WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES NICOLE STEIN

APPLICANT

-v-

CARE OPTIONS INC

RESPONDENT

CORAM COMMISSIONER J H SMITH

HEARD MONDAY, 4 JULY 2005

DELIVERED TUESDAY, 9 AUGUST 2005

FILE NO. APPL 346 OF 2005

CITATION NO. 2005 WAIRC 02292

CatchWords Termination of employment - Harsh, oppressive and unfair dismissal - Application referred outside of 28 day time limit - Relevant principles applied - Application granted - Industrial Relations Act 1979 (WA) s 27(1)(a), s 29(1)(b)(i), s 29(3), s 29AA and s 29AA(2); and Workplace Relations Act 1996 s 170CE(1)(a)

Result Order made to extend time

Representation 

Applicant Mr G McCorry (as agent)

Respondent Mr S O’Hehir (as agent)

Reasons for Decision

1          This is an application under s 29(3) of the Industrial Relations Act 1979 (“the Act”) for an extension in time for filing an application under s 29(1)(b)(i) of the Act by Nicole Stein (“the Applicant”) to claim that she was harshly, oppressively or unfairly dismissed by Care Options Inc (“the Respondent”) on Friday, 10 December 2004. 

2          The Western Australian Industrial Relations Commission’s (“this Commission”) file records that the Applicant filed her application on 31 March 2005.  The time for bringing an application under s 29(1)(b)(i) of the Act expired on 7 January 2005.  It follows, therefore, that the application was filed 83 days out of time.

3          The Applicant is Dutch.  Her first job in Australia was with the Respondent as an Activities Officer.  The Applicant’s role was to plan, implement and monitor regular activities for children and young adults with intellectual and acquired disabilities.  In carrying out her job, she was required to attend activities which were generally scheduled in the evening and from time to time on weekends. 

4          The Applicant’s terms and conditions of employment were set out in a written contract of employment, which was executed by the Applicant on 3 August 2004 and by Janice Cutting, the Respondent’s Manager Program Delivery (Exhibit 1).  After the Applicant commenced employment, Ms Cutting went on long service leave and Ms Alison Taylor acted in Ms Cutting’s position.  The express terms of the contract of employment provided that the Applicant’s terms and conditions of employment in respect of several conditions were to be governed by the provisions of a Federal award, namely the Social and Community Services – Western Australia Award 2002 [AW815319] (“the SACS Award”). 

History of Events that Occurred Following the Termination of the Applicant’s Employment

5          On Friday, 10 December 2004, the Applicant’s employment was terminated.  On that day she sought advice about bringing a claim for unfair dismissal.  When seeking advice she provided information that her contract of employment stated that her employment was covered by the SACS Award.  As a result of the advice given to her, she was provided with documents to complete and file in the Australian Industrial Relations Commission (“the AIRC”).  On the same day she was dismissed, the Applicant also sought to challenge the dismissal and arranged to meet with the Respondent’s General Manager, David Bates, to request that he review the decision.  The Applicant met with Mr Bates on Tuesday, 14 December 2004 and was subsequently informed by Mr Bates on Thursday, 16 December 2004 that the decision to dismiss her stood.  Upon receiving that advice the Applicant immediately filed an application in the AIRC pursuant to s 170CE(1)(a) of the Workplace Relations Act 1996 (“WR Act”) claiming that the Respondent harshly, unjustly or unreasonably terminated her employment.  A conciliation conference was held by the AIRC on Monday, 31 January 2005.  At the conference a claim for overtime was raised on behalf of the Applicant.  The Respondent subsequently investigated the claim and when doing so, received advice that it was not bound by the provisions of the SACS Award.  The Respondent then informed the Applicant that it intended to make an application to dismiss the application in the AIRC for want of jurisdiction by asserting that the Applicant was not covered by a Federal award or agreement.  The Respondent filed a motion to dismiss the AIRC application on 4 February 2005.  In accordance with directions made by the AIRC, the Respondent filed its outline of argument in relation to this issue on 2 March 2005 and the Applicant’s agent filed an outline of submissions in reply in a document dated 7 March 2005.  The matter was listed for hearing in respect of the jurisdictional objection on 17 March 2005.  On 30 March 2005, Deputy President McCarthy issued a decision upholding the jurisdictional argument raised by the Respondent and dismissed the Applicant’s application.  On the day following the decision given by Deputy President McCarthy, the Applicant filed her application to bring an application for unfair dismissal out of time in this Commission. 

