1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Yvonne Khan
v
Anglican Schools Commission T/A Swan Valley Anglican Community
School
(C2017/5104)
COMMISSIONER RIORDAN SYDNEY, 18 DECEMBER 2017
Application to deal with contraventions involving dismissal.
[1] Ms Yvonne Khan (the Applicant) was employed as a Café Manager by the Anglican
Schools Commission t/a Swan Valley Anglican Community School (the Respondent) between
26 April 2016 and 30 June 2017.
[2] The Respondent submitted that it had restructured its Café operations in order to
integrate its School Based Apprenticeships program for hospitality students into the Café.
This restructure resulted in the creation of a new Co-ordinator role which combined the
functions of the Café Manager and the Hospitality Teacher. The Applicant did not have the
requisite teaching qualifications for this role but, on 20 June 2017, was offered the position of
second in charge of the Café on the same salary, hours of work and conditions of employment
that she currently enjoyed. After being given the option of taking up the new role or taking
voluntary redundancy, the Applicant chose to take up the voluntary redundancy offer.
[3] The Applicant submitted that the restructure was going to significantly change her role
to the extent that her hours would be cut to only 12 hours per week. Further, that there was
never any mention of a “second in charge” role, a role which she would have been keen to
accept. The Applicant also claimed to have the same qualifications as the person who was
appointed to the Co-ordinator position.
[4] The Applicant’s employment was terminated on 30 June 2017 at which time she was
paid 4 weeks’ pay in lieu of notice, 4 weeks redundancy pay and her accrued entitlements.
[5] The Fair Work Act 2009 (the Act) provides that a general protections application made
pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took
effect1. The Applicant’s application was lodged on 13 September 2017, some 54 days outside
the statutory timeframe.
[6] The Fair Work Commission (FWC) can allow an Applicant an extension of time to
lodge their application in exceptional circumstances. In assessing whether there are
[2017] FWC 6057
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 6057
2
exceptional circumstances the Commission must have regard to the matters set out in s.366(2)
of the Act, which provides:
(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.
[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star
Group2 where the Full Bench said:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
[8] Leave was granted in accordance with section 596(2) of the Act to allow the Applicant
to be represented by Mr Graham McCorry from Labourline and for the Respondent to be
represented by Mr Michael Jensen from Lavan Legal.
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Section 366(a) Reason for the delay
[9] The Applicant was employed by the Respondent by way of a fixed term contract.
Relevantly, the Applicant’s contract states:
“Dear Yvonne,
Letter of Offer
…
This letter sets out the basis of your employment and should be read in conjunction
with the Independent Schools’ Employee Award…
…
SALARY
Your salary will be at Level 3.1 of the Independent Schools’ Administrative and
Technical Officers’ Award (1993)…”3
[10] The Independent Education Union of WA, United Voice and The Anglican Schools
Commission (ASC) registered the Anglican Schools Commission Staff Enterprise Agreement
2015 in the Western Australian Industrial Relations Commission (WAIRC) on 21 March
2017. Relevantly, clause 4 of the Agreement states:
“4 - Scope of Agreement
(1) This Agreement shall apply to those employees employed by the ASC in Western
Australia in the classifications referred to in clause 17 – Salary Rates who are
members or are eligible to be members of the Union party to this agreement.
(2) This Agreement shall be read in conjunction with the following Awards and where
there is any inconsistency between this Agreement and the relevant awards, the
Agreement will prevail to the extent of the inconsistency;
(a) Independent Schools Administrative and Technical Officers Award 1993”
[11] After receiving advice from the WAIRC and the WA Department of Commerce, the
Applicant submitted an unfair dismissal application to the WAIRC within the 28 day statutory
timeframe of the WA Industrial Relations Act.
[12] In correspondence to the Registrar of the WAIRC, on 22 August 2017, Mr Jensen
advised:
“The Registrar
Western Australian Industrial Relations Commission
Level 17, 111 St Georges Terrace
Perth WA 6000
Cc:
Ms Yvonne Khan
78 **** *****
WA 6055
[2017] FWC 6057
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Dear Registrar
Khan v Swan Valley Anglican Community
1 I act for the Swan Valley Anglican Community School (School).
2 I have today filed the School’s Form 5 Notice of Answer and Counter Proposal
in the above matter.
