Coby Strange v Nakamuras Pty Ltd T/A Nakamuras Pty Ltd
[2018] FWC 4648
•14 AUGUST 2018
| [2018] FWC 4648 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Coby Strange
v
Nakamuras Pty Ltd T/A Nakamuras Pty Ltd
(U2018/5231)
| Deputy President Gostencnik | MELBOURNE, 14 AUGUST 2018 |
Application for an unfair dismissal remedy; application made outside the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time refused; application dismissed.
Introduction
Mrs Coby Strange, the Applicant in this proceeding, was employed by Nakamuras Pty Ltd (Respondent) as a Retail Manager and commenced employment with the Respondent on a date which is in dispute on the materials. The Applicant contends she commenced employment with the Respondent on 18 May 2005. The Respondent contends the commencement date was 9 October 2006. However, the date of commencement of the employment is not significant for the purposes of deciding this application.
The Applicant was dismissed from her employment on 3 November 2017 by reason of redundancy due to a downturn in business.[1]
The Applicant lodged an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) on 21 May 2018. The application was lodged 178 days beyond the period within which an application for an unfair dismissal remedy is required to be made.[2] Therefore, the issue that must be determined in this matter is whether the Applicant should be allowed a further period within which the application may be made. A further period may be allowed if I am satisfied that there are exceptional circumstances.
Consideration
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.
Pursuant to section 394(3) of the Act, the matters that I need to take into account in considering whether I am satisfied that there are exceptional circumstances are:
· the reason for the delay;
· whether the Applicant first became aware of the dismissal after the date it took effect;
· any action taken by the Applicant to dispute the dismissal;
· prejudice to the Respondent including prejudice caused by the delay;
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
It is clear from the structure of s.394(3) that each of the matters need to be taken into account and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not be particularly significant when viewed in isolation, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
I will now turn to consider the particular matters to which regard must be had.
Reason for the delay
The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of any explanation for any part of the delay, will usually weigh against an Applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the Applicant’s favour, though it is ultimately a question of degree and insight.
The Applicant says that the reason for lodging her application outside of the time prescribed is because at the time of the termination she had just received confirmation that she was in the early stages of pregnancy and was not in a good frame of mind at the time of the termination.[3] The Applicant says that she considered it was more important to look after her own wellbeing as well as her unborn child. The Applicant further states that shortly after the termination, she suffered a traumatic miscarriage.[4]
In addition to her own evidence, the Applicant relies on two witness statements made by Mr Robert Strange, the Applicant’s husband, and Ms Bridget Boswell, which explain that at the time of the Applicant’s termination she was encouraged to look after her wellbeing and her unborn child’s wellbeing rather than pursuing the matter.[5] The witness statement of Mr Robert Strange states that the decision to pursue the matter came after it was brought to their attention in May 2018 that the position of Retail Manager that the Applicant once held had been replaced.[6] The Applicant also gave evidence that she decided to pursue the application after she became aware that the Respondent had appointed a person to a position that the Applicant believed was the same or substantially the same as that which she had occupied at the time of her dismissal.[7]
The Applicant did not make any enquiries about the position with the Respondent.[8] Although the Applicant considered that her dismissal was unfair at the time it occurred[9] she did not make an application because she did not think she “had a chance” of succeeding.[10] In late January 2018, less than three months after her employment with the Respondent ended, the Applicant commenced employment with another employer and she continues to be employed.[11]
The Respondent submits that there has been no medical evidence provided by the Applicant showing that she was unfit to file an application during the prescribed 21 day period. The Respondent further submits that although there may be a satisfactory reason for a short delay in filing in November 2017, there is no justification for a six month delay.[12]
There is a lack of medical evidence to support the Applicant’s explanation for the delay. But even if I were to accept that explanation, that would account only for a short period compared to the totality of the delay. The Applicant commenced new employment in late January 2018. She continues in that employment. Such disability as might have followed the Applicant’s miscarriage, which I accept is likely to have impacted the Applicant’s ability to lodge an unfair dismissal remedy application, had plainly dissipated in January and since. The Applicant self-evidently had capacity to look for and obtain employment. She had capacity to continue in that employment. She had capacity therefore, in my view, to bring an unfair dismissal remedy application from early January 2018.
The delay during the period following early January 2018 is explained only by the fact that, although the Applicant had earlier believed her dismissal to be unfair, she did not think she would succeed in challenging the dismissal, she thought she did not “have a leg to stand on.”[13]
That which triggered the application was the knowledge obtained in late May 2018, that an existing employee of the Respondent was now performing a role which the Applicant believed was the same or substantially the same as the Applicant’s former position. Though this may in some circumstances provide an acceptable explanation for the delay, given my assessment of the merits of the application and for the reasons that follow next, it does not in the circumstances of this case.
