Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251
Director-General of Education and Training and Bond [2009] NSWIRComm 40
Director-General of Education v Suttling [1987] HCA 3
(1987) 162 CLR 427
Source
Original judgment source is linked above.
Catchwords
Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251Director-General of Education and Training and Bond [2009] NSWIRComm 40Director-General of Education v Suttling [1987] HCA 3(1987) 162 CLR 427Gardner v Secretary of Treasury (Department of Justice - Corrective Services NSW) [2014] NSWIRComm 52Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186
Herron v McGregor (1986) 6 NSWLR 246 at 254
Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139
McDiarmid v Shoalhaven City Council [2013] NSWIRComm 1024
Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
Parker v Department of Human Services [2009] FWA 1638
Sarah Lunn v Department of Justice [2006] AIRC 756
Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311
Judgment (18 paragraphs)
[1]
Mr P Ginters of Counsel with Ms C Schipp for the respondent
File Number(s): IRC 51 of 2014
[2]
Judgment
This matter concerns an application for relief in relation to unfair dismissal. The applicant is Mr Stephen York. The respondent employer is the Director - General of Education and Communities. The application was filed on 31 January 2014.
On 12 December 2012, the applicant signed a Temporary Teacher Engagement Notice (the Notice) for Brewarrina Central School (the School) for the period commencing 4 February 2013 to December 2013 inclusive.
In November 2013, the applicant asserts the School principal, Mr Peter Morgan, verbally offered him a teaching position for the 2014 school year. The applicant accepted the offer. He subsequently commenced a short period of workers' compensation.
On 28 November 2013, Mr Morgan sent an email to the applicant stating:
Your current contract expires at the end of this year. I wish to advise you that I will not be offering you a new contract for 2014. I am notifying you now so that (you) have time to make the necessary arrangements.
The applicant claims he became aware of Mr Morgan's email on 3 December 2013. Upon his return to work on 12 December, the applicant maintains that he handed Mr Morgan a letter confirming his understanding that he had both been offered and had accepted the verbal offer made in November 2013 for a teaching position in 2014. Mr Morgan denied receiving this particular letter.
The applicant contended his acceptance of Mr Morgan's offer was binding. Accordingly, Mr Morgan and the respondent had breached "the binding agreement previously agreed to." The respondent denied any offer of further employment was made to the applicant.
The respondent contends the applicant's employment was governed by the Teaching Service Act 1980 (the TS Act). At all material times while engaged as a teacher at the School, the applicant was employed as a temporary employee pursuant to s 50 of the TS Act.
The respondent contends there was no dismissal by the employer. Rather, the applicant's temporary contract of employment for the 2013 school year - a fixed term contract - came to an end as a consequence of the effluxion of time. The respondent had no legal obligation to renew the applicant's temporary contract of employment.
The respondent opposed the application on jurisdictional grounds. It contends that the application was filed 22 days out of time and the reasons relied upon by the applicant for that delay are not sufficient to allow the Commission to exercise its discretion pursuant to s 85(3) of the Industrial Relations Act 1996 (the IR Act) and accept the application. The respondent further submits the Commission has no jurisdiction to hear the application on the grounds that the applicant was not dismissed from his employment.
This matter was set down for Conciliation and Directions before his Honour, Deputy President Harrison on 21 February 2014. At the conclusion of that conference the matter was stood over pending advice from the parties concerning settlement discussions. Parties were directed to advise the Commission of the outcome of negotiations by the close of business on Friday, 28 March 2014. On 7 April 2014, the parties advised settlement discussions had been unsuccessful and sought to have the matter arbitrated. Directions for arbitration were subsequently issued. The matter was allocated to the Commission as presently constituted on 30 April 2014 for arbitration commencing on 31 July 2014. On 31 July 2014, the Commission consented to a request that the matter be set down for arbitration 8 October 2014.
[3]
Issues for Determination
There are two jurisdictional issues that arise for determination by the Commission:
1. Was the application out of time? If so, is there a sufficient reason to accept the out of time application?
2. Was the applicant dismissed - the element of dismissal is necessary to invoke the jurisdiction of the Commission.
[4]
Statutory Context
Section 85 of the IR Act makes it mandatory that applications under s 84 must be made within 21 days of the dismissal. Subsection (3) provides discretion to accept an application which is out of time if there is a sufficient reason to do so.
