Cynthia (Cyndi) Tomlinson v Croft Developments Pty Ltd T/A Croft Developments

[2016] FWC 3471

[2016] FWC 3471 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2016/4174) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cynthia (Cyndi) Tomlinson
v
Croft Developments Pty Ltd T/A Croft Developments
(C2016/541)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 30 MAY 2016

Application to deal with contraventions involving dismissal.

[1] On 9 March 2016 Ms Cynthia (Cyndi) Tomlinson (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Croft Developments Pty Ltd (Croft Developments).

[2] The Applicant commenced employment with her employer on 16 March 2015. She has legal qualifications but was employed as a para-legal and personal assistant. She says that she was dismissed on 19 February 2016 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant received a letter on 19 February which was attached to the F8 notifying her of redundancy as a result of an organisational review. She received one week’s pay in lieu of notice and one week’s severance pay. The letter said that her employment had been with “Tutela Aged Care Pty Ltd/Civil and Engineering Contractors Pty Ltd (Civil)”. It was on Civil letterhead.

[4] The Applicant says that the redundancy was not genuine. Rather, she submits she was dismissed because she made a sexual harassment claim and because of her illness. Breaches of s.340 and s.351, in respect of sex, and s.352 are alleged.

Employer’s Response

[5] The F8A response by Croft Developments denied the claim on the basis that it was not the employer and therefore could not have dismissed the Applicant.

Applicant’s Further Application

[6] In response to the F8A on 20 March 2016, the Applicant lodged an application pursuant to s.586 of the Act seeking that the application be amended to add all of the legal entities within the “Croft Group”. There were some 12 of these which it is not necessary to list.

[7] The Applicant set out in detail the reasons why she put Croft Developments as the employer in the s.365 application. She submits that there are a range of entities which are used inter-changeably for different purposes and have the same directors and employees.

Relevant Legislation

[8] Section 366 of the Act provides:

366 Time for application

366(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).

366(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.”

[9] Section 586 is also relevant to this case:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

Commission Proceedings

[10] On 1 April 2016, directions were issued to the parties to file submissions with respect to whether the Commission should exercise its discretion to amend the application pursuant to s.586. This was done and the matter was listed for hearing on 26 April 2016.

[11] The Applicant’s case is that the commission should amend the application with respect to the employing entity so that the s.365 application, which was lodged in time, can be dealt with on the merits. Not to grant the application would be a substantial injustice that would prevent the substance of the dispute being dealt with. Given the complexity of the corporate structures, it was understandable that the Applicant did not correctly identify the employer in the application. She sets out, in some detail, the common activities of the various entities.

[12] If the application to amend the original application is granted, the Applicant submits that the original application is in time. In the alternative, if the application lodged on 1 April is treated as the date of lodgement, an extension of time should be granted pursuant to s.366(2).

[13] The Applicant’s employment contract, which was tendered, was with Tutela Aged Care Pty Ltd. However, the evidence was that she was employed by and paid by Civil. I am satisfied that the Applicant actually did work for a range of these corporate entities. I also accept that the entities were used for different purposes by the staff and directors of the Croft companies.

[14] Croft Developments submitted that the Applicant had originally been employed by Tutela Aged Care Pty Ltd but that her employment was assigned to Civil in June 2015. The Applicant was advised of this. From this time, all documentation referred to Civil as the employer.

[15] It is submitted that the Applicant’s dismissal was a genuine redundancy and that Civil was the employer at the time of the dismissal. The application to amend the application to add the additional entities should be rejected because the Applicant was aware that Civil was the employer. If this occurs, the General Protection application with respect to the correct employer would be out of time having been lodged 30 days after the dismissal took effect.

[16] I am satisfied that Civil was the employer at the time the dismissal took effect. At the hearing on 27 April, the Applicant agreed to narrow its s.586 application to that company.

[17] Having heard the respective cases, I decided to adjourn the matter so that:

● The parties could consider their positions.

● Hopefully the parties would negotiate.

