Belinda Smith v Sarah Group Holdings Pty Ltd

[2015] FWC 3522

[2015] FWC 3522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Smith
v
Sarah Group Holdings Pty Ltd
(U2015/4941)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 MAY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Smith has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Sarah Group Holdings Pty Ltd (Sarah).

[2] Ms Smith’s application was lodged by the Working Women’s Centre on her behalf on 20 April 2015. The application advised that Ms Smith’s employment was terminated with effect from 23 February 2015. The application asked that the following information be taken into account:

“The Applicant seeks leave under s 394(3) of the Fair Work Act 2009 (Cth) for the application to proceed out of time on the basis that receiving information which indicates that a redundancy was not genuine, after the date of dismissal, constitutes an 'exceptional circumstance'.

The Applicant was made redundant, effective as of 23 February 2015. On 15 April 2015 the Applicant became aware that the respondent had advertised a position (Annexure 1) matching the Applicant's previous position (Annexure 2).

At or around 5:38pm on 15 April 2015, the Applicant called the Working Women's Centre and left a message on the answering service.

On 16 April 2015, the Applicant and an Industrial Officer from the Working Women's Centre made telephone contact and organised an appointment on 17 April 2015.

On 17 April 2015, the Applicant met with an Industrial Officer from the Working Women's Centre to draft and lodge this application. The Applicant has therefore taken steps to contest the termination of her employment at her earliest possible opportunity.

The Applicant relies upon the analogous decision in BananaCoast Credit Union Limited v Cross and others [2012] FWAFB 10165.

The Applicant's application has considerable merit.”

[3] On 22 April 2015 my Associate corresponded with both Ms Smith and Sarah and advised that the extension of time issue would be considered through a telephone conference on 25 May 2015. Substantial information about the extension of time issue was provided to the parties. Ms Smith was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 18 May 2015.

[4] Substantial additional information was received from Ms Smith together with further submissions in support of the extension of time request. This information confirmed that Ms Smith had concerns about the extent to which her dismissal was a genuine redundancy at the time of the termination of her employment. 1 On 15 April 2015 she saw a job advertisement which appeared to closely match her previous role. She subsequently contacted the Working Women’s Centre and provided instructions for the lodgement of the application.

[5] The submissions filed on her behalf address the factors specified in s.394(3) and assert that the reason for the delay relates to the extent to which she became aware, on 15 April 2015 of a position advertisement for Sarah in similar terms to the position she held. Ms Smith stressed that she relied on the decision of Sams DP in Cross and others v Banana Coast Community Credit Union Ltd T/A BCU. 2

[6] The Employer’s Response to the application indicated that Sarah opposed the extension of time and maintained its position that the termination of Ms Smith’s employment was as a result of a genuine redundancy. Sarah also provided substantial submissions in support of its position.

[7] Ms Smith participated in the telephone conference but was represented by Ms Rogers, of counsel, from the Working Women’s Centre. Ms Cirillo, from Sarah also participated in this conference but Sarah was represented by Ms Bolzon, of counsel. In both instances, permission was granted pursuant to s.596(2)(a) of the FW Act. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[9] On the information before me I am satisfied that the application was made some 35 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3 which stated:

“[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.”

[10] Ms Smith’s reasons for the delay are fundamentally based on her assessment, on 15 April 2015, some five days before she lodged this application, that her job was being advertised by Sarah. I accept that, once she made that assessment, she acted quickly to pursue this application. However, it is clear from the material provided to me that Ms Smith had substantial doubt about the basis for the termination of her employment at the time of her dismissal. Ms Smith’s statement confirms these doubts in the following terms:

“From my conversations with Alicia Cirillo, it appeared to me that she looked upon me unfavourably due to my family responsibilities and commitments outside of work. I was given that impression from various comments that she made to me including, but not limited to, the following:

a) A statement by Alicia, in relation to a discussion about my daughter, that she did not like kids and that she did not ‘do’ kids.

b) A statement by Alicia that she expected employees to be available to work long hours and to make work a priority over any personal commitments, Further, that any employees who do not fit into that category are the ‘first ones to go’.

c) A statement by Alicia that she would ‘get rid of anyone I don’t like’.

d) A statement that, when she had been promoted to the position of HR Manager at Hindmarsh plumbing, the first thing she did was restructure and get rid of people she did not like.” 4

[11] I have considered the extent to which Ms Smith’s position is comparable with that considered by Sams DP in Banana Coast. In that matter, the Deputy President considered each of the factors referenced in s.394(3). With respect to the applicants’ subsequent awareness that their termination of employment may not have been a result of a genuine redundancy he concluded:

“[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 s 394(3) of the Act. It follows that I reject Ms Paterson’s submission that a dismissal cannot be unfair based on matters that occur after the dismissal took effect.”

[12] The Deputy President later recognised the significant component of the delay in that matter which related to inaction on the part of the applicant’s union and characterised this as representative error. He ultimately concluded that the requisite circumstances for an extension of time had been made out.

[13] I note that the Deputy President’s decision in that matter was the subject of an appeal. In that decision 5 the Full Bench concluded that:

“[19] In our view, the decision under appeal properly considers each of the factors required to be considered under s.394(3) of the Act. The Deputy President considered the representational error in the context of the factor whether the employees took action to dispute their dismissals - not in relation to the reasons for the delay. We see no error in this approach. The arguments of error are not strong and essentially amount to disagreement with the consideration of the factors required to be taken into account. We have not been satisfied that it is in the public interest to grant permission to appeal. Permission is denied and the application for permission to appeal is determined accordingly.”

