Christine Croft v Brotur Pty Ltd T/A Contel Communications

[2015] FWC 2485

[2015] FWC 2485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Christine Croft
v
Brotur Pty Ltd T/A Contel Communications
(C2014/7365)

COMMISSIONER LEE HOBART, 10 APRIL 2015

Application to deal with contraventions involving dismissal - extension of time - representative error - time extended.

[1] On 15 December 2014, Mrs Christine Croft (the Applicant) made an application pursuant to section 365 of the Fair Work Act 2009 (the Act) alleging that adverse action had been taken against her, by way of a dismissal, in contravention of section 340 of the Fair Work Act 2009 (the FW Act) by Brotur Pty. Ltd. T/A Contel Communications (the Respondent).

[2] The application was made outside of the prescribed period within which such applications can be made. The Applicant asks the Fair Work Commission (the Commission) to allow a further period in accordance with section 366(2) of the FW Act. The Respondent objects to a further period being granted.

[3] On 24 December 2014, I set Directions for the filing of materials. The Directions stipulated that should either party wish to have a hearing, they were to make a request to my chambers by 12 February 2015. The Directions noted that should no request for a hearing be received I may decide to determine the matter on the materials filed. No party requested a hearing and having considered the material filed, I have determined the matter on the materials filed.

[4] What I am required to determine is whether I am satisfied that there are exceptional circumstances in this matter such that I should exercise the discretion to allow a further period for this section 365 application to be made.

Background:

[5] The Form F8 application at question 1.2 alleges that the Applicant was dismissed on Sunday 23 November 2014. The Respondent in the Form F8A noted that the Applicant was dismissed on Friday 21 November 2014.

[6] The application was received by the Commission on 15 December 2014. In their submissions dealing with whether an extension of time should be given, the Applicant’s representative conceded that the dismissal took effect on Friday 21 November 2014 and that the original date on the Form F8 was a clerical error. In order to comply with section 366(1) of the FW Act the application should have been made by Friday 12 December 2015. As it was made on the following Monday (15 December 2015), the application is three days outside of the statutory time limit. The Form F8 lodged by the Applicant nominated Mr. Andrew Coyle of the Shop Distributive and Allied Employees Association (SDA) as her representative.

[7] The Applicant submitted that she first commenced employment with the previous owner of the Respondent business in 2003 and her employment continued with the current owner from 1 June 2010. The Applicant was an Administration Manager. She was covered by the General Retail Industry Award 2010. She regularly worked 85 hours per fortnight and was paid an above award rate to compensate for her additional hours. It is claimed that from 2010 onwards excessive hours above the 85 hours per fortnight were often worked and that a spreadsheet accounting for the additional hours was put in place in July 2010.

[8] In September 2014, the Respondent held discussions with the Applicant about a possible restructure and the need for a finance manager. The new structure was announced in an email sent on 17 October 2014. The new structure included the appointment of a finance manager by way of promotion of an internal applicant. As part of the restructure, the Applicant’s hours were reduced to 76 per fortnight as part of the change. The Applicant was upset about the restructure, attended a medical practitioner and did not attend work for three days following (21-23 October 2014).

[9] On 29 October the Applicant submits that she was called to a meeting with the managers of the business to discuss claims that the Applicant was saying to other staff members that she had been demoted and had a pay cut. The Applicant submits that she raised the spreadsheet and the non payment of overtime worked at this meeting.

[10] On 10 November 2014, the Applicant emailed the Respondent asking for payment of her outstanding overtime. On 13 November 2014, the Applicant was stood down on full pay. The Respondent does not dispute that the Applicant was stood down on this date and that the Respondent did so as they decided at that time to conduct a review of the internal structure and operational requirements by means of a trial period without an administration manager. The Respondent submits that on review of the trial on 20 November, it was concluded that the Applicant’s position was no longer required. On the next day, 21 November 2014, the Applicant was made redundant and received a final payment for outstanding entitlements plus a 12 week redundancy payment.