Section 85 of the IR Act relevantly states that an application for unfair dismissal :
85 Time for making applications
1. [No later than 21 days after dismissal] An application under this Part must be made not later than 21 days after the dismissal of the employee.
2. …
3. [Commission may accept application lodged out of time] The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:
1. the reason for, and the length of, the delay in making the application, and
2. any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and
3. the conduct of the employer relating to the dismissal.
The TS Act governs the employment, conduct and performance of teachers engaged by the respondent. Section 50 of the TS Act relevantly provides:
50 Temporary employees
1. The Secretary may employ a person who, in the opinion of the Secretary, has the appropriate qualifications to carry out work in the Teaching Service for a particular period.
2. A person employed under this section may be employed on a full-time, casual or part-time basis.
3. A temporary employee is a member of, but does not hold a position in, the Teaching Service.
4. (Repealed)
5. A person employed under this section:
1. shall not be employed for a period exceeding 12 months but the employment may be extended from time to time for a further period not exceeding 12 months on each occasion if the Secretary certifies that the extension is necessary in the public interest, and
2. may be dismissed at any time.
1. (Repealed)
(emphasis added)
In addition to placing a 12 month limit on employment, subject to an extension at the discretion of the Secretary, s 50(5)(b) provides that a temporary employee may be dismissed at any time.
[5]
Applicant
The applicant's evidence was set out in a document headed, "Response to Outline of Submissions Re Jurisdiction." [1] The applicant submitted he considered the date of his alleged threatened dismissal was 3 December 2013 when he "received" the email from Mr Morgan:
I have received your WorkCover certificate re leave for the next two weeks. I had hoped to speak to you personally but given your leave will do it by email.
Your current contract expires at the end of this year. I wish to advise you that I will not be offering you a new contract for 2014. I am notifying you now so that (you) have time to make the necessary arrangements
A number of factors have led to this decision including changes to permanent staff arrangements and the skill set we will require all temps next year. In particular, the capacity to take a class teaching load.
I will be happy to discuss this further when you return to school.
Following Mr Morgan's email, the applicant returned to work from his absence on workers' compensation on 12 December 2013. The same day, he contends he gave a letter to Mr Morgan seeking a meeting to discuss his employment. According to the applicant, Mr Morgan refused to meet with him to clarify the intent of the 28 November 2013 email.
The applicant also contended his application was lodged late because there was no end date on the Notice. The applicant submitted the Commission should consider the "exceptional circumstances" surrounding his late application:
Reasons for delay
The applicant submitted the application was late on the grounds that there was "no response from the Principal and no clear date as to the dismissal." [2]
When did I first become aware of the alleged dismissal?
The applicant stated without an exact date of dismissal, "it is difficult to know positively when I was informed of dismissal." [3]
Was there any action taken by the person to dispute the dismissal?
The applicant submitted he had sought further details concerning his dismissal as set out in the email to Mr Morgan dated 3 December 2013. He also sought a meeting with Mr Morgan to address his concerns, and had made a request for the Deputy Principal, Ms Cathy Clark to be in attendance.
Prejudice to the employer
The applicant submitted there was no evidence of any prejudice to the respondent caused by the out of time application. He also considered that he would suffer "both economically and personal damage if the out of time application is denied." [4]
The merits of the application
The applicant contended the "merits of the application support that action by Mr Morgan was unfair, unreasonable and a denial of procedural fairness." [5] He further contended Mr Morgan had failed to follow due process in not meeting with him as requested.
[6]
Ms Cathy Clark
Ms Clark was Deputy Principal of the Brewarrina Central School at the time Mr Morgan discussed 2014 employment prospects with temporary teachers, including the applicant.
Ms Clark stated the applicant approached her after his meeting with Mr Morgan in November 2013 and announced his 2014 role at the School would be "RFF teacher, STL and sport's coordinator." She recalled the applicant saying to her that Mr Morgan was happy with his enthusiasm and commitment to the School.
Ms Clark first became aware of the applicant's situation when he asked her on 12 December 2013 why he would not be employed in 2014.
In cross-examination, Ms Clark confirmed her understanding that the applicant would be offered RFF primary and sports coordinator in 2014. She further confirmed Mr Morgan did not tell her "directly" that the applicant would be offered a position in 2014.
