Amy Mccullough v Garrett Hospitality Pty Ltd
[2022] FWC 2196
•18 AUGUST 2022
| [2022] FWC 2196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amy Mccullough
v
Garrett Hospitality Pty Ltd
(U2022/5077)
| COMMISSIONER WILLIAMS | PERTH, 18 AUGUST 2022 |
Application for an unfair dismissal remedy
Ms Amy Mccullogh (the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Garrett Hospitality Pty Ltd (the respondent).
Ms Mccullogh’s application says she was notified of her dismissal on 4 November 2021 and the dismissal took effect that day. This application was made on 5 May 2022.
The application has been made more than 21 days after the dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Consequently, the Commission’s staff wrote to the applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in his case.
The applicant provided a response by email.
The respondent in its ‘Form F3 Employer response’ objects to the applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The applicant’s reason for the delay
In her application the applicant explains the reason for the delay was that she had recently been made aware of the position being refilled, and been informed she should have been offered another suitable position.
In her application she says the reason for the dismissal was that the position was redundant, and she was no longer needed.
In her response to the Commission’s correspondence the applicant explains that she became aware of new information after the cut off period. When she was first made redundant, she wanted to believe that there was no ulterior motive for the decision. After becoming aware of a replacement, under a slightly different title, being paid through a different venue within the company, she can only assume that the decision was made due to the fact she had approached (via email, phone call and in person) Ron Jones, HR Consultant, that she felt she was being bullied by the General Manager, Helen Regan.
She says she had never been warned of concerns regarding her work performance, and not long before the redundancy was commended more than once on her efforts in her role.
Considering the explanation provided by the applicant, both in her application and in response to the Commission’s correspondence, the fact that sometime after her employment ended another person was employed with a different title and through a different venue is not an exceptional circumstance nor is the fact that the applicant due to this development now assumes the decision to dismiss her was made for other reasons.
Even if it was the case that the Commission accepted this explanation as an acceptable reason for delay, the applicant has not demonstrated that this reason explains all of what is a lengthy delay in the applicant making her application.
Consequently, I am not satisfied that on the evidence before me that there were exceptional circumstance nor was there an acceptable reason for the delay.
Did the applicant first become aware of the dismissal after it had taken effect?
The applicant became aware of her dismissal on the day it took effect.
Action taken to dispute dismissal
The applicant has not, other than through this application, taken action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
In her application the applicant says the position she had held was refilled twice within six months.
She says the position was refilled within a matter of weeks but paid through the Tradewinds payroll and that the second replacement started on 28 March 2022 paid through the Rottnest Island Hotel payroll.
She was never counselled or warned and was not offered another suitable role: for example, duty manager. She says there had been written and verbal conversations with human resources regarding bullying by the general manager.
The respondent submits that it reviewed its overall administrative requirements in the area of on-boarding and determined that alternative staffing requirements were needed across a number of venues to support the main HR recruitment role based at the Tradewinds Hotel (on the mainland).
The company determined that a range of administrative efficiencies were necessary to enable a more effective HR management process. This coincided with a range of other initiatives regarding staff surveys and exit interviews.
As a consequence, the company determined that having the role at Rottnest Island was no longer an efficient and effective use of company resources, particularly the need for staff accommodation to support the busy operation, which is extremely limited on Rottnest Island. This was the only venue where such a role operated. The redundancy decision was based on a restructure of operational functions at that point in time.
The company engaged a senior HR practitioner on a 3 day per week contract to support the HR recruitment role. The occupant of this position was based at Tradewinds and also travelled to the Island.
Subsequent to the departure of that person, the company once again reviewed the needs of the business and engaged a person with recruitment experience who continues to support the HR recruitment role and who provides support and assistance across a range of HR functions. The continuation of changes at Rottnest Island has resulted in that person undertaking work there as well as at the Tradewinds hotel on behalf of other properties as well.
The respondent submits the role currently reports to the Group Talent & Culture Manager and continues to be a commuting role that is based on the mainland whilst servicing the Rottnest Island Hotel.
In an instance like this, where the Commission is considering only whether or not the applicant should be allowed an extension of time to file her application, the Commission does not embark on a full hearing to consider the merits of the applicant and respondent’s cases.
There clearly is a difference of opinion between the applicant and the respondent as to the genuineness of the applicant’s redundancy, which cannot be determined on the information currently before the Commission. Consequently, I view the merit of the application in this instance as a neutral consideration.
Fairness as between the person and other persons in a similar position
There is no information before the Commission regarding fairness between the applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the applicant to persuade the Commission that a further period should be allowed for her to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR744925] to that effect will now be issued.
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