● I would expedite the matter, by relisting it for conference/further hearing after which a decision would be made on the s.586 application and the s.365 application.

[18] The further telephone conference took place on 11 May 2016.

[19] The Applicant lodged a written submission which dealt with the matters that the Commission must consider in dealing with an application to grant an extension pursuant to s.366.

[20] Croft Developments lodged a written submission in reply to the Applicant’s written submission on the s.366 issues on 16 May 2016. It maintained its objection to the amendment of the application and to an extension of time being granted.

Consideration

[21] I am satisfied, as a result of the proceedings on 11 May that no agreement is likely to be reached. In that sense, the requirements of s.368(3) have been satisfied leading to the issuing of a certificate under that section. The question to be determined is whether there is a proper s.365 application before the Commission which has been lodged in accordance with s.366. If so, the parties to the certificate need to be identified Sean Doohan v Korr Electrical Pty Ltd[2016] FWC 2557.

[22] The original application was lodged in time on 9 March 2016. It is now agreed by all parties that it identified the wrong employer. It is agreed that the employer at the time the dismissal took effect was Civil.

[23] I am satisfied that this is an appropriate case for the Commission to exercise its discretion to amend the s.365 application pursuant to s.586, to insert the correct employer because:

● Given the complexity of the corporate structures, it was understandable for the Applicant to lodge against the legal entity which she thought was “in control”.

● It is not denied that Civil is a related company to Croft. There are interlocking directors and staff of the corporate entitles.

● The evidence was that the Applicant performed work for a range of the entities.

● The Commission has a responsibility to deal with the real dispute without limitations of procedural defects. Mihajilovic v Lifeline Macarthur[2014] FWCFB 1070; Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660; David Djula v Centurian Transport Pty Ltd[2015] FWCFB 2371

● The initial response to the claim, in the F8A, was legalistic and obstructive. If the current employer had been pointed out, the matter would have moved quickly to the almost inevitable result, the issuing of a certificate pursuant to s.368.

[24] Accordingly, I amend the 9 March 2016 application to delete Croft Developments and insert Civil.

Application under s.366(2)

[25] Although I do not believe it is necessary given my decision to amend the 9 March 2016 which was in time, if I am wrong, I would grant an extension pursuant to s.366(2). I make that decision in accordance with the following:

Approach of the Commission

[26] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[27] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[28] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Matters to be taken into account pursuant to s.366(2)

[29] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[30] The reason for the delay in lodging the 20 March 2016 application was the failure to identify the employer correctly in the 9 March application. This could have been easily rectified within the time period by Croft/Civil. It was not the fault of the Applicant.

[31] I am satisfied that this constitutes exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[32] The Applicant took a range of actions to challenge the dismissal and attempt to negotiate a settlement.

(c) Prejudice to the employer (including prejudice caused by the delay)

[33] Croft/Civil have not assisted in the efficient disposal of this matter. I do not consider that they would be unduly prejudiced in the matter going forward to finalisation.

(d) Merits of the application

[34] It appears from the evidence so far that there is a real contest as to whether the operative reason for the dismissal was a genuine redundancy or whether this was used to disguise the general protections breaches.

[35] I consider that the merits of the application give some weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[36] This factor was not addressed and has not been taken into account.

Conclusion and Order

[37] In summary:

(a) I amend the s.365 application lodged by Cynthia Tomlinson on 9 March 2016 to substitute Civil and Engineering Contractors Pty Ltd as the employer.

(b) If necessary, I grant a further period for the making of an application under s.366(2) with respect to the 20 March 2016 application.

(c) A certificate pursuant to s.368(3) is now issued and attached to this decision. The parties named in the certificate are Cynthia Tomlinson and Civil and Engineering Contractors Pty Ltd.

DEPUTY PRESIDENT

Appearances:

C. Tomlinson, Applicant;

M. Nguyen, solicitor for the Respondent.

Hearing details:

2016

Telephone Hearing:

April 26;

May 11.

Final Written Submissions

2016

May 16, Croft Development/Civil.

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