[7]
Mr Peter Morgan
Mr Morgan is the principal of Brewarrina Central School. Mr Morgan summarised the applicant's various temporary contract engagements at the School as follows:
23 May 2011 to 20 December 2011;
1 February 2012 to 21 December 2012; and
4 February 2013 to 20 December 2013.
A copy of the applicant's Temporary Teacher Engagement Notice for the period 4 February to (20) December 2013 was annexed to his statement.
During 2013, the majority of the applicant's duties concerned individual and small group learning in class 1/2C with his partner, Ms Cathy Clark. Ms Clark was at that time Deputy Principal. He was also involved in sport support programs.
In November 2013, Mr Morgan held preliminary discussions with all temporary teachers, including the applicant about possible teaching roles and other options for the 2014 school year. In response to a high level of staff absence during 2013 and a serious outbreak of behavioural issues amongst students, Mr Morgan determined the School required staff in 2014 that were capable of undertaking student support and classroom teaching.
Mr Morgan met with the applicant in the last week of October 2013. No offer of a temporary contract was made. Rather, Mr Morgan discussed various "options and possibilities" with the applicant as he had done with all the other temporary teachers that he had interviewed. The applicant agreed during the meeting that "he was not equipped to take a class." In that regard, Mr Morgan recalled the following conversation with the applicant using words to the following effect:
Morgan: "I am meeting with all the temporary teachers to discuss options and possibilities for next year."
York: "I am enjoying working at the School, I think I have made valuable contributions in the sports arena, hopefully I can continue next year."
Morgan: "Yes, you have made some valuable contributions in that area, and I want to acknowledge that your enthusiasm for this program has contributed to its success."
York: "Yes, I do enjoy sport and see my abilities as lying in that area."
Morgan: "I am also exploring the options in a variety of roles including support teaching, relief from face to face, classroom teaching, day to day relief."
York: "I prefer the support role. I would not feel comfortable teaching whole classes or general relief whether RFF or daily casual."
Morgan: "We could perhaps explore an option of incorporating sport into RFF. It may or may not be possible."
York: "Yes I could possibly do that."
[8]
Mr Scott Dries
Mr Dries is the Senior Manager, Shared Service Centre (Wollongong) for the respondent. His role is to oversee the operations of the Centre which administers the payroll and leave provisions of the respondent's teaching staff.
It was Mr Dries' evidence that the applicant was employed from 4 February to 20 December 2013.
During the course of his employment, the applicant accrued a period of annual leave. A copy of the respondent's Conditions of Employment for Temporary School Teachers was set out under Annexure 'B' to his affidavit. Clause 16.8 of that document states:
Generally, vacation leave entitlements will be paid as leave during the relevant vacation periods via fortnightly pay instalments. Vacation leave paid this way will count as service.
Mr Dries stated the applicant's last day at school was 20 December 2013 and his vacation leave entitlement was paid consistent with the Director-General's Determination No 3 of 2009 and set out under Annexure 'C' to his affidavit.
Mr Dries explained vacation leave entitlements paid to teachers such as the applicant during the School vacation commenced and ended on the first and last days of the vacation period. Accordingly, the applicant's records were adjusted to show his service ended on 3 February 2013.
In cross-examination, Mr Dries confirmed the 'End In Date' to the notice appeared to be 18 December 2013 - however, the date had been crossed out. He further explained the date could have been crossed out by Service Centre Staff because it was incorrect and did not represent the end of term date.
[9]
Applicant
The applicant submitted the Notice does not mention the provisions of the TS Act.
The applicant sought to rely on the decision of the Commission as presently constituted in USU on behalf Paul Parker & Newcastle City Council re dismissal [2014] NSWIRComm 1012 to support the proposition that a contract that contains a right to terminate by either party on notice in accordance with the award is "inconsistent with a notion of a contract for a fixed or specified period of time." The applicant considered the application of s 50 of the TS Act had the effect of rendering the temporary engagement contract not of a fixed or outer limit nature.
The applicant submitted he should have been afforded an opportunity to challenge Mr Morgan's decision not to offer him employment in 2014. He also argued that a person on workers' compensation should be given a reasonable time to respond and lodge their application for unfair dismissal. He contended that between 19 December 2013 and 15 January 2014, "I don't know of too many government offices that are open. There's no place to seek information." The applicant subsequently acknowledged he downloaded a copy of the unfair dismissal application from the internet.
