Amanda Scott v Davies Automotive Equipment Pty Ltd T/A Davies Automotive Equipment

[2016] FWC 4657

[2016] FWC 4657

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Scott
v
Davies Automotive Equipment Pty Ltd T/A Davies Automotive Equipment
(U2016/6189)

COMMISSIONER LEE MELBOURNE, 5 AUGUST 2016

Application for relief from unfair dismissal – extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 May 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Amanda Scott (the Applicant) claims that she was unfairly dismissed from her employment with Davies Automotive Equipment Pty Ltd (the Respondent). The application was lodged by the Applicant on 13 April 2016.

[2] The matter was listed for Extension of Time Conference/Hearing before me on 20 May 2016. There was sworn evidence provided by the Applicant. It is not in dispute that the application was lodged 77 days out of time. There is no dispute regarding the date that the dismissal took effect, that being 7 January 2016.

[3] The Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order granting a remedy and sets out various requirements for an application to be made. This application has to be made within 21 days after the dismissal took effect. The Commission can grant a further period for the application to be made under section s.394 (1) if it is satisfied that there are exceptional circumstances, taking into account the various factors set out in s.394 (3) of the Act, being:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[4] As the application has been lodged out of time, the matter can only proceed if a further period for the application to be made under section s.394 (1) is allowed taking into account the factors in s.394(3) of the Act.

[5] The Applicant's evidence was the only evidence before me. The Applicant's evidence was that, in summary:

• she was employed as an administrator from 5 August 2013 until 7 January 2016;



• that there was not a job description for the job;



• that there were three teams of staff in the organisation;



• the work involved various work of an administrative type;



• that she was a member of the Australian Services Union (ASU).

[6] I note there was various other evidence led which does not have much bearing in relation to the hours that the Applicant worked, her pay rates and so on. Relevantly, in terms of the Applicant's evidence, she gave evidence that before Christmas 2015 at the Respondent's workplace, Mr Brett Walker (Managing Director for the Respondent) removed her access to the Cloud for the MYOB system. On the previous holiday breaks there was no removal of access to the Cloud. The Applicant asked Mr Walker why access had been removed to which he said “I'm just closing it down for the Christmas break”. The Christmas break was from 23 December 2015 to 7 January 2016.

[7] On 7 January 2016 the Applicant was at work at the normal time of 08:00am and when she tried to turn on the computer she could not get access, she went to say “good morning” to Mr Walker, that he was in a meeting with a lady from a HR company and then after some time that lady and Mr Walker asked to meet with her. At that meeting Mr Walker handed the Applicant a redundancy letter and said that as of that moment she was no longer required, that she would get two weeks payment in lieu of notice and two weeks ex gratia payment. The Applicant's evidence was that she was in a great deal of shock, packed up her things and left. There was no discussion about what would happen to the work and she assumed that they would not be employing anyone to do her work.

[8] On 25 March 2016 (which happened to be Good Friday) the Applicant was working at the Pakenham Sports Club where she came into contact with Mr Peter Shipcott, an employee of the Respondent. The Applicant had a discussion with Mr Shipcott and her evidence was as follows:

“I asked how he was and how things were going. I asked who was booking the service work now. This had been one of my main jobs. Pete said a new guy named Dave was employed and was doing the booking work and working full time in the office now. He said he was the service manager. He said that he was doing basically what I was previously doing. He did not say how long he had been there. He said he had been brought over from a dealership.”  1

[9] It is the knowledge gained at that time that essentially the Applicant submits is the reason that she then, from that time, held a belief that she was not genuinely redundant. The action that she took was on Tuesday 29 March 2016 (the Tuesday after the Easter break) she contacted the Australian Municipal, Administrative, Clerical and Services Union (the ASU) Union Organiser, Mr Terry O'Loughlin. Mr O'Loughlin returned the Applicant’s call on 31 March 2016 and he asked her to get an organisation chart giving proof of the structure. The Applicant was not able to obtain the chart. It was not clear on the evidence what action the Applicant took to obtain the chart.

[10] On cross-examination the Applicant indicated that she did not have any difficulty contacting the Respondent on other occasions, however, she did not want to have any dealings with the Respondent and chose not to contact them about the chart. In any case, subsequent to that in the following week, the Applicant contacted the law firm Slater and Gordon who she claims advised her that she was not affiliated with the ASU and she did not earn enough money to be represented. The Applicant’s evidence is that she spoke with a Receptionist at Slater and Gordon. 2 Ultimately, her evidence was that they advised her to lodge an extension of time application. She then further sought their assistance with lodging the extension of time application where they indicated that they would not assist with that and that she would need to do it herself. The following week, on 12 April 2016, the Applicant contacted the firm Just Relations, she received a timely response and the application was lodged on 13 April 2016.

