Amy Rutherford v Anne Street Partners Holdings Pty Ltd T/A Anne Street Partners
[2015] FWC 2170
•27 MARCH 2015
| [2015] FWC 2170 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amy Rutherford
v
Anne Street Partners Holdings Pty Ltd T/A Anne Street Partners
(U2015/361)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 27 MARCH 2015 |
Application for relief from unfair dismissal.
[1] Ms Amy Rutherford alleged that the termination of her employment by Anne Street Partners Holdings Pty Ltd on 17 December 2014 was unfair.
[2] Her unfair dismissal application lodged on 28 January 2015 was not made within 21 days of the date of the dismissal.
[3] At the hearing, I granted permission for Anne Street to be represented by a legal practitioner. It was submitted that the matter being a jurisdictional matter involved some complexity. While extension of time matters are generally not complex in this case the interrelationship between the reasons for the delay and the merits added complexity. I determined, given Ms Rutherford did not object to permission being granted, that representation would enable the matter to be dealt with more efficiently.
[4] On 17 November 2014, Ms Rutherford was advised that her position as National Manager Advice was to be made redundant. She was advised that her employment would terminate on 17 December 2014 and that she was not required to attend the office during that time. She was advised that she may be allocated duties during this time to be performed away from the office. She was told there were no vacant positions to which she could be redeployed.
[5] Ms Rutherford had initially been employed as a Senior Paraplanner and had been promoted to the position of National Manager Advice in May 2014.
[6] On or about 7 December 2014, a Senior Paraplanner resigned. In addition, another Senior Paraplanner was to take extended leave. Consequently in mid December 2014, Anne Street advertised for a Senior Paraplanner and that position was offered to the successful applicant on 5 January 2015 to commence a “3 month contract - which will be reviewed at the end of this period.” That position was located in Sydney.
[7] Ms Ragda Harmouche, People & Culture Business Partner of Anne Street, gave evidence that no consideration was given to offering Ms Rutherford this position.
[8] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.” [Endnotes not reproduced]
(a) the reason for the delay;
[10] Ms Rutherford gave evidence that she did not find out until 27 January 2015 that a position of Senior Paraplanner had been filled. She sought legal advice and lodged her application the next day.
[11] It is unusual for redundant employees to find that their employer filled a position which they could have performed in such a short time after he or she has been made redundant. Depending on the merits of the case this explanation for the delay weighs in favour of granting an extension of time.
(b) whether the person first became aware of the dismissal after it had taken effect;
[12] Ms Rutherford was aware of the dismissal when it took effect. In fact she had a month’s notice of the dismissal. However given the particular circumstances of this case this is a neutral criterion.
(c) any action taken by the person to dispute the dismissal;
[13] Ms Rutherford accepted that this was a genuine redundancy at the time. It was her evidence that she asked about redeployment but accepted the advice of Anne Street that there were no positions. This criterion is neutral.
(d) prejudice to the employer (including prejudice caused by the delay);
[14] Anne Street submitted that it would suffer prejudice because of the “longer period than normal it would take for the unfair dismissal application to proceed.” It also submitted that it would suffer prejudice if the Commission were to order reinstatement as it has already filled the position of Senior Paraplanner. It did not submit that it would suffer any special prejudice to its evidentiary position.
[15] I do not consider that any prejudice arising from any remedy the Commission might order is relevant to a consideration of whether Ms Rutherford should be granted an extension of time.
[16] Even accepting that there is some slight prejudice to Anne Street because the matter will take longer than normal to hear and determine, I do not consider this weighs against the granting of an extension of time.
(e) the merits of the application;
[17] There is a contest between the parties about whether Ms Rutherford’s position was redundant. There is also a dispute about whether there was a position to which Ms Rutherford could have been appointed to prior to her termination date.
[18] Anne Street submitted that the position filled in January 2015 was not within Anne Street’s contemplation until after Ms Rutherford’s position was made redundant.
[19] While this may have been the case in November 2014 when the decision was made to declare Ms Rutherford’s position redundant, Ms Rutherford remained an employee until 17 December 2014.
[20] I am not able to make a final determination about the merits of Ms Rutherford’s case as there are factual disputes between the parties that have not been tested.
[21] The evidence before me established that a Senior Paraplanner resigned on 7 December 2014 and another was going on extended leave was known to Anne Street prior to 17 December 2014. Anne Street had advertised for a Senior Paraplanner in mid-December 2014.
[22] I consider that Ms Rutherford has arguable case that Anne Street could have redeployed her to the position of Senior Paraplanner. It is clear that in considering redeployment an employer is required to consider all positions that an employee has the skills, qualifications and experience to fill and this includes positions at other locations. This weighs in favour of granting an extension of time.
(f) fairness as between the person and other persons in a similar position.
[23] Anne Street conceded that it would ordinarily be fair to extend time where the person learns after the dismissal that there is evidence to ground an assertion that the redundancy was not a genuine redundancy. It put that the evidence would need to disclose that the person’s case had significant or sufficient strength. 2
[24] In this case, I consider that at least in relation to her claim that she could have been redeployed and hence her redundancy was not genuine has sufficient strength to weigh in favour of granting an extension of time.
Conclusion
[25] I find that there are exceptional circumstances warranting the granting of an extension of time. Ms Rutherford did not find out the matters she now relies upon to challenge the genuineness of her redundancy until 27 January 2015. She then acted promptly and filed her application the next day. This is an exceptional circumstance and I would exercise my discretion to extend time. The application will now be referred to conciliation and if it does not resolve at conciliation directions will be issued for the further conduct of the matter.
DEPUTY PRESIDENT
Appearances:
A. Rutherford on her own behalf.
A. Barwick on behalf the Respondent.
Hearing details:
2015.
Melbourne and Sydney, by telephone link:
27 March.
1 [2011] FWAFB 975.
2 Aristodemou v Sunshine Corporation Limited [2014] FWC 8384 at [38].
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