Carley Theacos v Rema Tip Top Industrie Pty Ltd

[2021] FWC 3812

[2021] FWC 3812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carley Theacos
v
Rema Tip Top Industrie Pty Ltd
(U2021/4962)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 1 JULY 2021

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

[1] This decision concerns an application by Ms Carley Theacos (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with Rema Tip Top Industrie Pty Ltd (Respondent) took effect on 11 August 2020. The unfair dismissal application was lodged on 8 June 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 1 September 2020. The application was therefore filed 280 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[10] The relevant sequence of events may be summarised as follows:

•  In August 2019, the Applicant informed her manager that she was pregnant.

•  In January 2020, the Applicant was told that her position with the Respondent as an Accounts Payable Officer was being relocated from Newcastle to Brisbane. She was asked if she was interested in relocating to Brisbane. The Applicant declined the offer because she was 6 months pregnant.

•  In March 2020, the Applicant took annual leave that continued into April 2020. The Applicant then started her maternity leave.

•  On 6 July 2020, the Applicant was informed, in writing, that the Respondent was reviewing its organisational structure due to changes in operational requirements arising from a downturn in the industry and the global pandemic. The Applicant was also informed, in writing, that her role as an Accounts Payable Officer had been provisionally selected for redundancy.

•  By letter dated 13 July 2020, the Applicant was given written notice of the termination of her employment on the grounds of redundancy. The Applicant was informed that her employment with the Respondent would end on 11 August 2020 and she would not have to work out her notice period. In addition to a four week payment in lieu of notice, the Applicant was paid four weeks’ redundancy pay.

•  In December 2020, the Applicant was informed by a number of people who worked for the Respondent that the Applicant’s former job was no longer being considered for relocation to Brisbane. The Applicant believes that a staff member who was employed by the Respondent in August 2019 on a 12-month contract and who undertook the Applicant’s job when she was on maternity leave has been employed by the Respondent on a full-time contract and is doing the Applicant’s job in Newcastle.

•  In December 2020, soon after finding out that her former job had not been relocated to Brisbane, the Applicant lodged a complaint with the Australian Human Rights Commission (AHRC) because she believed that she had been discriminated against on the basis of her pregnancy. Due to resourcing constraints, the AHRC’s investigation of the Applicant’s complaint was delayed. The Applicant made regular contact with the AHRC to follow up on her complaint after lodging it in December 2020.

•  On 30 March 2021, the AHRC informed the Applicant that it was commencing its investigation of her complaint. In the period from April 2021 to late May 2021, the Applicant made regular contact with the AHRC investigator assigned to her complaint in an effort to find out when the investigation would be completed.

•  On 1 June 2021, the AHRC informed the Applicant that they did not think she had enough grounds for her complaint to be a discrimination act. The Applicant then withdrew her complaint to the AHRC.

[11] In summary, the Applicant relies on the following reasons for the delay in filing her unfair dismissal application:

•  She was not aware that her job had not been relocated to Brisbane until she was told about those matters in December 2020.

•  After becoming aware that her position had not been relocated to Brisbane, the Applicant took immediate steps to challenge her dismissal by lodging a complaint in the AHRC. Due to resourcing constraints, there was a delay on the AHRC’s part in investigating the Applicant’s complaint. The Applicant made regular contact with the AHRC to find out the status of her complaint. It was not until 1 June 2021 that the AHRC completed its investigation and informed the Applicant that they did not think she had enough grounds for her discrimination complaint to succeed. The Applicant then withdrew her complaint to the AHRC and took steps to prepare her unfair dismissal application; she lodged it in the Commission on 8 June 2021.

[12] I accept that the Applicant has a reasonable explanation for the delay in filing her unfair dismissal application in the period from the conclusion of the 21 day period after her dismissal took effect until she was informed in December 2020 that her job had not been relocated to Brisbane. Prior to receiving that information, the Applicant had no reason to think that what she had been told about the reason for the redundancy of her position may have been untrue or that her subsequent dismissal may have been unfair.

[13] However, I do not consider the matters relied on by the Applicant, individually or together, from December 2020 until 8 June 2021 to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. Once the Applicant was told in December 2020 that her job had not been relocated to Brisbane, she had a range of options available to her, including lodging a complaint with the AHRC, lodging an unfair dismissal application in the Commission, or taking some other step to challenge, or find out more information about, her dismissal. After seeking advice from some (non-legally qualified) friends in management positions, the Applicant elected to make a complaint to the AHRC.

