA until 10 February 2010, some 37 days late.
[21] We have also indicated that Ms Smithers failed to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.
[22] In respect of the matters in s.394(3)(b) to (f), we conclude Ms Smithers became aware of her dismissal on the day she was dismissed, being 18 December 2009.
[23] It is apparent she disputed the dismissal by seeking written reasons for the dismissal and objecting to it in the absence of advice about performance-related issues and by making an unfair dismissal remedy application under s.84 of the Industrial Relations Act 1996 (NSW) on 21 January 2009.
[24] There is no apparent prejudice to Cheval from Ms Smithers’ delay in making her unfair dismissal remedy application to FWA.
[25] On the untested material submitted by the parties and the evidence given by Ms Smithers at the proceeding in respect of her application for a further period for the making of her unfair dismissal remedy application, it cannot be concluded her unfair dismissal remedy application to FWA is without merit.
[26] Nothing of relevance was raised by the parties before the Commissioner as to the matter of fairness as between Ms Smithers and other persons in a similar position.
[27] We are not satisfied our findings in respect of the matters in s.394(3)(a) to (f) of the FW Act constitute exceptional circumstances. Ms Smithers’ reasons for her delay in making her unfair dismissal remedy application cannot be regarded as unusual or extraordinary in circumstances where she advanced no credible reason for her failure to make her unfair dismissal remedy application to FWA between 8 and 21 January 2010. Nor is there anything in our findings in respect of the matters in s.394(3)(b) to (f) that is unusual or extraordinary.
[28] Accordingly, we quash the Commissioner’s decision 13 and order14 of 14 May 2010 and decline to allow Ms Smithers the necessary further period to make her unfair dismissal remedy application. Her unfair dismissal remedy application is dismissed. An order15 giving effect to our decision is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
J. Broomhead, for Cheval Properties Pty Ltd t/as Penrith Hotel Motel.
B. Soszyn, solicitor, for Janette Smithers.
Hearing details:
2010.
Sydney:
August, 25.
Endnotes:
1 Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, [2010] FWA 3701.
2 Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, PR997128.
3 Acts Interpretation Act 1901 (Cth), s.36.
4 Exhibit 1.
5 Transcript of 23 April 2010 in Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel Motel, U2010/6000 at PN29 and PN56-57.
6 Ibid at PN66.
7 Exhibit 1.
8 Transcript of 23 April 2010 in Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, U2010/6000 at PN 70.
9 Exhibit 1.
10 Ibid.
11 Transcript of 23 April 2010 in Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, U2010/6000 at PN70.
12 (1936) 55 CLR 499.
13 Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, [2010] FWA 3701.
14 Smithers v Cheval Properties Pty Ltd t/a Penrith Hotel-Motel, PR997128.
15 Cheval Properties Pty Ltd t/as Penrith Hotel Motel, PR501781.
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