[14] I have also considered the comparability of Ms Smith’s position with that of Acton SDP in Marwaha v La Trobe Financial Services 6 where the Senior Deputy President summarised the reasons for the delay in the following terms:

“[7] The reasons for Ms Marwaha’s delay in making her UDR application were, in summary, that:

• she was unaware of the FWC’s unfair dismissal jurisdiction until early June 2014; and



• she became aware in early June 2014 that LFS had advertised on 30 May 2014 for an employee to perform her former duties, with a similar advertisement having been placed by LFS in March 2014.

[8] Ms Marwaha also advanced as reasons for her delay in making her UDR application that:

• she was, and is, suffering from ill health, with various reasons for her ill health;



• she did not have access at her home to the internet; and



• she was concerned she would not receive favourable references from LFS if she made a UDR application.”

[15] The Senior Deputy President dismissed that application on the basis that she was satisfied that exceptional circumstances were not established.

[16] I do not consider that Ms Smith’s circumstances are directly comparable with either matter. It is clear that she acted promptly when she saw what she considered to be a directly comparable position advertised. That advertisement appeared some seven weeks after the termination of her employment. No issues of representative error are relevant here. Ms Smith’s circumstances may be more comparable with those considered by Simpson C in Rowley v RSL (QLD) War Veterans Homes Ltd T/A RSL Care 7 where the Commissioner concluded:

“[21] The principle reasons given for the delay relied upon by the Applicant is she was misled at the time of her termination about her redundancy and subsequent information gained post the redundancy points to the redundancy not being genuine. Having considered the material put before me I am inclined to accept the Respondents submission that the new material that has come into the knowledge of the Applicant well outside the statutory timeframe for filing an unfair dismissal application is not substantial information on which a reasonable inference could be drawn to support a view that the Applicants redundancy was not genuine. On that basis I conclude the reason given for the delay is not an exceptional circumstance.”

[17] In Ms Smith’s case, I have attached substantial significance to her advice that she doubted the basis for her redundancy from the outset. I have also noted that there is no dispute that Sarah offered an alternative position to her at the time of the termination of her employment. This seems consistent with appropriate redundancy practices and inconsistent with the use of redundancy as a disguise for termination of employment. In these circumstances, I am not persuaded that Ms Smith has adequately explained why it was that she did not act to dispute the termination of her employment at a much earlier time.

[18] I have also noted the information which appears to confirm that Sarah implemented a restructure of its human resources function which resulted in Ms Smith’s selection for redundancy. Further, the advice provided by Sarah was to the effect that the redundancy process was genuine. I consider that this is reinforced by the email sent by Ms Smith’s manager, Ms Cirillo to her manager, Mr Sarah, the day before Ms Smith was made redundant. This stated:

“Hi Tim
Sasha has decided to accept a redundancy and will finish up mid this week.
I called Alyce this morning and answered some more questions. I am unsure at this point what she will decide. The redundancy money is attractive to her.
If Alyce doesn’t take the HR Admin role, Belinda will be offered the role.
If Alyce opts to take the role she has been offered, we will be able to offer Belinda redeployment into a Corporate Receptionist role at HP, however her start and finish time need to be adhered to (which doesn’t happen currently) due to the criticality of the role. I am happy to offer Belinda the reception role, which will come with a lower salary, even if it’s knowing that she’ll stay only for a short time until she finds something else. If Belinda doesn’t want the role, HP will get a temp in until we fill the role permanently. Amy will be offered the QHSE admin role.

Confusing, but I am pleased that Belinda won’t be out of a job unless she chooses to be!

Regards,
Alicia Cirillo
Group HR Manager” 8

[19] Having considered the entirety of the material before me, I am not satisfied that Ms Smith has established that the reason for the significant delay in this matter represented an exceptional circumstance. There are many instances where employees have reservations about why they are selected for redundancy, or the genuineness of those processes. Ms Smith had the capacity to act to pursue an application at an earlier time but did not do so. Had there been clearer indications of a deliberate attempt to deceive her, I may well have arrived at a different conclusion.

[20] Ms Smith became aware of the termination of her employment on the day on which it took effect. Apart from this application she did not take other action to dispute the termination of her employment. I do not consider that an extension of time of this magnitude would prejudice the Respondent, but this, of itself, does not provide a basis for an extension of time.

[21] In terms of the merits of the application, the information before me does not enable a definite conclusion. However, it is clear that the position advertised on 15 April 2015 required different qualifications to those that previously applied and involved some different functions. The issue is not whether Ms Smith could have undertaken this new position but rather, whether the redundancy was genuine pursuant to s 389 of the FW Act. On the material before me, I doubt that Ms Smith could establish that the series of workplace changes implemented by Sarah were such that they formed a somewhat elaborate ruse to warrant the termination of her employment on the basis of a redundancy. Accordingly I have regarded the merits of the application as a factor which does not favour the extension of time.

[22] Considerations of fairness relative to other persons in similar positions provide for different conclusions about an extension of time. However, I am satisfied that the conclusion here reflects a common recognition that the onus is on an applicant to take timely action to challenge a disputed employment termination.

[23] Accordingly I have concluded that the material before me does not establish that Ms Smith’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567679) giving effect to this decision will be issued.

Appearances (by telephone):

K Rogers of counsel for the applicant.

S Bolzon of counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 25.

 1   Ms Smith’s Statement, paras 18-28 and para 35

 2   [2012] FWA 7681

 3   [2011] FWAFB 975

 4   Statement of Belinda Smith, dated 18 May 2015, para 19

 5   [2012] FWAFB 10165

 6   [2014] FWC 5234

 7   [2014] FWC 5326

 8   Respondent’ Outline of Submissions, dated 22 May 2015, Annexure R1

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567678>