Angela Murray v Super Retail Group T/A Supercheap Auto Mandurah

[2015] FWC 3690

[2015] FWC 3690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Angela Murray
v
Super Retail Group T/A Supercheap Auto Mandurah
(C2014/7853)

DEPUTY PRESIDENT KOVACIC CANBERRA, 29 MAY 2015

Application to deal with contraventions involving dismissal.

[1] Ms Angela Murray (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 19 November 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Super Retail Group T/A Supercheap Auto Mandurah (Supercheap - the Respondent) on 23 October 2014 in contravention of the general protections provisions in the Act. As the application had been lodged six days outside the statutory timeframe for lodgement, the Commission issued Directions on 8 December 2014 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. Neither party asked to be heard on the matter. In addition to the written submissions filed, Ms Murray filed a witness statement in support of her application.

[3] For the reasons set out below I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be dismissed.

Background

[4] Ms Murray commenced employment with Supercheap on 14 January 2009 as a full time retail supervisor. On 11 November 2013 Ms Murray was one hour late to work. On 29 December 2013 Ms Murray was removing stock from pallets at work when she was injured by a falling 20 litre drum. After a period of absence, Ms Murray returned to work whilst on workers’ compensation. Ms Murray was prescribed strong analgesics to manage the pain from her injury. Those painkillers affected her ability to wake up.

[5] On 12 February 2015 Ms Murray failed to attend for work and on 2 March 2014 she was one and a half hours late for work and failed to open the store as expected. On 11 May 2014 Supercheap convened a disciplinary meeting with Ms Murray to discuss her punctuality. Following that meeting Ms Murray was issued with a first warning.

[6] Ms Murray was late for work on 25 August 2014 resulting in the store opening being delayed. Supercheap met with Ms Murray to discuss this incident on 27 August 2014. Following that meeting Ms Murray was issued with a final warning. Notwithstanding the final warning, on or about 25 September 2014 Ms Murray was issued with an informal warning regarding her timekeeping and attendance.

[7] Ms Murray was then again late for work on or about 19 and 22 October 2014 resulting in a final disciplinary meeting being convened on 23 October 2014. During the course of this meeting Ms Murray was dismissed from her employment.

[8] Ms Murray met with her solicitor on 30 October 2014, a week after her dismissal. It was submitted that Ms Murray presented at that meeting as suffering from extreme stress and appeared to be exhausted and emotionally distressed. A draft general protections application was prepared by a law clerk at the Solicitor’s firm and forwarded to the responsible solicitor, Mr Petherick, on 31 October 2014. It was further submitted that Mr Petherick was unable to consider the draft application in the week commencing 3 November 2014 because he was busy with court matters and preparations for trial matters and was still awaiting a copy of the separation certificate. Mr Petherick was then unwell from 10 to 18 November 2014. A copy of the separation certificate was received by Ms Murray on 19 November 2014 and forwarded to her solicitor on that day. Her application was lodged on the same day.

The Relevant Legislation

[9] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(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.”

Whether to allow a further period for the application to be made

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] It was submitted on Ms Murray’s behalf that a number of factors were reasons for the delay in lodging her application. These included that:

• Ms Murray was unable to consult her solicitor until 30 October 2014 because she was suffering a high level of distress;



• a separation certificate was not provided by Supercheap until 19 November 2014;



• Mr Petherick wished to consider the reason for the separation as cited in the separation certificate before lodging the application; and



• Mr Petherick became unwell on 10 November 2014 and was not able to finalise the application until 19 November.

[12] It was further submitted on Ms Murray’s behalf that a general protections application requires a separation certificate or termination letter to be attached to the application before it can be filed. As an aside, this is not the case.

[13] Ms Murray reiterated these factors in her witness statement. With regard to the separation certificate, Ms Murray deposed that she had requested the certificate shortly after the meeting with Supercheap on 23 October 2014 and that she followed up with Supercheap regarding the certificate again on 18 November 2014. Ms Murray further deposed that she had not had the opportunity to speak with her solicitor again between the initial meeting of 30 October 2014 and 19 November 2014 when she provided the separation certificate as she had been “stressed and unwell”. Ms Murray attested that had the separation certificate been provided within 14 days of the dismissal, the certificate would have been provided to her solicitor and the application lodged within time. Ms Murray also noted in her witness statement that Mr Petherick “took a period of leave that may have contributed to the delay” (underlining added).

