Carenne Norris & David Cocking v Regional Merchandising Solutions T/A Regional Merchandising

[2015] FWC 4079

[2015] FWC 4079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carenne Norris & David Cocking
v
Regional Merchandising Solutions T/A Regional Merchandising
(U2015/3416 and U2015/3419)

COMMISSIONER GREGORY MELBOURNE, 23 JUNE 2015

Application for extension of time.

Introduction

[1] Ms Carenne Norris and Mr David Cocking (“the Applicants”) were employed by Regional Merchandising Solutions (“Regional Merchandising”) for a period of almost three years. During this time they worked as store managers in supermarkets located in indigenous communities that Regional Merchandising had contracted to manage and oversee. It specialises in activities associated with the management and operation of retail stores in indigenous communities in Western Australia and the Northern Territory

[2] On 24 February 2015 the Applicants made separate applications to the Fair Work Commission claiming to have been unfairly dismissed. However, Regional Merchandising submits the applications were made more than 6 months after the Applicants last worked for the business, and should be dismissed because they were lodged out of time. This decision deals with that jurisdictional objection.

[3] The Applicants each rely on the same submissions and evidence. This decision accordingly deals with both applications. The Applicants both appeared by telephone from Rockhampton. Mr B. Loughnan appeared in person on behalf of Regional Merchandising.

The Issue to Be Decided

[4] Section 394 of the Fair Work Act 2009 (Cth) sets out what is described as the “standard time limit” for making an unfair dismissal application, being 21 days after the dismissal took effect, or otherwise within such further period as the FWC allows under subsection (3).

[5] Section 394(3) continues to state the Commission may allow a further period to make application if it is satisfied 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.” 1

[6] Therefore, are there “exceptional circumstances” involved in this matter, having regard to each of the considerations in s.394(3), that warrant an exercise of the discretion to allow the Applicants additional time to make application?

The evidence and submissions

[7] Both parties provided limited submissions and evidence in support of their respective positions, and neither expressly addressed each of the matters in s.394, despite the Commission having previously made reference to these matters in correspondence with the parties.

[8] The Applicants submit they were first employed by Regional Merchandising in September 2012 and commenced work in the following month. They were initially located at a supermarket in Leonora in Western Australia, but also spent time in April 2013 working at another supermarket located a further distance away at Laverton. This involved providing assistance to the business prior to it reopening. The Applicants submit they continued to carry out bookwork associated with the operation of this store after this time. They also submit Mr Cocking took on a further role in November that year overseeing the operations at Laverton, including the associated BP Motors business. The Applicants’ submissions also indicate the supermarket at Leonora is owned by Indigenous Business Australia, and Regional Merchandising was contracted to manage the supermarket on its behalf.

[9] However, on 16 June 2014 the Applicants submit they were told by Mr Loughnan, the Managing Director of Regional Merchandising, that it had lost the contract with Indigenous Business Australia to manage the supermarket at Leonora, and it would cease managing the business from the end of the month. He also indicated there would be no ongoing positions for the Applicants at Leonora after that time and, in the interim, as a cost saving measure his son would manage the business. He also indicated he had been able to find the Applicants other work as store managers at a supermarket at Daly River in the Northern Territory, providing they were prepared to relocate immediately. That business was apparently owned by the Nauiyu Nambiyu Aboriginal Corporation.

[10] The Applicants said they were upset by the decision to terminate their employment at Leonora. They were also uncertain about why they had been terminated, but suspected it was because Mr Loughnan wanted his son to take on the store manager role. They said they reluctantly decided to take up the opportunity to move to Daly River, and worked there until 30 July. However, they submit excessive and unrealistic demands were placed on them in terms of working hours and what was expected of them in that role, and they left Daly River at the end of July.

[11] The Applicants again spent time working for Regional Merchandising at Laverton in September/October 2014 after they returned from Daly River. This involved relief work for the existing employees of the business.