[10]
Respondent
At the outset, the respondent considered there was no dismissal on the grounds that the applicant's temporary employment contract expired by the effluxion of time.
The respondent submitted the effective date of the applicant's "dismissal" was 20 December 2013, the last day of the 2013 school year. Given the application was required to be filed on 10 January 2014 and was subsequently filed on 31 January 2014, the application was filed 21 days after the applicant's "dismissal".
The applicant is "well aware of the Commission's unfair dismissal jurisdiction" and the fact that there are time limits within which an application can be brought. In that particular regard, the applicant had filed an unfair dismissal application on 17 May 2011 some 130 days late. The Commission dismissed that application and observed:
… there does not exist sufficient reason to have this claim accepted. [8]
He also lodged an application in 2009 more than two months late.
Mr Morgan's email sent to the applicant on 28 November 2013 made it clear that the applicant would not be offered a contract for the 2014 school year.
The respondent contended the applicant was employed under an "outer limits" contract that expired through the effluxion of time.
The respondent cited the decision of a Full Bench of Sarah Lunn v Department of Justice [2006] AIRC 756 in support of the proposition that when an outer limit contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer.
The respondent submitted the applicant signed the Notice on 12 December 2012. The relevant engagement form was completed. That engagement was regulated by the TS Act where s 50 states that without an extension granted by the Director-General in certain circumstances, the period of temporary employment cannot exceed 12 months.
The respondent referred to the High Court decision in Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 per Brennan J at 437 in support of the proposition there is a statutory basis - s 50 of the TS Act underpinning the employment of temporary teachers:
Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute:
see, for example, Gould v Stuart (1896) AC 575, at p 577; Carey v The Commonwealth [1921] HCA 54; (1921) 30 CLR 132, at p 137; Lucy v The Commonwealth [1923] HCA 32; (1923) 33 CLR 229, at pp 238,249,253.
However, the contractual nature of the relationship has not been universally accepted:
see, for example, Monckton v The Commonwealth [1920] HCA 3; [1920] HCA 3; (1920) 27 CLR 149, at pp 155,156; Lucy v The Commonwealth, at p 244; Geddes v Magrath; Morgan v. Geddes [1933] HCA 57; (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245, at pp 262,274; and cf. Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422, at p 440.
And sometimes an espousal of one view rather than the other has been avoided:
see, for example, Reilly v The King (1934) AC 176, at p 180; Kodeeswaran v Attorney- General of Ceylon (1970) AC 1111, at p 1118.
If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 527.
[11]
Is there sufficient reason for the Commission to exercise its discretion and accept the application lodged out of time?
Section 85(3) requires and restricts the Commission to have regard to the following factors when considering whether to exercise discretion to accept an out of time application:
1. the reason for the delay;
2. the hardship to the applicant if the application is rejected;
3. the hardship to the respondent if the application is not rejected; and
4. the conduct of the employer relating to the dismissal.
The applicant bears the positive burden of demonstrating that the circumstances and justice of the particular case require an extension of time: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J. It must follow that the statutory time limitation applicable to the exercise of a person's right under the IR Act to make an unfair dismissal application is an expression of Parliament's intention that rights must be exercised promptly and within the specified time. Otherwise that right may be lost.
In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, the IR Act does not define the term "sufficient reason ". In Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia (NSW Branch) (1993) 51 IR 186 the Full Bench observed at 190:
It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason".
In addressing the respondent's jurisdictional objection that the application was lodged out of time, the applicant has sought to address the relevant test required under s 394(3) of the Fair Work Act 2009 (Cth) which requires unfair dismissal claims to be brought within 21 days after the date of dismissal unless the Fair Work Commission is satisfied that "exceptional circumstances" warrant an extension of time.
The legal principles concerning the approach to be taken concerning out of time applications in this jurisdiction is well settled. In Director-General of Education and Training and Bond [2009] NSWIRComm 40, a Full Bench of the Commission observed:
14. The law applicable to applications such as the present is well settled. As the Full Bench observed in Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145 at [12] - [15]:
[12] ... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way:
"Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view."
[13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".
[14] To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.
