Catherine Perkins v Cretan Enterprises Pty Ltd T/A Food Plus

[2014] FWC 2574

[2014] FWC 2574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Catherine Perkins
v
Cretan Enterprises Pty Ltd T/A Food Plus
(U2014/3623)

DEPUTY PRESIDENT BARTEL ADELAIDE, 16 APRIL 2014

Termination of employment - extension of time.

[1] Catherine Perkins (the applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in respect to the termination of her employment by Cretan Enterprises Pty Ltd T/A Food Plus (the employer).

[2] The applicant resides and was employed in Port Pirie, approximately 220kms north of Adelaide. She was dismissed from her employment as a Supervisor on 9 December 2013 for poor performance. 1 Her application was filed on 7 January 2014, eight days beyond the 21-day time limit provided in s.394(2)(a) of the Act and consequently an extension of time within which to file the application is sought.

[3] The relevant provisions of the Act are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[4] The extension of time was dealt with as a preliminary issue and was heard on 7 April 2014.

The reason for the delay

[5] The applicant stated that she provided her Form F2 to the office of the Transport Workers’ Union of Australia - South Australian/Northern Territory Branch (the TWU) in Adelaide on 6 January 2014 and assumes that the TWU filed the Form the following day. I interpose that an “Incoming fax report” on the Fair Work Commission (FWC) file indicates that the Form F2 was received by facsimile at 10.44pm on 7 January 2014 from a fax number with a Port Pire prefix.

[6] She stated that prior to her dismissal, her father had suffered a heart attack and subsequently required a pacemaker and that both her mother and sister were diagnosed with cancer. She said that she travelled to Adelaide on five to six occasions between the date of dismissal and 6 January 2014 to support and assist these family members when attending for treatment in Adelaide.

[7] In addition, the applicant said that she was involved in an ongoing custody dispute relating to her 10-year old son and had three Family Court attendances in Adelaide over this same period.

[8] The applicant stated that she was preoccupied with these personal and family issues and as a result mistakenly believed that she had been dismissed on 19 December rather than 9 December 2013.

[9] She acknowledged that she received a letter of termination dated 9 December and that she requested, and was provided with a Separation Certificate dated 10 December 2013. A couple of days after dismissal the applicant spoke with theTWU delegate who had accompanied her to the termination meeting, about the steps that may be available to her in respect to her dismissal. According to the applicant, the delegate said that he would get advice on these matters but, as he did not get back to her, she contacted the TWU office in Adelaide. Under cross-examination the applicant confirmed that this occurred before Christmas 2013 and that she was advised of the 21-day time limit in the course of this discussion.

[10] When questioned as to why she took no action to deal with her dismissal on the days when she was not in Adelaide, the applicant stated that she was pre-occupied and worried about family members and that she also had to move out of the place she had been renting.

When the applicant became aware of the dismissal

[11] It is agreed that the applicant became aware of the dismissal on 9 December 2013.

Action taken to dispute the dismissal

[12] No action was taken by the applicant to dispute the dismissal other than lodging the application for an unfair dismissal remedy.

Prejudice to the employer

[13] Ms Vicki Hinton, of Business SA representing the employer, stated that the employer would be prejudiced by the granting of an extension of time as a result of having to defend the application. Ms Hinton referred to onerous business requirements upon the employer and the fact that it had already incurred unnecessary costs as a result of the applicant’s non-attendance at conciliation

The merits of the application

[14] The applicant admitted under cross-examination to having received two prior written warnings, one of which was a final warning in July 2013 in relation to her performance. The applicant stated that her performance had been compromised in the 12 months leading up to dismissal as a result of the personal and family matters she had been dealing with. However, Mr Lawrie from the TWU, on behalf of the applicant, submitted that there was a lack of procedural fairness in that she had received no advance notice of the meeting on 9 December 2013 or of the matters that were to be discussed, and that the employer had not considered her eight years of service.

[15] Ms Hinton stated that the employer provided additional training and instruction after the July warning and that the applicant had every opportunity to improve her performance. Further, Ms Hinton submitted that there was a valid reason for the applicant’s termination; she was on notice as a result of the final warning; and she had the opportunity to have a support person at the meeting of 9 December 2013.