[11] There was no evidence from the Respondent in this matter. The Respondent has made various submissions, however, I accept the unchallenged evidence of the Applicant as to how she sees the state of things in terms of the alleged redundancy. The question is whether they are exceptional circumstances in this case. The term “exceptional circumstances” was dealt with by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 3 and relevantly in that decision at paragraphs 13 and 15 the Full Bench set out the meaning of “exceptional circumstances”. I will apply the principles in Nulty in determining whether there are exceptional circumstances in this matter.

[12] When considering the reason for the delay and other matters, the key issue in this matter is essentially whether the Applicant had a reasonably held belief that she was not genuinely redundant such that this would weigh towards me considering that, absent any other acceptable reason for the delay, that being such that it would constitute exceptional circumstances.

[13] Mr Dircks referred me to the decision Cross, Thompson and Payne v The Bananacoast Community Credit Union (Cross) 4 and relevantly in that decision, which has a number of parallels with this case and I agree with Mr Dircks on that, at paragraph 51 Deputy President Sams said as follows:

“[51] In my view this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine and the belief is based on plausible information may constitute exceptional circumstances for the purposes of section 394(3) of the Act. It follows that I reject Ms Paterson's submissions that a dismissal cannot be unfair based on matters that occur after the dismissal took effect.” 5

[14] The last sentence is not relevant material for consideration here but I agree that that is an approach that can be taken in these sorts of matters.

[15] In a decision that the Commission as presently constituted, made in August 2015, Ashlee Clarke v Lionel Samson Sadleirs Group (Clarke) 6, also dealing with analogous circumstances to those here, where an Applicant was considerably out of time in lodging an application but then later became aware she may not be redundant. It was put in that case that there was a reasonably held belief that she was not redundant and relied on that circumstance as a basis for seeking an extension of time.

[16] In that case I referred to a decision of Commissioner Wilson in Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia (Aristodemou) 7 in which Commissioner Wilson found:

“[19] In context, the reason for Ms Aristodemou’s delay in making her application for an unfair dismissal remedy may be a factor that resolved in her favour in the event the substantive merits of her application are also in her favour.” 8

[17] I characterised this in my decision of Clarke in the following words:

“[23] In other words, whether the Applicant (in becoming aware of facts that give rise to a concern that a redundancy is not genuine, sometime after the redundancy has occurred) could be considered to have an acceptable reason for the delay, is contingent on whether there is substantive merit to the claim that the redundancy is not a genuine redundancy.” 9

[18] I agreed with and adopted the approach of Commissioner Wilson approach in that case and I do the same in this case. I note that the decision in Clarke was also subject to appeal and not overturned. 10

[19] Applying those principles in this matter, I will now turn to the various criteria of section 394(3) of the Act.

[20] The reason for the delay in this matter is entirely attributed to the Applicant becoming aware that the report of redundancy was not a genuine redundancy and that awareness came via a meeting with Mr Shipcott in the Pakenham Sports Club on 25 March 2016 (Good Friday).

[21] I note that the circumstance that seems clear enough in this case is that the Applicant's description of the way in which the redundancy occurred indicates that there was absolutely no consultation whatsoever with the Applicant and that much was made clear in her evidence.

[22] It seems common ground that the Applicant was covered by the Clerks Private Sector Award 2010, that much was submitted by Mr Dircks and he indicated, and he was correct, that this was conceded in the answer to Question 4E in the material supplied by the Respondent in the “Respondent’s Outline of argument: Objections” filed 16 May 2016. That being the case, there was a requirement to consult a major workplace change. Redundancy is a major workplace change. The Respondent provided the following in response to Question 4F:

“Considering true consultation is considered to be providing the employee with a genuine opportunity to change the employers mind. It was considered that:

• As the operational requirements for the business would not be influenced or changed by the employee, it was believed that any consultation would be seen as merely paying lip service to the process. The outcome of the Administrator position being redundant would not change.



• Once notified, the applicant would have been denied access to the computer systems to mitigate risk et cetera…” 11

[23] The third dot point provided at Q4F in the Respondent’s submissions is not really relevant to the point I wish to make which is that it seems quite clear that the consultation obligations were not followed and that being the case, and that is the submissions from the Respondent - a jurisdictional objection to this application that it is a genuine redundancy would fail.  It is not a genuine redundancy if there is not consultation and to that extent the application has significant merit.