[12]
Length of and reason for the delay
The Commission must have regard to the length of and reason for the delay. I also accept that the Commission should be prepared to accept that it may be appropriate in some circumstances to grant an indulgence in procedural matters to unrepresented persons.
In this matter, the applicant has made two previous unfair dismissal applications against the respondent and given the particular circumstances of those cases, should have been aware of the 21 day time limitation. The length of the delay is 22 days.
The applicant's stated reasons for the delay, including the fact that he had been on workers compensation, are insufficient in my view to attract the beneficial exercise of the Commission's discretion.
[13]
Hardship to the applicant
When the legislation so clearly sets out time limits on the lodgement of applications, the prima facie position is that there should be strict compliance with those time limits. Otherwise the time limit imposed so clearly by legislation would be defeated. In this matter, the applicant was responsible for his application being filed late.
The Commission's consideration of the relative strength of the applicant's case is relevant as it is a measure of the disadvantage he may suffer if an extension of time is not granted. Against that backdrop, the High Court in Brisbane South Regional Health Authority at 553 observed the enactment of a limitation period "may often result in a good cause of action being defeated."
The applicant contended he would suffer economically in the event the out of time application is rejected. However, in such circumstances, the applicant is in a position no different to other applicants who have failed to persuade the Commission that a sufficient reason exists for not lodging their application within the 21 day time limitation.
[14]
Hardship to the employer
The respondent has engaged legal representation with the associated costs. The respondent would incur further legal costs if an extension of time if the application was accepted.
[15]
Conduct of the respondent
I do not regard the respondent's conduct had any bearing on the lateness of the application.
In deciding this matter I have given consideration to the conduct of the respondent relating to the applicant's dismissal, all of the evidence and submissions of the parties before the Commission, the merits of the applicant's substantive application and his prospects of success. I am satisfied that the circumstances of this case when considered as a whole, with due regard to the balance of prejudice or hardship as between both parties, are insufficient to warrant the exercise of the Commission's discretion in favour of accepting the application lodged out of time.
[16]
Was the applicant dismissed?
The Commission is required to determine whether the applicant was dismissed by the respondent or, whether the applicant's employment ceased with the effluxion of time.
On the material before the Commission, the applicant prepared his response to the jurisdictional objection largely on the premise that he had been employed under a series fixed term contracts. The applicant was unaware that s 50 of the TS Act provided for dismissal at any time. He challenged that view.
The respondent submitted that there was no dismissal by the employer. Rather, the applicant's temporary employment contract came to an end as a consequence of the effluxion of time.
The decision in Lunn is authority for the proposition that when a contract for a specified period of time or an "outer limit" contract reaches its nominated end date, the contract terminates through the effluxion of time and there is and there is no dismissal by the employer. Unless the applicant was dismissed by the respondent, the Commission does not have the jurisdiction to deal with the application.
The Full Bench in Lunn determined the contract in question was not for a "specified period" because the contract provided that it could be terminated on notice during its term. Such a contract was an "outer limits" contract and termination occurred when the nominated end date was reached through the effluxion of time.
In Lunn, the applicant was employed as an articled clerk and later as a law officer under a series of contracts. The final contract covered the period 16 January 2005 through to 15 April 2005. On 24 March 2005, the applicant was informed that she would not be offered a new contract.
Despite the applicant's contentions that Mr Morgan had effectively promised him ongoing employment with a teaching position for the 2014 school year, a contention strongly denied by the respondent, no further Notice was executed by the parties.
A failure to offer re-employment does not amount to a dismissal. When an employee accepts employment for a fixed term, the employee must be taken to have consented to the position that the contract comes to an end on a specified day by the effluxion of time.
Attachment "A" to the applicant's submissions is the Notice signed by the applicant on 18 December 2012. The Notice states on page one that the duration of the applicant's temporary engagement was from 4 April to December 2013 inclusive. A date which appears to be 18 (December) had been crossed out. Relevantly, under "Terms of Engagement", the Notice states:
1. This notice confirms an offer and acceptance of engagement as a temporary teacher only for the period specified on page 1.
