Anna Kelly v Aizome1 Pty Ltd

[2016] FWC 2026

[2016] FWC 2026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Anna Kelly
v
Aizome1 Pty Ltd
(C2015/7530)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 31 MARCH 2016

Application to deal with contraventions involving dismissal.

[1] On 9 December 2015 Ms Anna Kelly (the Applicant) lodged a General Protections application with the Fair Work Commission (the Commission) involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Aizome 1 Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 14 May 2015. She was a Marketing Manager in the Respondent’s textile and fashion Melbourne office. She says that she was dismissed on 17 November 2015 and the dismissal took effect on that day.

[3] The application therefore was lodged one day out of time.

Alleged Contravention

[4] The Applicant submits that she suffered adverse action and was ultimately dismissed because she sought to exercise a range of workplace rights. She also alleges a breach of s.345.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was made redundant.

Relevant Legislation

[7] 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.”

Approach of the Commission

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[11] On 18 January 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 8 March 2016.

[12] The Applicant was represented by Mr B. Archer, solicitor. The Respondent was represented by Ms A. LaVerde, solicitor. Both were granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[13] 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

[14] The Applicant relies on representative error as the explanation for the delay of one day in filing. Mr Archer explained that he had inadvertently not lodged the F8 form on 8 December 2015, but rather the three page coversheet explanation. When this was brought to his attention on 9 December by Commission staff he immediately lodged the form that had already been completed.

[15] The Commission has taken the view that representative error may be grounds for exceptional circumstances where the employee has not contributed to the delay. Clark v Ringwood Private Hospital (1997) 74 IR 413; Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728.

[16] I am satisfied that in the circumstances, the delay of one day in lodging is the result of representative error and this does tend to show exceptional circumstances.

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

[17] The Applicant, through Mr Archer, took action to seek to negotiate a settlement.

[18] However, I am not satisfied that this is a matter of significance in the circumstances of this case.

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

[19] Given the overall facts, this aspect is neutral.

(d) Merits of the application

[20] The Applicant says she was dismissed because of the issues she raised about her conditions of employment, and her contract of employment. She alleges that the redundancy is in fact a sham.

[21] The Respondent says that this was a genuine redundancy on account of the business restructure. It further says that the Applicant had accepted the validity of the redundancy but challenged the quantum of the payment

[22] It appears to me that there is a possible General Protections claim in this matter. However, the Applicant has not really particularised her claims in relation to contraventions of workplace rights.

[23] On balance, I consider that the merits of the application give some support to the existence of exceptional circumstances.

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

[24] This factor was not addressed and has not been taken into account.

Conclusion and Order

[25] Having considered all of the factors set out in s.366(2), I am 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 for a further period for lodging of the application is granted.

Order

I order that the time for Ms Anna Kelly to file her application under s.365 of the Act be extended to 9 December 2015. The application shall be referred for further proceedings in the Commission.

DEPUTY PRESIDENT

Appearances:

B. Archer, solicitor for the Applicant;

A. LaVerde for the Respondent.

Hearing details:

2016

Telephone Hearing:

March 8.

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