[12] The Applicants submit they did not lodge their unfair dismissal applications until February 2015, being several months after they last worked for Regional Merchandising, because until this time they remained optimistic about the possibility of being re-employed. In this context they refer, in particular, to an email from Mr Loughnan in late December 2014, indicating Regional Merchandising was waiting on a decision from Indigenous Business Australia about whether it would again be given contracts to manage its supermarkets. The Applicants submit this email held out the possibility of work being available elsewhere, with various potential locations referred to.

[13] However, the Applicants submit this possible option was finally closed off when a further email, dated 3 February, was received from Mr Loughnan. It indicated Regional Merchandising had been unsuccessful in its attempts to gain further contracts with Indigenous Business Australia, and it was unlikely further contracts would be obtained in the future. The email also suggested the Applicants would likely have more chance of finding employment opportunities elsewhere if they made enquiries in their own right, rather than working through Regional Merchandising.

[14] Regional Merchandising provided brief written submissions in opposing the application. It indicated the Applicants’ contract of employment was terminated on 16 June 2014, in circumstances where the reason for their termination was not disputed. It submits the unfair dismissal claim was then lodged on 24 February 2015, “more than six months after the date of the termination incident.” 2 It also submits it is not aware of any reason for the delay in lodging, and submits it assisted in brokering positions for the Applicants at Daly River and Laverton after their employment at Leonora came to an end.

[15] Regional Merchandising also submits the Applicants’ unfair dismissal claims do not have merit, and they moved to take up another position at a higher rate of pay and with better conditions, which it assisted them to obtain.

[16] Mr Loughnan also acknowledged in his oral submissions there were ongoing discussions with the Applicants in the latter part of 2014 about the possibility of future work opportunities, however, there were never any firm commitments or promises made and, in any case, he was not in a position to make any such commitments. He also submits the Applicants were not employed by Regional Merchandising during the time spent at Daly River, but were employed by the local community. He also believed he was assisting the Applicants by suggesting the option of work at Daly River given the uncertainty surrounding the ongoing contract at Leonora. He also said “out of sympathy” he was able to provide some relief work in September/October 2014 during the further period the Applicants spent working at Laverton.

Consideration

[17] In coming to a decision in this matter the Commission is required to take account of each of the matters in s.394(3) of the Act. The question of what is required to constitute “exceptional circumstances” has also been considered in a number of decisions of this Tribunal. For example, the Full Bench in Nulty v Blue Star Group Pty Ltd 3 concluded:

“[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.” 4

[18] I now turn to deal with the application by reference to the considerations in s.394(3) the Commission must take account of, and the authorities that are relevant to the determination of the matter.

(a) the reason for the delay

[19] As indicated, the Applicants submit the delay in making application was because for a period of time after they last worked for Regional Merchandising they held out hope of being re-employed by the business. This hope was finally quashed in their minds by the content of an email received from Mr Loughnan on 3 February 2015. Their unfair dismissal applications were then received by the Commission on 24 February. By this time it was more than 8 months since they had last worked for Regional Merchandising at Leonora in an ongoing role, and more than 4 months since they had worked in the short-term relieving position at Laverton.

[20] On the one hand it can be understood that in circumstances where the Applicants are hoping to be re-employed by their former employer they would be reluctant to bring unfair dismissal applications involving the business. It might also provide an explanation for their failure to do so, particularly if their optimism about being re-employed is well founded. In some cases this situation might constitute the “exceptional circumstances” that warrant an extension of time being granted to make application.

[21] However, I am not convinced this is the case in the present matter. While there is some conjecture and divergence of view about what occurred the Applicants appear to have accepted there was no ongoing role for them at Leonora post June 2014. They accordingly decided, perhaps reluctantly, to take on the role at Daly River, which Regional Merchandising had assisted in them obtaining. However, the move to Daly River proved to not be a good option and was short lived. They then worked again for Regional Merchandising in September/October in a brief relieving capacity.

[22] Throughout this period and later in 2014 and early 2015 there was intermittent contact between the Applicants and Mr Loughnan, which raised the possibility of work again being available in the future. However, this possibility was clearly contingent on Regional Merchandising obtaining new contracts to manage supermarkets in indigenous communities at some point in the future.