[11] The Applicant’s representative submits that the Applicant was exercising her workplace right for entitlements under the General Retail Industry Award 2010 and that making the Applicant redundant was adverse action taken for the reason that she was requesting payment of her outstanding overtime payments. It is submitted that the Applicant was made redundant soon after the new structure was announced with an organisational chart that clearly included the Applicant. In taking this action, the Applicant claims that the Respondent breached section 340 of the Act.

[12] The Respondent submitted that the Applicant was genuinely redundant and that they did not fully understand from the application what contraventions are alleged. The Respondent submitted that subsequent to this dispute being lodged, the Respondent had agreed that there were some outstanding overtime payments which were incorrectly paid at ordinary rates rather than the appropriate penalty rate and that they would be happy to rectify this. The Respondent submits that the new finance manager commenced an analysis of administration systems and structures soon after commencing in the role and that it became clear at the end of October that the Respondent was overstaffed in the administration team. The Respondent submits that a trial was conducted and that it was ultimately determined that the Applicant’s role was no longer required.

Law to be applied

[13] An application made under section 365 of the FW Act and the application must comply with section 366 of the Act.

[14] Section 366 of the Act states;

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[15] It is clear from the structure of subsection 366(2) of the FW Act that each of these matters must be taken into account when assessing whether there exist “exceptional circumstances”.

[16] Subsection 336(2) of the FW Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. In considering what are exceptional circumstances I have adopted the approach of Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 1;

“In summary, the expression “exceptional circumstances” 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

Consideration of the factors in subsection 366(2) of the FW Act

Subsection 366(2)(a) - the reason for the delay;

[17] There must be an acceptable reason for the delay. 3 The Applicant has advanced representative error as the reason for the delay.

[18] The Applicant’s representative, Mr. Coyle, submitted that an attempt was made to lodge the Form F8A on Friday 12 December 2014. The attempt to lodge was unsuccessful as the server “timed out” and further attempts were made to lodge the application electronically. Mr. Coyle submitted that he ultimately believed that the lodgement was eventually successful. However he noted that by close of business that day an email response had not been received from the Commission. On the next business day, Monday 15 December 2014, Mr. Coyle checked for return emails and also noted that the credit card payment did not appear on the bank account. A further attempt was made to lodge the application and this was successful.

[19] In short, the Applicant’s submission is that the delay in lodgement was a result of representative error and associated technology issues leading to a failure to successfully lodge the application on 12 December 2015.

[20] The Respondent submitted that the error on the Form F8 as to the date of termination should not have been made by a professional representative and that the representative should have raised the apparent failure to successfully lodge the application on 12 December 2014 with the Commission by sending an email. Irrespective, the Respondent asserts that the representative should have attempted to re-lodge the application over the weekend as online lodgement with the Commission is available “24/7”. Further, it was submitted by the Respondent that the representative should been aware of the aware of the requirements and representative error and technology issues should be no excuse after the fact.

[21] A late lodgement of an application due to representative error may be grounds for an extension of time. 4 There is a distinction where a delay is caused by the representative where the employee is blameless and when the employee has contributed to the delay.5 There is no suggestion in the circumstances of this matter that the Applicant has contributed to the delay. It appears that, as far as the Applicant was concerned, their representative was lodging the application within the time period required. The Applicant could not have reasonably been expected to follow up with the representative as to whether the claim was lodged in the time frame, as the application was successfully lodged before 11am on the next business day.

[22] I agree with the Respondent that the Applicant’s representative should be aware of the requirements for lodgement. However, there can be no suggestion, in the circumstances of this case, for the Applicant being held responsible for the failure of the representative to successfully lodge the application on 12 December 2015.

[23] I accept therefore that there is an acceptable reason for the delay in lodgement until 15 December 2015. This is a factor that weighs in favour of the Applicant. However, it is only one of the factors to be considered in deciding whether to extend the timeframe for lodgement.

Subsection 366(b) - any action taken by the person to dispute the dismissal;

[24] It is not apparent that any action was taken by the Applicant to dispute the dismissal beyond contacting Mr. Coyle and instructing him to lodge the application. However it is clear that the Applicant took that action within the relevant statutory time period. In the circumstances of this case I regard this consideration as neutral.

Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay);

[25] The Applicant has made no submission relevant to this consideration.

[26] The Respondent submitted it should not be prejudiced by the poor performance of the Applicant’s chosen representative. I have taken this to be a submission that the Respondent feels that there is prejudice to them if the application for extension is granted.

[27] There is no evidence that there will be prejudice to the respondent. 6 The delay in lodgement in this case is very short and unlikely to give rise to prejudice.

[28] However, the absence of prejudice is itself an insufficient basis for granting an extension of time and in the circumstances of this case, I regard this factor as neutral.

Subsection 366(d) - merits of the application;

[29] On the face of the material submitted, it appears uncontested that that the Applicant exercised a workplace right, that being the query about her entitlement to payments for overtime. The termination of employment of the Applicant was adverse action taken by the Respondent against the employee within the meaning of the FW Act. The applicants’ allegation is that the adverse action was taken because she had exercised or proposed to exercise a workplace right and that the adverse action was taken in contravention of s.340 of the FW Act. Given the terms of section 361, which provides for the reason alleged for the action to be presumed unless proved otherwise, the Applicant’s application is not without merit.

[30] The ultimate determination will depend on findings of contested facts. Most significantly in the circumstances of this case, there is a contest over whether the redundancy was brought about because of the Applicant raising concerns about underpayments and this will be a key aspect of the case.

[31] In determining an extension of time application, the Commission should not embark on a detailed consideration of the substantive case. 7 However, on what has been submitted, the Applicant’s case is not without merit.

[32] The Applicant’s claim for payment for overtime is followed shortly thereafter with what I consider a rather unusual approach of standing down the Applicant in order to “trial” the business without her being present in the workplace. There is then a decision to make the Applicant’s position redundant on 20 November 2014 which is communicated to the Applicant the following day, without any apparent consultation with the employee (although there were general discussions regarding a restructure prior to the Applicant exercising her workplace right).

[33] Having considered the material regarding merits of the case I find this factor weighs in favour of the Applicant.

Subsection 366(e) - fairness as between the person and other persons in a like position.

[34] This matter may relate to fairness in matters of a similar kind that have been decided in the past. 8 As discussed earlier, there have been a number of matters where representative error, where the Applicant is blameless, have led to extensions of time being granted. Of course, this factor must be considered amongst all others set out in section 366 (2).

Conclusion

[35] In Grant v CSL Limited T/A Bio CSL 9, Deputy President Gostencnik stated as follows;

“The statutory time limitation applicable to the exercise of a person's right to make a general protections dismissal related application is an expression of Parliament's intention that rights must be exercised promptly within a particular time so as to bring about certainty. Time limitations seek to balance one person's right to bring an action, against another person's right to know with certainty that questions about actions that they have taken will be agitated within a particular period, otherwise that right is lost.” 10

[36] I have accepted that there is an acceptable reason for the delay, that being representative error. Given that the other factors to which regard must be had are either neutral or weigh in favour of the Applicant, I am satisfied taking into account all of those matters that there are exceptional circumstances which warrant consideration of whether to exercise the discretion to allow a further period within which the Applicant’s general protections dismissal application may be made. I have not found any factors which would weigh against the exercise of my discretion and having concluded that there are exceptional circumstances I am persuaded to exercise my discretion to allow the Applicant a further period within which to lodge her application.

[37] Accordingly I allow the Applicant until 15 December 2014 to make an application under section 365 of the FW Act. An Order to that effect is issued separately. 11

[38] A conference will be conducted pursuant to section 368(2) for the purposes of dealing with the dispute. A notice of listing scheduling the conference will be issued separately.

COMMISSIONER

 1   [2007] AIRC 848

 2   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848, [10]

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230]

 4   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59

 5   Ibid

 6   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16]

 7   Kyvelos v Champion Socks Pty Limited (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14].

 8   Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29].

 9   [2015] FWC 135

 10   Grant v CSL Limited T/A Bio CSL, [2015] FWC 135, [30]

 11   PR563003

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