The Applicant’s Evidence about the Circumstances of the Termination of Her Employment

6          The Applicant reported to the Respite Services Coordinator.  In turn, six support workers reported to the Applicant.  The position of Respite Services Coordinator was held by Dianne Birditt.  Six weeks after the Applicant commenced work for the Respondent, Sandra Daniels commenced to act in Ms Birditt’s position.  From that time onwards the Applicant reported to Ms Daniels.

7          Pursuant to the Applicant’s contract of employment, she was employed for a three month probationary period.  During the probationary period the Applicant received a verbal warning which was reduced to writing.  The Applicant testified that the circumstances that led to the warning related to the attendance of two clients at a new sports group on Thursday nights.  On Thursday, 23 September 2004, two clients were running late.  She telephoned the client’s parents and was informed by one of the parents that the clients were late coming home from work and would be unable to attend the group on time.  The Applicant says that she told the parent that she was willing to wait for the clients so they could go to the event.  Apparently, the parent provided a written complaint to Ms Taylor, complaining that the Applicant had been rude.  The Applicant testified that she never meant to be rude.  She later telephoned the family and apologised. 

8         The Applicant says that after she received the warning her working environment was uneventful until the week before her employment was terminated, when the Applicant had a dispute with one of the support workers, Gillian Ayling.  Ms Ayling regularly purchased coffee, tea and cookies for the clients for a Saturday meeting.  The Applicant asked Ms Ayling for receipts for the purchases several times but Ms Ayling did not produce them.  On Friday, 3 December 2004, the Applicant spoke to Ms Ayling again and asked for proper receipts so the purchases could be accounted for.  The Applicant testified that Ms Ayling became very angry and said, “Who do you think you are?  You’re half my age.”  The Applicant says that she was stunned by Ms Ayling’s response. The Applicant immediately spoke to Robyn Haney, the Respondent’s Business Manager.  The Applicant says that Ms Haney tried to calm Ms Ayling and suggested that they go on the planned outing and deal with the issue the following week. 

9         The Applicant was next rostered to work on the following Tuesday.  On Tuesday, 7 December 2004, she spoke to Ms Daniels about the dispute with Ms Ayling.  Ms Daniels challenged her about speaking to Ms Haney about the matter.  The Applicant says that Ms Daniels told her that Ms Ayling had made a complaint about her (the Applicant) and Ms Daniels assisted Mr Ayling to take it “further up”.  I understand the Applicant’s evidence in relation to this issue to mean that Ms Daniels intended to process Ms Ayling’s complaint through the Respondent’s grievance procedure.  On the following day, the Applicant attended a course about challenging behaviours. 

10      On Thursday, 9 December 2004, Ms Daniels spoke to the Applicant at 9:00 am and asked her if she could do the shopping for the barbeque, do the run sheets and told the Applicant that she was working that night.  The Applicant told Ms Daniels that she was not rostered to work that night and that she was not working.  The Applicant says that Ms Daniels “put her finger in her face”, told the Applicant that she was the coordinator and “she” (the Applicant) had to do as she was told.  The Applicant told Ms Daniels that she was going to see Ms Haney.  The Applicant says that she spoke to Ms Haney who told her that Ms Daniels could not ask her on that morning to work that night.  The Applicant worked for the remainder of the day.  During the day she ascertained that there were sufficient support workers to cover the activities for that evening.  The following day the Applicant was not rostered to work but went into the office for the office staff Christmas party.  When she arrived, Ms Taylor walked into her office and asked to speak to her with Ms Haney.  When they convened, Ms Taylor told her that her probationary period had been extended.  The Applicant told her it had not been extended.  Ms Taylor handed her a termination letter.  The termination letter was dated 10 December 2004 and was signed by Ms Taylor and stated as follows:

“Dear Nicole,

As you are aware, there have been quite a few occasions recently where the need has arisen for either myself or the Family Support and Recreation Co-ordinator Sandra Daniels to speak with you in relation to complaints and concerns raised by parents, clients and staff.