[14] Section 725 of the Act provides that “a person who has been dismissed must not make an application or complaint of a kind referred to in any one of the sections 726 to 732 in relation to the dismissal if any other of those sections applies”. Section 729 deals with unfair dismissal applications. Section 732 deals with an application or complaint made under another law in relation to the person’s dismissal. This includes complaints to the AHRC in relation to a dismissal. However, if a complaint to the AHRC is withdrawn by the person who made the application or fails for want of jurisdiction, s 725 of the Act does not prevent the person from taking some other action in relation to their dismissal, including lodging an unfair dismissal application. 6 Because the Applicant withdrew her complaint to the AHRC, s 725 of the Act does not preclude her from lodging an unfair dismissal application.

[15] The statutory purpose of s 725 of the Act is to prevent an applicant from “double dipping” when he or she has multiple potential statutory remedies available relating to a dismissal from employment. The provisions seek to limit a person to a single statutory remedy in relation to the termination of their employment. 7

[16] In my view, it would ordinarily be inconsistent with the statutory regime to which I have referred to find that an employee who made an election to pursue a particular statutory remedy in relation to their dismissal, such as making a complaint to the AHRC, had a reasonable or acceptable explanation for the delay in filing their unfair dismissal application while the AHRC conducted an investigation into their complaint. There is nothing about the present case which persuades me that the Applicant’s election to pursue a complaint to the AHRC and the time taken for the AHRC to investigate that complaint provides the Applicant with a reasonable or acceptable explanation for the delay in filing her unfair dismissal application in the period from December 2020 until 8 June 2021. The Applicant could have pursued her discrimination complaint. Instead, she elected to withdraw it and pursue a new statutory remedy – unfair dismissal. The consequence of the Applicant’s choice is that her unfair dismissal application was lodged well outside the 21 day time period provided for in the Act.

[17] The absence of an acceptable or reasonable explanation for a significant part of the delay in lodging the application on 8 June 2021 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant was aware of her dismissal on the day it took effect (11 August 2020). The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[19] The Applicant took action to dispute her dismissal by making a complaint to the AHRC. This weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[20] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[21] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[22] The Applicant contends that her redundancy was not genuine because her job is still being performed in Newcastle. The Respondent contends that it made a decision in 2019 to relocate its head office from Newcastle to Brisbane. It is contended that this decision, together with a change in the Respondent’s operational requirements arising from a downturn in the industry in which the Respondent operates and the effects of the global pandemic, led the Respondent to implement a significant restructure which resulted in about 80 positions being made redundant, including the Applicant’s position. As to the employee who was hired by the Respondent on a fixed term basis in 2019 and who was conducting a similar role to the Applicant, she was offered the position in Brisbane because none of the Respondent’s permanent employees were willing to relocate to Brisbane. The fixed term employee accepted the job offer and it was planned that she would relocate to Brisbane to work in the Respondent’s finance team once the COVID-19 related restrictions were less volatile. To that end, the Respondent paid for the employee to travel to Brisbane to make arrangements to relocate there. However, in January 2021, a global restructure of Rema Tip Top occurred whereby its businesses in Africa and Asia Pacific (including Australia) merged into one business group and the new Chief Executive Officer decided to rescind the previous decision to make Brisbane the head office of Rema Tip Top in the Asia Pacific region. As a result, the relocation of several finance staff to Brisbane was no longer required and a new decision was made to retain those staff in Newcastle. The Respondent also contends that it consulted with the Applicant about her redundancy in July 2020.

[23] In all the circumstances, my preliminary assessment on the materials before me is that the merits of the Applicant’s unfair dismissal case are weak. The Respondent appears to have made legitimate business decisions to relocate its head office to Brisbane and then to rescind that decision in January 2021 after a global restructure and the appointment of a new Chief Executive Office. Although it looks to the Applicant as though nothing has changed and her job has simply remained in Newcastle, changes were made for the job to be based in Brisbane and then, before the relocation took place, further changes were made for the job to be based in Newcastle. The location of the job (in Newcastle or Brisbane) is an important aspect of the role. When the Respondent made its decision for the job to be based in Brisbane, it no longer required the Applicant’s job (based in Newcastle) to be performed by anyone. That decision was made because of changes in the operational requirements of the Respondent’s enterprise. I accept Mr Warren’s evidence that, at the time the decision was made to relocate the finance team to Brisbane and make the Applicant’s role in Newcastle redundant, it was not foreseeable that the decision would effectively be reversed in January 2021 after a global restructure and the appointment of a new Chief Executive Officer. In my assessment, the merits of the application do not weigh in favour of a conclusion that there are exceptional circumstances.

Fairness as between the person and other persons in a similar position

[24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[26] Although I have sympathy for the Applicant’s personal circumstances, having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Theacos appeared for herself

Mr Warren, Head of HR & Training, appeared for the Respondent

Hearing details:

2021
Newcastle:
1 July

Printed by authority of the Commonwealth Government Printer

<PR731240>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 6   s 732(1)(b) of the Act

 7   Hazledine v Wakerley & Giddings[2017] FWCFB 500 at [39]