[23] The evidence does not point to anything to suggest a firm commitment or promise of future work was made. There is also nothing to suggest the ongoing discussions about possible future work opportunities were intended to be a device to avoid the consequences for Regional Merchandising of terminating the Applicants’ employment in June 2014, apart from the brief time later spent working in the relieving role.

[24] I am satisfied the possibility of the Applicants gaining work in the future for Regional Merchandising can therefore be seen to be a reason why they delayed making their unfair dismissal applications after being terminated at Leonora in June 2014. However, I am not satisfied it provides a “valid reason,” as required by the legislation that underpins the present application. The 21 day standard time limit for making claims is obviously intended to provide some rigour and certainty to the process, and to emphasise it will only be in “exceptional circumstances” that additional time will be provided. The submissions and evidence provided by the Applicants clearly indicate that, for various reasons, they were unhappy and disappointed about the termination of their employment at Leonora. It also appears the work was at times demanding and difficult. However, they apparently enjoyed the work and would have preferred to remain in those roles. They also believed they were being terminated so Mr Loughnan’s son could take on the manager’s role, which they were disappointed about. In this situation it would normally be expected that employees disappointed and upset by the circumstances surrounding their termination would take action promptly in response.

(b) whether the person first became aware of the dismissal after it had taken effect;

[25] This consideration has some significance in the present matter. It is clear the Applicants became aware of the termination of their employment as the store managers of the supermarket at Leonora at the time it occurred. They were informed by Mr Loughnan on 16 June 2014, and told it occurred because Regional Merchandising had lost the contract to manage the supermarket. In these circumstances I am satisfied the Applicants were aware they had been dismissed at the time their dismissal took effect, notwithstanding they remained optimistic about the possibility of future re-employment.

(c) any action taken by the person to dispute the dismissal;

[26] The evidence indicates the principal action taken by the Applicants to dispute their dismissal was the filing of the unfair dismissal applications. However, their submissions also indicate they were unhappy about the fact their employment at Leonora had come to an end but again, as indicated, their hope about the possibility of future re-employment acted to temper any action they might have taken at the time to dispute their dismissal.

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

[27] There will always be some prejudice to an employer if the discretion is exercised to grant additional time in which to make application, given the employer will then be required to prepare to respond to the application. This is likely to be compounded in circumstances where some months have transpired between termination and an unfair dismissal application being made.

(e) the merits of the application;

[28] It is difficult to form a clear view about the respective merits of this matter. As indicated, the Applicants submit the termination of their employment at Leonora was simply a device to enable Mr Loughnan’s son to be placed in that role. However, Regional Merchandising submits their termination only occurred because its contract to manage the supermarket had been terminated. It also points to the attempts made to try and assist the Applicants gain other employment.

[29] As indicated, I am unable to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before the Commission. However, a Full Bench of the Commission has previously found it is not necessary to embark on a detailed consideration of the substantive case in an application of this kind. The Full Bench also noted in that matter that while the issue of merit is important, exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

(f) fairness as between the person and other persons in a similar position

[30] Neither party made submissions suggesting this consideration was of particular importance in the present matter.

Conclusion

[31] By any measure the Applicants’ unfair dismissal applications were lodged a significant time after the standard 21 day period provided for in the Act. Previous decisions of this Tribunal have emphasised the requirement to comply with prescribed time limits is not a mere technical problem, but involves a failure to comply with substantive legislative provisions. As indicated already the Act also makes clear it is only in “exceptional circumstances” the Commission should exercise the discretion available to it to extend the time for making application.

[32] I have considered all the evidence and submissions provided by the parties in this matter. I have also had regard to each of the considerations in s.394(3) I am required to take account of, and the authorities I consider relevant to determination of this matter. I am not satisfied the submissions and evidence establish the existence of the “exceptional circumstances” that the decision in Nulty indicates is required to warrant an exercise of the discretion to extend time in which to make application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Cocking and Ms Norris appeared on their own behalf by telephone.

The Respondent was represented by Mr Bob Loughnan.

Hearing details:

2015.

Melbourne and Rockhampton (by telephone):

17 April.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Submissions of the Respondent, received 10 April 2015, at para 4

 3   [2011] FWAFB 975

 4   Ibid at [13]

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