Unfortunately, many of our suggestions for improvement have gone unheeded, and your inappropriate behaviour has continued.  This issue was addressed with you in a meeting held on 23rd September 2004, and consequently you received a verbal warning.

Since this time, your Co-ordinator has continued to receive complaints, and your inappropriate behaviour has escalated to insubordination.  Yesterday, your direct supervisor, Sandra Daniels, requested that you work the evening activity with the Family Support group.  You flatly refused.  This type of behaviour will not be tolerated in Care Options, and thus your employment is hereby terminated immediately.

Your final pay and entitlements will be calculated and paid next week in the normal payrun; and we ask that you return all Care Options keys, phone, manuals and program material in your possession.

Yours sincerely,

Alison Taylor
Acting Programs Manager

(Exhibit 3)

11      The Applicant says that apart from the one complaint arising out of the telephone call on 23 September 2004, she was unaware of any other complaints about her.  She also says that no issues about her performance had been raised with her.  The Applicant says that after she received the letter she was escorted to her office, asked to hand in her keys and her mobile telephone.  She asked if she could delete her personal file from the computer but was not allowed to do so.  She also asked if she could send an email to her colleagues to say that she was leaving but she was not allowed to touch the computer.  She was then escorted out of the office.  The Applicant did not attend the Christmas party.  On the same day, she telephoned the Respondent’s General Manager, Mr Bates and asked to meet him to discuss her termination.  He agreed and a meeting was arranged for Tuesday, 14 December 2004.  On Monday, 13 December 2004, the Applicant emailed Mr Bates.  In her email she said, “The reason I could not work was because I do not have enough contract hours to cover the shift as I have not been working on Thursday nights for months, because Sandra Daniels asked me to work Wednesdays and Thursdays in the office.  To my understanding there was enough staff for that night and I was not needed.  If Sandra Daniels would have contacted me the day or night before I would have been able to make a chance [sic] of plan.”  (Exhibit 5)

12      When the Applicant met with Mr Bates on Tuesday, 14 December 2004, Mr Bates told her that he had not looked at her file until that morning, so he could not give her an answer but he was willing to listen to her side of the story and he did so.  After she recounted her version of events, he told the Applicant he would speak to Ms Taylor and Ms Daniels and would get back to her before the weekend.  On Thursday, 16 December 2004, Mr Bates spoke to the Applicant and told her that he was not going to revoke the decision to terminate her employment. 

The Respondent’s Evidence

13      Mr Bates testified that after having lengthy discussions with Ms Taylor and Ms Daniels, he reached the conclusion that, after being asked to attend an evening recreation function the Applicant had refused point blank to attend.  He says that this refusal was the culmination of a whole series of unsatisfactory events.  Consequently, he decided that the Applicant’s refusal to work was an act of serious misconduct which justified her dismissal. 

14      Mr Bates says that Ms Haney did not have any authority or control over the Applicant and Ms Haney’s role as Business Manager, was an administrative human resources liaison role.  He said, however, that Ms Haney had prepared the Applicant’s contract of employment. 

15      Mr Bates also testified that attending the AIRC and this Commission, in relation to this matter, had taken up a substantial amount of his time. 

16      When cross-examined, Mr Bates conceded that prior to the AIRC proceedings in respect of this matter, there was a previous matter in the Federal Court involving a manager where it was contended on behalf of the Respondent during those proceedings that the SACS Award applied to the Respondent’s employees. 