[24] Considering that though in the context of the reason for the delay, that is a matter that was known to the Applicant at the time she was dismissed, and that is not a factor that she became aware of at some later time. It is evident that the manner in which she was dismissed was perfunctory and badly managed (that is an understatement) but these were factors that the Applicant was well aware of and was entitled to take action on at that very time. The difference though is the information that she became aware of on 25 March 2016, which is information that she did not have at that time.

[25] The unchallenged evidence of the Applicant is that Mr Shipcott told her that there was someone there doing basically what she was previously doing and in the absence of anything else, I am entitled to consider that to be grounds for finding that there was a reasonably held belief that she was not redundant, notwithstanding the various submissions that the Respondent has made contesting that.

[26] Were the matter to lay there, there would be a very strong reason for finding that there was an acceptable reason for the delay. The difficulty in this matter is that there is a period of 19 days after 25 March 2016 before an application was filed. I have carefully considered the timeframe after 25 March 2016 and certainly I have no difficulty finding that it is apparent that the Applicant instructed Mr Dircks to file on 12 April 2016 and he filed, not unreasonably, the next day on 13 April 2016.

[27] The period of time I have difficulty with is the period up until 12 April 2016 and the first part of that period where the Applicant contacted the ASU and spoke with Mr O'Loughlin. Based on her evidence, the reaction and service that she got from the ASU was not particularly valuable and seems to have been directed at a request to her to get an organisational chart from the Respondent.

[28] Notwithstanding that, the evidence of the Applicant is that she did not instruct the ASU to take any action to lodge an application but, be that as it may, she certainly took some steps on the first day that was not a public holiday after Easter to take some action.  Now subsequent to that, it is in the following week that the Applicant made contact with Slater and Gordon, which is less than satisfactory in terms of an acceptable explanation.  It is clear on the evidence that at no time the Applicant understood that Slater and Gordon were lodging an application her behalf.  There is really no reason that I can see in the evidence that an application could not have been lodged in that week.

[29] To be clear, the week commencing 28 March 2016 to 31 March 2016, with the Applicant making a phone call to Mr O'Loughlin on 29 March 2016, and there being a slowness in him to respond until 31 March 2016 and the associated “mucking around” of the ASU in that week, I am satisfied that this is acceptable. However, the difficulty I have is in the week commencing 4 April 2016 through to 12 April 2016, as there was ample opportunity to lodge an application during that time. That is the difficulty I have with finding that there is an acceptable reason in this case.  In these matters there has to be an acceptable reason for the entire period and I cannot be satisfied that that is evident here.

[30] I took the same approach in the matter of Clarke. In that matter there was an additional seven day delay. I was not satisfied there was an acceptable explanation in that matter. I have considered, as I was asked to by Mr Dirks to consider, the case of Cross. In that case I note that there was an 11 day delay from the time that the Applicants became aware of the additional circumstances which gave them rise to consider that their redundancies were not genuine. Relevantly though in that case, His Honour said at paragraphs 54 - 55 the following:

“[54] The fact is that once the applicants had been provided sufficient information to confirm their suspicions, they took immediate action to challenge their dismissals through their Union. This is a highly relevant consideration in this matter. Once having done so, I do not accept that they can be burdened with any criticism for any subsequent delay in filing their applications.

[55] In this respect, it was not disputed that it was a further 11-12 days before their applications were filed. Mr Peddie [for the Union] made appropriate concessions in this respect. He submitted that it took some time to request and obtain further information… While there might be legitimate criticism as to the further delay of 11-12 days, it is certainly not a criticism that can be sheeted home to the applicants. This a telling factor in the exercise of my discretion under s 394(3) of the Act.” 12

[31] It is a distinguishing point in this matter. In essence His Honour went on to find that representative error on behalf of the Union was the reason for that additional delay. I cannot find and it has not been submitted (and it would not have been appropriate to do so) on the evidence, I do not consider, that there was representative error.

[32] The established decisions on this point really turn on the actions of the Applicant. When the Applicant has given clear instructions to a representative to do something, in particular lodge an application on their behalf, and they have failed to do so for whatever reason and they should be held blameless, that is absolutely an acceptable reason. However I am not satisfied on the evidence that those circumstances exist here. Having traversed all of that ultimately I am not satisfied that there is an acceptable reason for the delay.

[33] There is no dispute in relation to s.394(3)(b) of the Act, whether the person first became aware of the dismissal after it had taken affect. The Applicant was aware on the day in question. That is not in dispute. This is a neutral consideration.