I am not persuaded that the explanation for the delay provided by the Applicant weighs in favour of the Applicant. The information of which the Applicant became aware in late May 2018 explains why the application was lodged on 21 May 2018. However, I do not consider that the explanation satisfactorily explains the lengthy delay. If the Applicant’s evidence that she believed her dismissal to be unfair at the time it occurred is to be accepted, and for present purposes I accept, then the knowledge acquired in late May 2018 does not explain why the application was not made at an earlier time. In truth, it appears the Applicant was moved to lodge the application because she thought the information would bolster her prospects of succeeding in a case which she had hitherto believed had little chance of succeeding. That the Applicant had made a calculated assessment of her prospects at an earlier stage suggests the making of a considered decision not to proceed with an application. In the circumstances, I consider this factor to weigh against the Applicant.
Whether the Applicant first became aware of the dismissal after the date it took effect
The Applicant was notified of the restructure and possible termination of employment during a meeting on 20 October 2017. The Applicant was then notified of the termination by letter dated 1 November 2017 which indicated that the termination would take effect on 3 November 2017.[14] Therefore, the Applicant was aware of the ending of the employment on the day it took effect and had 21 days to lodge her application. This factor would normally weigh against the Applicant because she had the benefit of the full 21 day period to lodge an application. However, given the circumstances of the Applicant immediately after the dismissal, specifically in relation to her pregnancy and miscarriage, I consider this factor to be neutral.
Any action taken by the Applicant to dispute the dismissal
The Applicant acknowledges that she believed that the termination was unjustified at the time it occurred but was not in a good frame of mind to pursue it at that stage.[15] The Respondent contends that although the Applicant’s view on the termination was “unjustified”, the Applicant does not provide any examples of the termination being disputed or challenged.[16]
The Respondent states that the Applicant was called to a meeting on 20 October 2017 with Ms Krenz and Mr McSweeney where she was advised that the Retail Manager role would be abolished in two weeks’ time.[17] The Respondent further states that between 20 October 2017 and 29 October 2017, the Applicant continued to attend work and did not raise any queries in relation to the upcoming abolition of her position.[18]
In a letter addressed to Mr McSweeney dated 31 October 2017,[19] the Applicant set out factors which she wanted the Respondent to take into consideration after being made aware of her redundancy. In this letter, the Applicant also states that ‘she will leave BIA with a plethora of experience’ and she looks ‘forward to what the future has to offer’. The Applicant contends that she challenged the reasons for her termination in that letter in paragraph 4 where she states that she believed that ‘things were on the rise’ and she had no reason to believe otherwise.[20]
The Applicant submits that it was on 20 May 2018[21] when she became aware of certain information from a former work colleague which made her believe that a position had been created and filled which was similar or substantially similar to the one she had previously occupied.[22] Due to that information, the Applicant took action to dispute the dismissal by lodging an application for unfair dismissal remedy the next day.[23] The Applicant agreed to a degree that between the date of her dismissal and becoming aware of the filling of the position that she had accepted the dismissal.[24]
The Applicant further contends that she spoke to “Fair Work” who advised her to follow the channel she did and she also sought some legal advice from a colleague who is a lawyer who advised the Applicant to pursue the matter.[25]
The Respondent contends that the decision was made in May 2018 to appoint Olivia Triferis to the role of Retail Strategy Manager.[26] Olivia Triferis was previously the Administration Manager, occupying that role on a full-time basis, and on her appointment to the position of Retail Strategy Manager, the Administration Manager position was abolished. The Respondent has provided position descriptions for both the Retail Manager and Retail Strategy Manager positions[27] and states that the two roles are distinguishable in function and remuneration.
Therefore, I accept that the Applicant did not take any immediate action to dispute the dismissal but lodged an application almost immediately after becoming aware of certain information that made the Applicant believe the redundancy was not genuine. In effect the information which caused her to doubt the genuineness of the reason for dismissal did not come to the Applicant’s attention until 20 May 2018. Before that time, though she thought the dismissal to be “unfair”, the Applicant had for various reasons decided not to pursue an application and therefore had no reason to challenge or dispute the Respondent’s reason for dismissal. Though there was no step taken to dispute the dismissal before lodging the application, in the circumstances, I consider this factor to be neutral.
Prejudice to the Respondent including prejudice caused by the delay
In relation to the question of prejudice, the Respondent submits that it came to an agreement with the Applicant in good faith at the time of termination for the payment of her accrued contractual entitlements, including a severance payment of $70,631.08, that the Applicant was allowed to keep her work mobile at no charge, that the Applicant was offered an opportunity to purchase her allocated company vehicle at a reduced price and the Respondent bore the costs associated with hosting a leaving function for the Applicant.[28] It is the Respondent’s submission that at the time of lodgement of the application, the Applicant had not suffered financial loss given the severance payment and the new employment she had obtained. The Respondent contends that it is prejudiced as it must defend the claim and bears the inconvenience, financial expense and loss in productivity in doing so.[29]
The Applicant does not consider that the lateness of the application has led to prejudice to the Respondent as she understood and believed at the time that her position was being made redundant.[30]
I accept that there will be some prejudice to the Respondent caused by the delay of the Applicant in lodging the application if it is to be allowed to be lodged within a further period, but this prejudice is not significant. I consider this factor to be neutral in the circumstances.