Submissions

17      On behalf of the Applicant, it is argued that it would be unfair not to make an order to extend time to the Applicant for filing an application out of time, pursuant to s 29(3) to the Act.  This submission is made on the basis that the cause of the delay in lodging the application was principally due to the actions or inactions of the Respondent, in that it took 52 days after the termination of the Applicant’s employment to raise the jurisdictional issue in the AIRC and it took a further 30 days to disclose the basis of its argument in written submissions filed in the AIRC on 2 March 2005.  The Applicant also says that there is a very good reason for her delay in lodging the application in this Commission.  In particular, it is contended on behalf of the Applicant that pursuant to s 29AA of the Act, she could not lodge an application which could be heard and determined by this Commission once she had lodged an application in the AIRC for relief in respect of the termination of her employment.  Further, the Applicant points out that pursuant to s 29AA(2) of the Act, the jurisdiction of this Commission could not be enlivened until Deputy President McCarthy dismissed the application in the AIRC.  In addition, it is contended that when the Applicant’s claim is assessed in a rough and ready way, it is plain that her claim has merit as she received no counselling or warning prior to the termination of her employment.  The Applicant also says there is no evidence of any prejudice to the Respondent if the application for an extension of time is granted. 

18      The Respondent opposes the application for an extension of time.  Firstly the Respondent says there was an inordinate and lengthy delay by the Applicant in filing the application in this Commission.  In particular, it points out that the application was not lodged until 111 days after the Applicant’s employment was terminated.  The Respondent says that it is entitled to certainty in the management of its business and should not be asked to defend a decision that was made such a long time ago.  The Respondent also says that the Applicant has demonstrated insufficient cause for this Commission to exercise its discretion to accept the matter out of time.  As to the matters before the AIRC, the Respondent says that the Applicant should have sought professional advice about her claim before she filed the application in the AIRC.  Further, the Respondent contends that once the notice was given that the Respondent intended to challenge her application in the AIRC on jurisdictional grounds there was no effort by the Applicant to discontinue the application in the AIRC and to lodge a claim in this Commission.  The Respondent also submits that significant expense has been incurred by the Respondent in relation to the proceedings in the AIRC and in this Commission.  The Respondent says that it will suffer prejudice by incurring further significant expenses if the application to extend time to file the application for unfair dismissal out of time is accept by this Commission.  As to the merits of the Applicant’s claim, the Respondent says that her dismissal was justified as the Applicant failed to comply with a lawful and reasonable order which constituted serious misconduct.

Conclusion

19      After hearing the parties on 4 July 2005, I informed them I would make an order extending the time to bring the application to 31 March 2005.  I provided the parties with brief reasons and undertook to provide them with more detailed reasons for decision.  These are those reasons.

20       In Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683, Heenan J with whom Steytler J agreed held at [74] that the principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, should be applied when this Commission is considering whether to accept a referral of a claim for unfair dismissal out of time under s 29(3) of the Act. Marshall J in Brodie-Hanns v MTV Publishing Ltd (op cit) set out these principles when considering whether to extend time to bring an application as follows:–

"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant.  It will show that the decision to terminate is actively contested.  It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."

21       In relation to fairness, Heenan J in Malik v Paul Albert, Director General, Department of Education of Western Australia (op cit) after citing the forementioned principles went on to observe:–

"I accept that the concept of fairness is central to a decision whether or not to accept an application under s 29 which is out of time but, with all respect, I cannot accept the submission which was put in this case that it is fairness to the applicant which is either the sole or principal concern.  Fairness in this situation involves fairness to all, obviously to the applicant and to his or her former employer, but also to the public interest and to the due and efficient administration of the jurisdiction of this Commission which should not be burdened with unmeritorious stale claims."