[17]
Endnotes
Exhibit 3
Ibid at page 8
Ibid at page 8
Ibid at page 8
Ibid at page 8
Ibid at page 11
Ibid at page 11
York v DET [2011] NSWIRComm 1054 at [30]
[18]
Amendments
10 June 2015 - Correct decision date to 5 June 2015
12 June 2015 - Add "conduct" after "respondent's" in para 96 and correct the wording of para 96.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 June 2015
The applicant submitted that if he had been afforded the meeting with Mr Morgan as requested in correspondence dated 12 December 2013, "I would have been informed in a clear and timely manner that I was not to be offered a new contract in 2014… and would have had 21 days from any such meeting to file an application for unfair dismissal." [6]
The applicant also asserted Mr Morgan had failed to inform him of any rights that he may "have to appeal his decision making process." [7]
The applicant referred to the decisions in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251 and Parker v Department of Human Services [2009] FWA 1638 to support the proposition that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors, although individually of no particular significance, when taken together are exceptional.
The applicant claimed he was engaged on a temporary employment contract - a fixed term contract with an end date of 3 February 2014. He had been engaged under a number of contracts and was unaware that s 50 of the TS Act applied to his employment. He further argued the Notice was ambiguous.
The balance of the applicant's statement dealt with the merits of his unfair dismissal. In a second statement in response to Mr Morgan's affidavit, the applicant stated there was "no conclusive ending date to the Temporary Teacher Engagement Notice." Accordingly, Mr Morgan's statement that the engagement ended on 20 December 2013, the last day of the School term, was incorrect.
The applicant challenged Mr Morgan's evidence that he was not offered employment for the 2014 school year. He recounted the conversation that he had with Mr Morgan at the time concerning his proposed role in 2014. The balance of the applicant's statement also concerned merit relevant to the substantive application.
The applicant was cross-examined on his Response to Outline of Submissions Re Jurisdiction document and a second document headed, "Applicant's response to affidavit of Peter Morgan dated 1 May 2014".
The applicant confirmed that prior to working at the School he had worked a number of temporary periods of employment with the respondent for "periods identified in a contract or agreement" of 12 months.
The applicant agreed that during these proceedings he had sought to rely upon his absence on workers' compensation due to an anxiety disorder in November and December 2013 for the delay in lodging his application. The applicant considered his WorkCover Certificate supported that he suffered anxiety and was therefore unable to file within time.
The applicant confirmed:
he became aware of Mr Morgan's email dated 28 November 2013 on 3 December 2013. He subsequently read the email;
he was medically unfit and on workers' compensation until his return to work on 12 December 2013; and
he had worked at the School from 12 to 20 December 2013.
The applicant suggested Mr Morgan's email advising him that he would not be offered work in 2014 was not clear:
… it wasn't clear because he (Mr Morgan) was happy to discuss this further.
The applicant acknowledged that he had not stated in his unfair dismissal application (Form 7A - Application for relief in relation to unfair dismissal) that a reason supporting the late application was because of a workers' compensation injury.
The applicant acknowledged that he had made two previous unfair dismissal applications against the respondent before the Commission.
The applicant was shown a copy of his unfair dismissal application that he filed on 3 June 2009 and subsequently listed for conciliation and directions in matter number IRC 820 of 2009. In response to questions 33 and 34 of that application, he acknowledged the application had not been filed within 21 days of his dismissal on 10 March 2008. The applicant subsequently set out reasons for that delay.
The applicant was also shown a copy of a further unfair dismissal application that he filed on 17 May 2011 (Matter number IRC 739 of 2011) in respect to an alleged dismissal on 17 December 2010. He agreed that his answers to questions 33 and 34 of the application also acknowledged it had been filed late and "exceptional circumstances" existed to support the delay in filing.
With respect to the application filed on 3 June 2009, the applicant claimed that he was unaware at the time the application was required to be filed within 21 days of dismissal. Moreover, the applicant also claimed that at the time he filed the 17 May 2011 application, he remained unaware of the 21 day time limit on the grounds that the respondent did not provide "any documentation to inform me I had 21 days…." The applicant subsequently acknowledged that the application was dismissed by Ritchie C in a decision dated 21 November 2011.
In response to questions that he had been on notice since June 2009 that an application must be filed with 21 days of dismissed, the applicant claimed that he did not understand the question put. He later acknowledged he was aware that a time limit applied - but "I did not know it was 21 days."