The merits of the application
A hearing to consider whether time should be extended, such as in this case, is essentially an interlocutory hearing which does not generally permit a review of the merits of the application on a substantive level. The question of whether an application was made within time, or whether a further period is to be allowed, is a matter that must be decided prior to considering the substantive merits. However, the Applicant’s case must be taken at its highest and viewed in the most favourable light in order to make an assessment about the merits.
On the Applicant’s case, the Applicant did not dispute the dismissal until she became aware of Olivia Triferis’ appointment in May 2018 and was of the belief that Ms Triferis was undertaking the Applicant’s previous role within the company.
The Respondent contends that the redundancy was bona fide and the Respondent adequately consulted with the Applicant about the workplace changes.[31] It seems that the Respondent reduced the numbers of employees, including the Applicant, in order to respond to its financial and trading position. In that sense it appears that the Respondent no longer wanted the job performed by the Applicant to be performed by anyone. That the duties or some of them were distributed to one or other employees will not, without more, change that fact. The consultation as was undertaken appears to be sufficient to comply with any applicable industrial instrument, and there is no suggestion that redeployment opportunities were available at or around the time of the Applicant’s dismissal. It appears on the materials that the Respondent has a reasonable explanation for the staff changes making internal adjustments, including that of Ms Triferis who is an existing employee, and does not appear to have increased staff levels after the termination of the Applicant.
In the circumstances, I consider the Applicant’s merits case to be weak. Consequently, this is a matter that weighs against the Applicant.
Fairness as between the Applicant and other persons in a similar position
Cases of this kind will generally turn on their own facts; however this consideration is concerned, inter alia, with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.
Neither party brought to my attention any matter concerning other employees of the Respondent or any other relevant decision or matter before the Commission in relation to this issue.
In the circumstances, I consider this factor to be neutral.
Conclusion
The time limit prescribed by the statute that is applicable to a person exercising their right to bring an unfair dismissal remedy application is an expression of the Parliament’s intention that the right should be exercised promptly. This is due to the importance of certainty, principally so that an employer who has taken a particular step can know that after the expiration of the 21 day period in the case of termination, that that will be the end of the matter. Ultimately, time limits seek to balance the right of a person to bring an action and the objective of the prompt resolution of matters.
However, it is also acknowledged that there will be some cases where a late application is warranted and should be accepted in the event that there are exceptional circumstances once all necessary matters have been taken into account.
Weighing all of the matters that I must take into account which are set out in s.394(3) of the Act and considering all of the evidence in this case, I am not satisfied that exceptional circumstances exist. All of the matters identified either weigh against such a conclusion or are neutral.
As a consequence, I do not need to consider whether I should exercise my discretion to allow a further period within which the application should be lodged. As such, the application is refused.
The application is dismissed. An order giving effect to this decision is separately issued in PR609874.
DEPUTY PRESIDENT
Appearances:
C Strange, Applicant.
M Ivanovski of Chamber of Commerce and Industry WA Inc. for the Respondent.
Hearing details:
2018.
Sydney and Perth (by telephone):
August 3.
[1] Exhibit 4, Attachment KLK8
[2] Fair Work Act 2009 (Cth) s. 394 (2)
[3] Exhibit 1
[4] Ibid
[5] Exhibits 2 and 3
[6] Exhibit 3
[7] Transcript PN 32 – PN33; PN37
[8] Transcript PN36
[9] Transcript PN46
[10] Transcript PN115
[11] Transcript PN110 - PN111
[12] Respondent’s Outline of Submissions dated 9 July 2018 at [11]
[13] Transcript PN241
[14] Exhibit 4, Attachment KLK8
[15] Exhibit 1
[16] Respondent’s Outline of Submissions dated 9 July 2018 at [11]
[17] Exhibit 4
[18] Ibid
[19] Ibid, Attachment KLK5
[20] Transcript PN62 - PN63
[21] Transcript PN52
[22] Exhibit 1
[23] Transcript PN37, PN53
[24] Transcript PN38
[25] Transcript PN83 – PN86
[26] Exhibit 4
[27] Ibid, Attachment KLK11
[28] Respondent’s Outline of Submissions dated 9 July 2018 at [14]
[29] Ibid at [15]
[30] Exhibit 1
[31] Ibid at [16]
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