3 Notwithstanding that the School has raised a jurisdictional argument it
recognises that there are benefits for both parties if an amicable solution
can be achieved.
4 Therefore, should the Commission consider it beneficial, the School agrees to
participate in a conciliation conference presided over by a Commissioner of the
WAIRC before the jurisdictional issue is determined. The School reserves its
rights with respect to the jurisdictional argument to be resolved at a later
date if required.
Regards
Michael Jensen
Senior Associate”4
(my emphasis)
[13] Ms Khan engaged Mr McCorry as her representative on 7 September 2017. It is not in
dispute that Mr McCorry contacted the Respondent’s representative, Mr Jensen, on 8
September 2017 to enquire about that the Respondent’s jurisdictional coverage. The WAIRC
conciliation was held on 11 September 2017 but proved to be unsuccessful.
[14] Mr McCorry submitted that whilst he could not find evidence that the ASC was a
national system employer, on the bases of his long standing professional relationship with Mr
Jensen, he advised the Applicant to discontinue her unfair dismissal proceedings before the
WAIRC and lodge a general protections application (the current proceedings) in the FWC.
The Applicant’s general protections application was subsequently lodged on 13 September
2017 at 9:09pm. (AEST)
[15] An employee is entitled to rely on the information provided to them by their employer.
The Applicant was of the view that her employment was under the jurisdiction of the WAIRC
due to:
a) the contract provided to her by the Respondent which explained her conditions of
employment and identified her applicable Award and Enterprise Agreement; and
b) advice that she received from both the WAIRC and the Western Australia
Department of Commerce.
[16] In Oszoy v Monstamac Industries Pty Ltd5 (Oszoy), Deputy President Gostencnik held:
“[21] The fact that the application was lodged only one day late does not take the
matter further. Whether the delay is one day or one year, there must be an acceptable
[2017] FWC 6057
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explanation for the delay. Whilst the length of delay may be relevant to questions of
prejudice, it does not provide an explanation nor does it render the circumstances
exceptional. The absence of an acceptable explanation for the delay weighs against the
Applicant in this case.
[29] The statutory time limitation applicable to the exercise of a person’s right to make
an unfair dismissal remedy application that is in place, is an expression of
Parliament’s intention that rights must be exercised promptly within a particular time
so as to bring about certainty. Time limitations seek to balance one person’s right to
bring an action, against another person’s right to know with certainty that questions
about actions that they have taken will be agitated within a particular period, otherwise
that right is lost.”
[17] The Deputy President’s decision was appealed by the Applicant, Mr Ozsoy. In
determining this Appeal the Full Bench6 held:
“[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay
in lodgement. The delay is the period beyond the 21 day period specified
in s.394(2)(a) after which the application was lodged—one day in the current case.
The explanation for the delay is the explanation as to why the application was lodged
beyond the 21 day period and goes to circumstances from the time of the dismissal
until the lodgement explaining that delay. An applicant needs to provide a credible
reason for the whole of the period that the application was delayed.7”
[18] The Applicant was entitled to act on the basis of the Respondent’s commentary in the
correspondence of 22 August 2017, ie, the Respondent will return to the issue of jurisdiction
if the conciliation conducted by the WAIRC was unsuccessful. Following the unsuccessful
conciliation, the Applicant short circuited the legal process by withdrawing her unfair
dismissal application at the WAIRC and filing her general protections application with the
FWC. The process adopted by the Applicant negated the need for a jurisdictional hearing
before the WAIRC, saving both the Applicant and Respondent time and money. Whilst it has
taken the Applicant two days to make her application following the unsuccessful conciliation,
I am satisfied that this timeframe fits within the boundaries of what is reasonable.
[19] In Poulton v Rail Infrastructure Corporation8, a Full Bench said:
“[42] Whilst all matters are determined on their own facts, and our finding as to a
acceptable explanation is made on the basis of the particular circumstances recorded
above, we note that there are other decision of the Commission which have accepted
as an acceptable explanation for delay, late lodgement caused by a reasonably based
application in another jurisdiction, where prompt action had been taken to initiate a
s.170CE application, once the absence of jurisdiction in the State tribunal has been
established.”