Mr Morgan set out the case in support of his decision to nominate four teachers for temporary contracts in 2014. A further four teachers were unsuccessful. Mr Morgan did not consider the applicant suitable for a temporary contract in 2014 for the following reasons:
First, he could only perform support work. He lacked the expertise to teach a full class. He acknowledged this himself. Secondly, he did not have the temperamental or the classroom management skills to take a full load. Thirdly, he worked almost exclusively in his partner's classroom as other staff were reluctant to have him in their classrooms. I understand that the reason for this was that Mr York was regarded as being aggressive, principally in circumstances where he lacked the capacity to do so and where there was a lack of trust between the School's secondary teaching staff and Mr York, which had reached the point where they were unwilling to work with him.
On 28 November 2013, Mr Morgan sent the applicant an email advising him that he would not be offered a temporary teaching contract in 2014. A copy of that email was set out in Annexure 'C' to his statement. Accordingly, the applicant's last working day was 20 December 2013.
Mr Morgan could not recall the applicant handing him a letter at or around 9:00am on 12 December 2013 and if he had been given the letter, he would have referred it to the Department in view of the tone and language used at the time by the applicant.
Mr Morgan recalled he received a letter from the applicant dated 22 January 2014 when he returned to school on 3 February 2014. That letter concerned Mr Morgan's "failure to contact me in regards to my teaching position at Brewarrina Central School for 2014". A copy of that letter was set out in Annexure 'E' to his statement. On 5 February 2014, Mr Morgan sent an email in reply to the applicant. Given the unfair dismissal claim lodged on 31 January 2014, Mr Morgan informed the applicant that the correspondence had been sent to the respondent's Legal Service's Directorate.
A copy of the letter the applicant contends he gave to Mr Morgan on 12 December 2013 was set out in Annexure 'F' to his statement. The applicant's letter read in part:
You have mislead and deceived me in your email dated 3 December 2013 in which you stated: "I wish to advise you that I will not be offering you a new contract for 2014. I am notifying you now so that you have time to make the necessary arrangements."
I bring to your attention not only did you offer me a position in 2014 but I accepted the position in your office in November 2013. There was no confusion in the offer and the acceptance of the position at Brewarrina Central School for 2014.
I discussed the new position with Deputy Principal after meeting with you and the Deputy Principal indicated that the RFF position and STL would be a positive step for the School.
At no time were there any comments or discussions that I would not be carrying out this position in 2014.
In cross-examination, Mr Morgan recalled meeting with the teachers in October / November 2013 to discuss employment issues. He also agreed that he met with the applicant at that time. However, Mr Morgan denied that he had offered the applicant a position in 2014.
Mr Morgan confirmed he sent an email to the applicant on 28 November 2013 but could not recall receiving any documentation from the applicant on 12 December 2013.
The respondent submitted the applicant had been employed in a temporary capacity on a number of occasions for a 12 month period. Further, Mr Morgan's email dated 28 November 2013 made it clear to the applicant that his current temporary contract would expire at the end of 2013 and he would not be offered a new contract for 2014. Shortly stated, the applicant was on notice that his temporary contract expired at the end of the year from 20 December 2013.
The respondent denies there was any oral contract in place. Any extension of the applicant's contract was required to be made consistent with s 50 of the TS Act.
In relation to Ms Clark's evidence, Mr Morgan did not tell her or the School executive that the applicant would be employed in 2014.
The applicant's claim that he should be granted an extension of time on the grounds that he was suffering a compensable injury was not put as a reason in his application. However, the relevant WorkCover Certificate only shows that the applicant had no capacity to work up until 11 December 2013. The applicant returned to work on normal duties on 12 December 2013.
The applicant sought to rely on a letter allegedly given to Mr Morgan on 12 December 2013 as a basis for his late application. Mr Morgan, to the best of his recollection, did not receive this letter. It was Mr Morgan's evidence that if he had received the letter, he would have remembered it and sought immediate advice from the Department.
The applicant stated in his application that the date of dismissal was 3 December 2013, the date he became aware of Mr Morgan's email sent to him on 28 November 2013. Accordingly, the application was 22 days late.
The respondent referred to the decision of Newall C in McDiarmid v Shoalhaven City Council [2013] NSWIRComm 1024 which set out the principles the Commission must consider when considering an out of time application.
The respondent submitted the applicant was employed under a "outer limits" contract. The outer limit was "nigh on 12 months" with a discretion under s 50 of the TS Act to terminate the contract within that 12 month period for any reason. Accordingly, there was no dismissal as the temporary contract expired by the effluxion of time.
