Carly Lambourne v GPC Asia Pacific Pty Ltd t/a Ashdown-Ingram

[2017] FWC 1209

[2017] FWC 1209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Carly Lambourne
v
GPC Asia Pacific Pty Ltd t/a Ashdown-Ingram
(C2017/240)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2017

Application to deal with contraventions involving dismissal.

[1] Ms Carly Lambourne alleged that the termination of her employment by GPC Asia Pacific Pty Ltd trading as Ashdown-Ingram was in breach of the general protections provisions of the Fair Work Act 2009. Ashdown-Ingram denies the allegation.

[2] Given her dismissal took effect on 8 December 2016, her general protections application lodged on 12 January 2017 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Lambourne lodged an unfair dismissal application on 14 December 2016. She was advised on the same date that she may not meet the qualifying period as she had commenced employment on 1 July 2016. Ms Lambourne discontinued that application on 20 December 2016. Had she lodged her general protections claim at this time, she would have been within the 21 day time limit.

[6] On 28 December 2016, Ms Lambourne sent an email to the Commission stating that she had attached a general protections application. On 30 December 2016, she was advised that no application had been attached. Ms Lambourne then replied on 12 January 2017 and lodged the application. She said she did not have access to a computer and relied upon a friend who told her when she had email. Ms Lambourne said that this problem was exacerbated by the Christmas break. Ms Lambourne had until 4 January 2017 to lodge her application in time. She was advised on 30 December 2016 that no application was attached to her email. Even accepting the Christmas/New Year break, Ms Lambourne did not file her application until 12 January 2017. She also submitted that the Working Women’s Centre, which was providing her with advice, was shut over the break. However, it is unclear how this is relevant as the problem was not an issue about advice but one of computer access.

[7] I do not accept that Ms Lambourne has provided a reasonable explanation for the whole of the delay. While I accept that Ms Lambourne did not have her own computer it was incumbent on her once she decided to use her friend’s email address to ensure that she was advised when emails were sent to her. Had she done so, she would have known on 30 December 2016 that no application had been received.

[8] This weighs against a finding that there are exceptional circumstances.

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

[9] Ms Lambourne was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[10] Ms Lambourne lodged an unfair dismissal application which she discontinued. She did not take any other action to dispute her dismissal. I consider this to be a neutral consideration.

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

[11] There was no evidence or submission about any prejudice to Ashdown-Ingram. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[12] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 3

[13] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[14] In her application Ms Lambourne said that she was dismissed because she was female. She said she was the only female automotive parts interpreter. At the hearing, Ms Lambourne complained that she had not been properly inducted; that she acknowledged that she had made the gestures alleged and she had apologised; she said she received no warnings and that her dismissal was unfair. I explained to Ms Lambourne that her general protections application would not resolve these complaints as she was not protected from unfair dismissal because she had not met the minimum employment period. I explained that this case was whether her dismissal was because of her gender as alleged by her. Ms Lambourne then said that this was not the reason though she noted she was the only female automotive parts interpreter. She said she would not be able to prove this was the reason.

[15] Ashdown-Ingram denied Ms Lambourne’s gender was relevant to her dismissal. She was dismissed during her probation period because of her conduct towards her manager.

[16] It appears to me that Ms Lambourne’s general protections claim is weak. What she is really complaining about is what she says is the unfairness of her dismissal. I make no findings in relation to that. However in relation to her general protections claim Ashdown-Ingram will be required to prove that Ms Lambourne’s gender was not a reason for the dismissal.

[17] I consider this criterion to be a neutral consideration.

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

[18] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

[19] This weighs for/against a finding that there are exceptional circumstances.

Conclusion

[20] I am not satisfied that there are exceptional circumstances. A lack of prejudice to the employer alone is an insufficient basis to find that there are exceptional circumstances. Accordingly, Ms Lambourne’s application for an extension of time is dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

C. Lambourne on her own behalf.

V. Tooley for the Respondent.

Hearing details:

2017.

Melbourne, Qld and NT, by telephone link:

1 March.

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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