Fairness as between the applicant and other persons in the same position

[16] There were no submissions on this point and it is of no weight in the determination of this matter.

Consideration

[17] In order to exercise the discretion to grant an extension of time pursuant to s.394(3) of the Act, the Commission must be satisfied that exceptional circumstances exist, taking into account the matters specified in ss.394(3)(a) to (f) of the Act. The applicant bears the onus of establishing that exceptional circumstances exist.

[18] In Nulty v Blue Star Group Pty Ltd, a Full Bench of Fair Work Australia was considering an appeal against the decision at first instance refusing to grant the appellant an extension of time within which to lodge a general protections application pursuant to s.365 of the Act. In the course of its decision the Full Bench considered the case law on the meaning of the expression “exceptional circumstances” and commented that:

“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.” 2

[19] I am satisfied that the combination of the serious illness of several family members and an ongoing custody issue, both of which required the applicant’s attendance in Adelaide on a range of days after her dismissal, could be categorised as exceptional circumstances. However in the applicant’s case these situations were ongoing rather than arising during the 21-day period. As the applicant’s evidence shows, she had the time and the awareness to take steps in relation to her dismissal.

[20] The lack of detail as to the dates that the applicant attended in Adelaide is concerning, given that the relevant information would be readily available to the applicant via family members and court documents. This lack of detail on dates and therefore the Commission’s inability to determine which attendances in Adelaide took place within the 21 days after dismissal does not assist the applicant’s case.

[21] I also find the applicant’s evidence concerning the ‘mix up’ in the date of dismissal, difficult to accept in view of the sequence of events that occurred on and from 9 December 2013. She had received two documents that confirmed the date of dismissal and had consulted her TWU delegate in relation to the matter, all within a few days of 9 December. She had also spoken to the TWU office before Christmas and at that stage became aware of the 21-day time limit.

[22] The applicant was unable to identify the date that she spoke with the TWU office, but even assuming that it was on 24 December 2013 it is not credible that she would at that time hold the view that she was dismissed only five days earlier on 19 December. If she spoke to the TWU earlier than 24 December then this only compounds the lack of credibility. Ultimately the applicant was unable to provide a convincing explanation for her belief that she had been dismissed on 19 December.

[23] I find that on or before 24 December 2013 the applicant was aware that she had been dismissed on 9 December and that she had 21 days to file an application which expired on 30 December 2013.

[24] The respondent’s evidence as to the prejudice to the employer is not persuasive. It is accepted that if an extension of time is granted the employer must defend the application whereas this is not the case if the extension is declined. However, the assessment of prejudice to the employer must be made in the context of the disadvantage suffered by the employer if an extension is granted as against the position of the employer if the application was filed within the 21-day time limit.

[25] In relation to the merits of the application, the concessions made by the applicant concerning the receipt of two prior warnings and their validity as well as the level of her performance in the period leading up to the dismissal, are noted. Mr Lawrie submitted that there were mitigating circumstances that should have been taken into account by the employer and that the applicant was denied the opportunity to present a comprehensive response to the employer’s concerns. The Commission is not in a position to make findings of fact on these matters nor is it the Commission’s role to do so. 3 In the circumstances I am unable to conclude that the application has no merit, but I would observe that the applicant’s admissions lend support to the respondent’s case.

Conclusion

[26] I accept that the applicant was confronting difficult circumstances in the period post dismissal. No doubt this was an anxious time for her and she was absent from Port Pirie on a number of occasions within the 21-day time period following her dismissal. However the evidence provided by the applicant does not satisfy me that these factors presented a barrier to her filing the application within time. Taking into account all the relevant factors in s.394(3) of the Act and the relevant case law, I am not satisfied that that exceptional circumstances exist which justify the Commission granting an extension of time. The application for an unfair dismissal remedy is therefore dismissed and an Order to that effect is issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr E Lawrie representativefor the Applicant

Ms V Hinton representativefor the Respondent

Hearing details:

2013.

Adelaide:

April 7.

 1   Letter of termination dated 9 December 2013.

 2   [2011] FWAFB 975 at [13].

 3   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Guidice J, Action SDP, Gay C, 10 November 2000, Print T2421 at [14].

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