[20] Following the obiter in Ozsoy and Poulton, I find that the Applicant has provided a
credible reason for the entire period leading up to her general protections application. The
existence of an acceptable explanation for the delay weighs in favour of granting an extension
of time to the Applicant in this matter.
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s394.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s394.html
[2017] FWC 6057
6
Section 366(b) action taken to dispute the dismissal
[21] The Applicant made an application to the WAIRC for an unfair dismissal remedy on
28 July 2017 based on the wording of her contract and the advice from the WAIRC and the
Labour Relations Division of the WA Department of Commerce. This application clearly
shows that the Applicant was disputing her termination which I regard to be a positive
consideration in this proceeding.
Section 366(c) prejudice to the employer
[22] The Respondent submitted that it will suffer prejudice if this matter proceeds to a
hearing on the basis that both a current employee and the Principal will not be employed by
the Respondent in 2018 and that these employees will be required to seek leave from their
new employer in order to give evidence in this matter. I regard the inconvenience to these two
witnesses as a neutral consideration in this proceeding.
Section 366(d) merits of the application
[23] In Kornicki v Telstra-Network Technology Group9 the Commission considered the
principles applicable to the extension of time discretion under the former section 170CE(8) of
the Workplace Relations Act 1996 (Cth). In that case the Commission held:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.”10
[24] I note the Respondent’s submission that the Applicant was advised of the restructure
of her position on 20 June 2017. Despite being given the opportunity to think about her
options, the Applicant elected to accept a redundancy payment, which took effect on 30 June
2017.
[25] The Applicant submitted that the Respondent has breached section 345 of the Act by
deliberately misleading the Applicant in relation to her industrial rights. Section 345 of the
Act states:
“Section 345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading
representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another
person.
Note: This subsection is a civil remedy provision (see Part 4-1).
[2017] FWC 6057
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(2) Subsection (1) does not apply if the person to whom the representation is made
would not be expected to rely on it.”
[26] Without the benefit of detailed evidence and the cross examination of witnesses, I
regard this issue to be a neutral consideration in this proceeding.
Section 366(e) fairness as between the person and other persons in a like position
[27] I am not aware of any other employee who is in a similar position to the Applicant. I
have taken this into account.
Conclusion
[28] I am satisfied that the Applicant was unaware of her jurisdictional coverage at the time
of her termination due to the advice of the Respondent at the commencement of her
employment. The Applicant filed an unfair dismissal application in the jurisdiction to which
she had been advised. The Applicant simply followed the wording of her contract as well as
the advice from the WAIRC and a WA Government Department in lodging her application in
the WAIRC.
[29] I am also compelled by the wording of the correspondence from the Respondent to the
WAIRC Registrar that, whilst the Respondent was raising the existence of a jurisdictional
objection, it was prepared to delay this argument until the WAIRC had undertaken its
conciliation process.
[30] I find that the Applicant filed her general protections application in a prompt and
expeditious manner following the unsuccessful WAIRC conciliation.
[31] I find that the reasons stated above to be out of the ordinary, unusual, special and
uncommon. I find that the Applicant’s late application was due to the existence of exceptional
circumstances.
[32] The Applicant’s time to lodge her general protections application is extended to 13
September 2017.
[33] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR597826
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by
reason of the operation of the Acts interpretation Act 1901 (Cth) s.36(1) (item 6-where a period of time ‘is expressed to
begin after a specified day’ the period ‘does not include that day’).
[2017] FWC 6057
8
2 [2011] 203 IR 1
3 Witness statement Yvonne Khan Annexure A
4 Witness statement Yvonne Khan Annexure G
5 [2014] FWC 479
6 [2014] FWCFB 2149
7 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403 at pp. 408‒409.
See also Ms Monica Marshall v Home Care Plus [2013] FWC 5299 at para 29.
8 PR966972
9 Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C
10 Ibid
http://www.austlii.edu.au/au/cases/cth/FWC/2013/5299.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282010%29%20197%20IR%20403?stem=0&synonyms=0&query=ozsoy
http://www.austlii.edu.au/au/cases/cth/FWAFB/2010/7251.html
