Deborah Vaughan v Bunnings Group Ltd T/A Bunnings Warehouse Rockingham

[2015] FWC 6275

[2015] FWC 6275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Vaughan
v
Bunnings Group Ltd T/A Bunnings Warehouse Rockingham
(U2015/6517)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Deborah Vaughan alleged that the termination of her employment by Bunnings Group Ltd (Bunnings) on 10 May 2013 was unfair. Bunnings objected to Ms Vaughan’s application on the grounds that she was not dismissed but resigned her employment and it was lodged out of time.

[2] Ms Vaughan’s unfair dismissal application lodged on 17 July 2015 was not made within 21 days of the date of the dismissal.

[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] At the time Ms Vaughan submitted her resignation, she was under investigation by Bunnings. It was her evidence that Bunnings took five months to complete the investigation and after it was completed, she was charged by the police. That matter went to court in June 2015 and the charges were dismissed. Ms Vaughan gave evidence that she did not consider she could make an application until she had cleared her name and she made the claim within 21 days of the charges being dismissed.

[6] Ms Vaughan did not think she met the criteria, presumably that her resignation was a dismissal, until there had been a finding in relation to the allegations. Ms Vaughan said she was unaware that she could make a claim with police charges hanging over her head.

[7] There was no evidence that Ms Vaughan sought any advice in relation to her dismissal.

[8] It is clear that at the time Ms Vaughan resigned her employment she had not been charged by the police. On her own evidence, Bunnings was conducting an investigation. She was not charged until well after the 21 days had passed. She could have lodged her application within that 21 days. Had she then be charged, she could either have continued with her application or sought an adjournment.

[9] Even if Ms Vaughan had a reasonable explanation for not lodging her application until the charges were determined, she did not file her application promptly after that date. She thought the 21 days commenced from that date. Ms Vaughan did not, having been advised that the case had been dismissed, have a further 21 days to lodge her application. She did not take any steps to determine if she had a further 21 days. She has not provided any explanation of why she thought she had a further 21 days.

[10] I do not consider that she has a reasonable explanation for the whole of the delay in lodging her application. This weighs against a finding of exceptional circumstances.

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

[11] Ms Vaughan was aware of the resignation when it took effect. She had the full 21 days to lodge her application. This weighs against a finding of exceptional circumstances.

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

[12] Ms Vaughan denied the allegations but she still resigned her employment. There was nothing in her resignation letter that advised that she considered that she was forced to resign. She did advise that she was under stress but did not attribute it to any cause. This weighs against a finding of exceptional circumstances.

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

[13] While submissions were made that Bunnings would suffer considerable prejudice due to the time since the events occurred, no evidence was called to support the submissions. I am therefore unable to find that any prejudice suffered by Bunnings is such as to weigh against a finding of exceptional circumstances.

(e) the merits of the application;

[14] For Ms Vaughan to succeed, she must first establish that she was forced to resign because of conduct or a course of conduct by her employer. The conduct relied upon was the investigation of the allegations. Without more, Ms Vaughan has little prospects of establishing that she was dismissed. If she was forced to resign, then I am unable to make an assessment of Ms Vaughan’s claim as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[15] It was submitted that other applications for extensions of time had been dismissed when the applicant has not provided a justifiable reason for late lodgment and it would be unfair to those in a similar position to Ms Vaughan if she was granted an extension of time. I do not consider that the submissions of Bunnings addresses this criterion. As Ms Vaughan has not made submissions on this criterion, I consider it to be a neutral criterion.

Conclusion

[16] I am not satisfied that there are exceptional circumstances. Ms Vaughan does not have a reasonable explanation for the delay in lodging her application. The merits of the claim are not so strong as to outweigh the other criterion. An extension of time will not be granted and the application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms D Vaughan on her own behalf.

Ms N Howells-Schramm for Bunnings Group Ltd.

Hearing details:

2015.

Melbourne:

September, 9.

<Price code A, PR571746>

 1   [2011] FWAFB 975.

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