[34] Whether there was any action taken by the person to dispute the dismissal, the Applicant's submission is that there is no matter relevant to s.394(3)(b) or s.394(3)(c) of the Act. In terms of s.394(3)(c) of the Act, it is not evident that there is, beyond the actions that started after Easter 2016, any action taken by the person to dispute the dismissal. There is nothing in this factor that weighs in favour of granting the application. The actions of the Applicant in contacting the ASU and Slater and Gordon are certainly matters that go to action to dispute the dismissal, but I have dealt with those factors in terms of when I was considering the reason for the delay. I note again that action was taken, but well after the time that the application was due to be filed.

[35] In terms of prejudice to the employer, 77 days is a fairly significant time. One might describe it as a long delay. It has been found in previous authority that a long delay gives rise to a general presumption of prejudice. It has also been held that the employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to evidence. There is no evidence from the employer in this matter. I consider this factor to be a neutral consideration.

[36] As to the merits of the application, it would seem clear enough that the jurisdictional objection that this is a genuine redundancy would fail inasmuch as the Respondent's own submissions are that they failed to consult under the Act, and the fact that they did not do so means that it would be most likely to be held to not be a genuine redundancy. Of course that does not mean that ultimately the case would be found to be one where the dismissal was harsh, unjust and unreasonable, but it may. It is certainly strongly arguable that it would, so for those reasons the case does have significant merit.

[37] There is the issue about whether the position is no longer required. As Mr Dircks submitted, we were not in a position to embark on a detailed consideration and examination of the case, but it is certainly arguable that the circumstances submitted by the Respondent, that is that the position was no longer required and was redundant, may not be held to be the case. I agree there is merit on the consultation point, however, as I stated earlier, this was a factor that was known at the time of the dismissal and there was no reason why the Applicant could not take action at that time and within the 21 day period to contest the dismissal on that basis alone.

[38] Overall I am satisfied that the application has considerable merit. A consideration for me is whether it is of such sufficient merit that it will overcome what I consider to be an unacceptable reason for the delay and it has to be weighed against all the other factors to which I am to have regard in making a decision in this matter.

[39] In respect to the last factor, I have considered that against the approach I took in Clarke. In that case, I quoted from paragraph 38 of Commissioner Wilson’s decision in Aristodemou where he made the following observation:

“[38] Broadly speaking, it can be expected that the Commission may be disposed to favourably consider an extension of time in the circumstances of a person finding out sometime after the date that they were dismissed for reasons of redundancy, that the reasons for their dismissal may be questionable. However, coupled with that proposition would be an expectation that the merits of the person's case had significant strength. It would be unlikely that the Commission automatically grant an extension of time to a person questioning the reasons for that redundancy merely because they wished to do so.” 13

[40] I agree with and I adopt Commissioner Wilson's approach in this matter. Considering all the factors, as I am required to do, as to whether there is an acceptable reason for the delay, I have found for the reasons that I have dealt with earlier that there is not. That weighs against granting the extension. The criteria under s.394(3)(b), s.394(3)(c) and s.394(3)(d) of the Act are neutral considerations. As to s.394(3)(e) of the Act, the merits of the application, as I have indicated I think that the matter has considerable merit.

[41] In regards to s.394(3)(f) of the Act fairness between the person and other persons in a similar position, it would be fair to grant an extension of time if satisfied that the merits of the person's case had significant strength to grant an extension of time, but again only if it was appropriate to do so taking into account all the matters set out at s.394(3(a) to (f) of the Act.

[42] Having considered the matter and balancing up those competing objectives, I have determined that albeit on a fine balance, I am not satisfied that there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. On balance, while I do think that the application does have significant merit, I am not satisfied that the merit is of a level that would cause me to overcome my concern about the acceptable reason for the delay. It is for those reasons that that application is dismissed.

[43] Taking into account all of the relevant factors I am not satisfied that there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. I refuse to grant the extension of time and the application is dismissed.

[44] An order giving effect to this decision has previously been published in PR580622.

COMMISSIONER

Appearances:

G Dircks for the Applicant

Ms Fowler for the Respondent

Hearing details:

2016.

Melbourne.

20 May.

Final written submissions:

16 May 2016

 1   Exhibit 1, Statement of Amanda Elizabeth Scott, [35] – [39]

 2   PN83

 3   Nulty v Blue Star Group (2011) 203 IR 1

 4   [2012] FWA 7681

 5   [2012] FWA 7681 [51]

 6   [2015] FWC 5371

 7   [2014] FWC 8384

 8   [2014] FWC 8384 [19]

 9   [2015] FWC 5371 [23]

 10   [2015] FWCFB 7611

 11   Respondent’s Outline of Argument: Objections filed 16 May 2016, [4F]

 12   [2012] FWA 7681 [54] – [55]

 13   [2014] FWC 8384 [38]

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