22       Whilst the merits of the Applicant's claim may or may not be relevant, Steytler J at [25], in Malik v Paul Albert, Director General, Department of Education of Western Australia (op cit), observed:–

"The Commissioner is empowered to accept a late referral if it would be 'unfair' not to do so and, while an assessment of the merits 'in a fairly rough and ready way' (see Jackamarra v Krakouer (1998) 195 CLR 516 at [9]) will often be an important consideration, there is nothing in the words of s 29(3) which imports any obligation, on the part of an applicant, to establish any degree of merit (and it should not be overlooked, in this regard, that the Commission is given broad powers to dismiss a matter summarily under s 27(1)(a) of the Act).  It is, of course, difficult to imagine that it would ever be unfair to an applicant to deny him or her the right to lodge a referral out of time where it was positively shown that the applicant had no prospect of success."

23      Having considered all the evidence, I am of the opinion I should exercise my discretion to grant the application to extend time to file an application for unfair dismissal out of time.  While special circumstances are not necessary, I am satisfied that the prescribed period should be extended.  Although the prima facie position is that the time limit should be complied with, I am satisfied that the Applicant has provided an acceptable explanation for the delay which makes it equitable to so extend.  Firstly, the contract of employment raises an argument that the SACS Award applied to the Applicant’s employment.  Whether that was by way of statute or by contract may not be apparent to someone who is not a qualified lawyer or industrial agent, or indeed, if they are so qualified.  On the facts before Deputy President McCarthy, his reasons reveal the point whether the Applicant’s terms and conditions of employment were governed by a Federal award was arguable (Exhibit 6).  Further, I am satisfied that the argument raised by the Respondent in the AIRC is not something a person in the position of the Applicant would be aware of when she filed her claim in the AIRC.  Secondly, the Respondent’s agent conceded in opening that it was not until after the conciliation conference in the AIRC on Monday, 31 January 2005 that the Respondent was aware that it could raise an argument that the SACS Award did not apply.  Further, it appears there was no notification of the Respondent’s grounds of the argument until 8 February 2005 and the detail of that argument was not provided to the Applicant’s agent until the 2 March 2005.  By this time, the time for bringing an application for unfair dismissal in this jurisdiction had expired.  Once the Applicant’s application in the AIRC was dismissed she immediately lodged an application in this Commission.  Accordingly, I am satisfied that the Applicant has provided an acceptable explanation for the delay in bringing an application in this Commission. 

24      In relation to the second criteria addressed by Marshall J in Brodie-Hanns v MTV Publishing Ltd (op cit), I am satisfied that the Applicant took immediate steps to challenge the termination of her employment.  On the day her employment was terminated, she telephoned Mr Bates and arranged to meet with him about the termination of her employment.  As to the issue of prejudice to the Respondent, no real prejudice has been raised before me.  Even if the expense of defending the application in the AIRC can be taken into account in relation to prejudice, any prejudice that arises can in a sense be said to be caused at least in part by the representations made by the Respondent in the contract of employment. 

25      As to the merits of the Applicant’s claim, whilst I have not made any assessment as to whether the Applicant is likely to succeed in a hearing on the merits of her claim, I am satisfied in a rough and ready way that the claim cannot be said to be without any merit whatsoever.  If the Applicant’s evidence is accepted at its highest, a finding could be made that she did not receive any counselling or warning about her unsatisfactory performance prior to the termination of her employment.  Further, on her evidence it is arguable there were defects in the process which could lead to a finding that the Applicant was not provided with procedural fairness.  Even if the Respondent is to argue that the subsequent enquiry by Mr Bates cured any defects in procedural fairness that occurred prior to the dismissal, there is an argument that the enquiry by Mr Bates may have been incomplete.  There was no evidence given that Mr Bates spoke to Ms Haney.  Ms Haney’s evidence may be relevant because the Applicant gave evidence that she was told by Ms Haney that she did not have to work on the night in question.  Further, even if Mr Bates’ enquiry could be said to have cured all defects relating to procedural fairness, when considering whether the termination of employment was harsh, oppressive or unfair, this Commission may have to turn its mind as to whether the penalty of summary dismissal was justified.  Whilst I make no judgement about the strength of that argument, it is an argument that could be raised on the Applicant’s evidence. 

26      For the reasons set out above, I determined that I would make an order extending time to bring an application.  In accordance with that finding, I will make that order.