The respondent referred to the decision of Boland AJ in Gardner v Secretary of Treasury (Department of Justice - Corrective Services NSW) [2014] NSWIRComm 52. In that case, the employer submitted there was no dismissal. The relevant Temporary Contract - a fixed term contract - came to an end as a consequence of the effluxion of time. At [20], his Honour observed:
Where a fixed term contract comes to an end by effluxion of time it is not a dismissal.
His Honour subsequently observed commencing at [28]:
28. In Smith, the Full Bench relevantly found as follows at 365:
We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s.245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s.245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J. in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal....
29. As the Full Bench recently observed in Robinson v Commissioner of Police [2014] NSWIRComm 35 at [76] - [77]:
The 1991 Act, in Pt 7 of Ch 3, contained the provisions relating to the protection of injured workers that now appear in Pt 8 of the WC Act. These provisions then made an appearance in Pt 7 of Ch 2 of the IR Act and remained in the IR Act until 2006. The IR Act was amended in 2006 to transfer the provisions of Pt 7 to the WC Act. The second reading speech in relation to the Industrial Relations Further Amendment Bill 2006 (Hansard, Legislative Assembly, 24 October 2006) seems to suggest that the reasons for the transfer was to avoid the potential effect of the Commonwealth Government's WorkChoices legislation overriding State law aimed at protecting injured workers.
It has generally been accepted since Smith (if not before) that a dismissal is "the termination of services by the employer without the employee's consent". Having regard to its historical cognate relationship to unfair dismissal provisions in successive legislation, there is no basis to believe the term "dismissed" in s 241 of the WC Act is used in any different sense.
30. An employer does not terminate an employee's employment, that is, "dismiss" the employee, when the employee's term of employment expires under a fixed term contract. Rather, the contract automatically terminates through effluxion of time.
31. Thus, where the employee is engaged under a contract of employment for a specified period of time, which is the case here, the contract of employment will terminate not at the instigation of the employer, but rather on the agreed end date of the specified period or automatically by effluxion of time. Accordingly, there was no "dismissal" of Mr Gardner by the respondent for the purposes of s 241 of the Workers Compensation Act.
The respondent submitted the reasoning of Boland AJ in Gardner supports the proposition that when an outer limits comes to its end, there is no dismissal for the purpose of s 84 of the IR Act.
The Commission should consider that given the applicant's familiarity with the unfair dismissal jurisdiction and the lack of any sufficient explanation for the application being filed late, there is no reason to extend time.
sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a
The rationale for imposing time limits on the filing of applications is that the respondent employer is entitled to know within a reasonable period of time whether the dismissal will be challenged and where challenged these matters need to be dealt with expeditiously.
The relevant statutory provision for the Commission's consideration is s 85. In exercising its discretion pursuant to s 85(3) of the Act to allow an out of time application to be made, the Commission is required to be satisfied that a "sufficient reason" and not "exceptional circumstances" has been made out.
In Smith and New South Wales Police Service (No 2) [2004] NSWIRComm 311 the Full Bench observed at paragraphs 25 and 26:
An application for relief from unfair dismissal pursuant to Part 6 of Chapter 2 of the Act has time of the essence. The initial obligation is upon the applicant to file his or her application within 21 days. The discretion to be exercised by the Commission under s 85(3) must be viewed within the framework of the legislative intention expressed by that requirement.
In considering the reason for delay, hardship to both applicant and respondent and the conduct of the employer, there may come a point when the length of delay outweighs in a substantial way other considerations.
In Herron v McGregor (1986) 6 NSWLR 246 at 254 McHugh JA observed:
The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James [1978] AC 297 at 329 ... Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively.
The principles associated with the legislative intention to fix time limits were also canvassed by McHugh J in Brisbane South Regional Health Authority at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated ... The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case...But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension.
In Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 the Full Bench stated at [12]:
... a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success.
I have considered the submissions and evidence of both the applicant and respondent concerning the question whether the applicant was dismissed. The applicant's contract came to an end on 20 December 2013, the last day of the School term by the effluxion of time. The element of dismissal necessary to invoke the jurisdiction of the Commission does not exist.
I order that application IRC 51 of 2014 is dismissed.
JD Stanton
COMMISSIONER