[14] Supercheap contended that it is immaterial that Ms Murray could not attend upon a meeting with her solicitor until a week after her dismissal as there remained sufficient opportunity to make an application within the statutory timeframe for lodgement. Supercheap disputed that Ms Murray had requested a copy of the separation certificate during the course of the termination meeting, submitting that Ms Murray had requested a copy of the certificate on or about 19 November 2014 and was provided a copy on that date. Supercheap further noted that at no time is an applicant required to attach a separation certificate or termination letter to a general protections application. On that basis, Supercheap submitted that Ms Murray was not prevented from lodging her application within the 21 day statutory timeframe.

[15] As to Mr Petherick’s unavailability due to work pressures and illness, Supercheap submitted that with a draft application having been prepared on 31 October 2014 there was sufficient opportunity to review and lodge the application despite these factors. Further, the draft application could have been referred to another solicitor at the practice for review and lodging.

[16] Supercheap submitted that Ms Murray’s witness statement demonstrated that she made no attempt to provide clear instructions to lodge her application until 19 November 2014. That view was based on Ms Murray’s statement that she had not had the opportunity to speak with her solicitor between the initial meeting of 30 October 2014 and 19 November 2014. Supercheap submitted that this meant that even if representative error had occurred, Ms Murray could not have complied with the statutory timeframe. Supercheap also contended that, as such, the Commission should find that representative error did not contribute to the delay in lodging the application.

[17] What can be drawn from the above is that Ms Murray did not follow up with her solicitors regarding her application between 30 October and 19 November 2014 and did not follow up with Supercheap regarding her separation certificate from the time of her dismissal until either 18 or 19 November 2014. This is put down to Ms Murray’s distress. However, I note that it is not uncommon for someone who has just been dismissed to be upset and distressed. In other words, Ms Murray did not follow up in either regard until either five or six days after the 21 day statutory time frame had expired.

[18] As to the issue of representative error, there was no material before the Commission indicating that Ms Murray had given her solicitors clear instructions on 30 October 2014 to lodge an application on behalf. To the contrary, it was submitted on Ms Murray’s behalf that Mr Petherick wished to consider the reason for the separation as cited in the separation certificate before lodging the application.

[19] Taken together, these factors do not support a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[20] It was submitted on Ms Murray’s behalf that Ms Murray disputed her dismissal from the outset. More particularly, it was submitted that throughout the disciplinary process Ms Murray maintained that her attendance issues were not misconduct and that she had requested a separation certificate immediately after her dismissal (as noted above this is disputed).

[21] Supercheap submitted that other than the application, Ms Murray made no attempt to dispute her dismissal.

[22] Based on the material before the Commission, I am unable to form a view as to whether or not Ms Murray took steps to dispute her dismissal. Accordingly, I consider this factor a neutral consideration. I do not accept Ms Murray’s submission that maintaining throughout the disciplinary process that her attendance issues were not misconduct constitutes disputing the dismissal.

(d) Prejudice to the employer (including prejudice caused by the delay)

[23] Ms Murray contends there is no prejudice to the employer as the delay in lodging was minimal. The timing of Ms Murray receiving the separation certificate and that she disputed her dismissal from the outset were also cited as considerations. However, as previously noted these contentions are disputed.

[24] Supercheap contended that should further time be allowed, it would be unfairly prejudiced due to the costs of participating in any hearings, the burden on its internal resources and the impact on workflow and other incidental costs. It is not unusual for respondents to cite these factors as being prejudicial.

[25] I do not consider any of these arguments particularly compelling. Accordingly, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[26] It was submitted on Ms Murray’s behalf that she had a strong case. Features cited in this regard included that Supercheap had failed to make reasonable accommodation for Ms Murray’s rehabilitation and that the employer’s actions in dismissing her are undoubtedly in contravention of the general protections provisions of the Act. However, little, if any, material was provided to substantiate this view.

[27] Supercheap submitted that Ms Murray’s employment was terminated for legitimate reasons of performance and conduct and that this factor should therefore be treated as a neutral consideration.

[28] On the basis of the limited material before the Commission, the merits of the application appear less than compelling.

(f) Fairness as between the person and other persons in a like position

[29] No views were expressed by Ms Murray on this point. Supercheap contends that if an extension of time were granted this would create unfairness due to the established position of the Commission in refusing applications in the absence of exceptional circumstances.

[30] Again, I consider this factor to be a neutral consideration.

Conclusion

[31] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.”

[32] Having considered all of the factors set out in s.366(2) and drawing on Nulty, on balance I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[33] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975

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