Emily Kearney v KAP Motors Pty Ltd T/A Kerry's Automotive Group
[2014] FWC 8651
•18 DECEMBER 2014
| [2014] FWC 8651 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emily Kearney
v
KAP Motors Pty Ltd T/A Kerry’s Automotive Group
(U2014/9541)
COMMISSIONER MCKENNA | SYDNEY, 18 DECEMBER 2014 |
Application for relief from unfair dismissal.
[1] Emily Kearney (“the applicant”) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning her dismissal by KAP Motors Pty Ltd T/A Kerry’s Automotive Group (“the respondent”). The parties are based in the Northern Territory. Following the allocation of the file to me, the matter was listed for telephone proceedings on a number of occasions with a view to attempting to settle the application. Settlement was not, in the end, reached - with the result the question of an extension of time now requires determination.
[2] The applicant commenced employment with the respondent in February 2014. It is common ground the applicant was informed of the termination of employment on 8 September 2014 and was that day given a week’s pay in lieu of notice. The termination of employment thereby took effect on 8 September 2014. Moreover, the applicant was given certain paperwork that day in connection with the termination of employment. The initiating application lodged by the applicant indicated at Q.3.2, among other matters, that the respondent’s Service Operations Manager “advised he had terminated [another employee’s] employment effective immediately and was doing the same with my employment with one week’s notice however effective immediately”. The applicant declined to sign a document presented to her in connection with the termination of employment. The applicant was particularly upset about the dismissal as she was pregnant, and informed the Service Operations Manager of that matter. The applicant was informed that she would be escorted to collect her belongings and the decision to effect the dismissal was final. On 1 October 2014, the applicant lodged this application.
[3] On 6 November 2014, I issued directions in connection with the determination on the papers of the question of extension of time, unless, for example, there were any contested matters of fact. The directions included the provisions of s.394 of the Act and a link to the Commission’s Unfair Dismissals Benchbook. There were no relevant contested factual matters arising in relation to the materials lodged by the parties concerning an extension of time. Moreover, the applicant confirmed on 12 December 2014 no materials had been lodged in response to the respondent’s submissions (and, it may be noted, none were specified in the directions as being required).
Applicant’s submissions
[4] The applicant submitted as follows:
“As I was paid for the week ending Friday 12 September 2014 by Kerry’s Automotive Group, I was under the impression my employment was terminated on 12th September 2014.
I was unaware of being ‘paid in lieu’ as described by [name of employee] due to the fact that at the time I was advised of my termination, I was advised I was being given ‘a week notice’.
I believed I had 21 days from the 12th of September 2014 to submit my unfair dismissal claim being 3rd of October 2014.
If it had been made clear to me I was paid in lieu rather than one week notice I would have ensured I submitted my documents by 29th September 2014.
I ask that you please consider an extension of time in this case due to this miscommunication.”
[5] The applicant’s submissions did not address any of the other statutory criteria.
Respondent’s submissions
[6] An overview of the respondent’s submission was as follows. The respondent objects to the application based on the fact the application is out of time. The applicant’s employment ceased on 8 September 2014, when she was dismissed and paid one week’s pay in lieu of notice. Where payment in lieu of notice is made, the dismissal usually takes effect immediately: Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 355. Therefore, the applicant’s dismissal took effect on 8 September 2014 and the application lodged on 1 October 2014 was out of time.
[7] As to the applicant’s submission she was under the impression that her employment terminated on 12September 2014, the applicant’s employment ceased on 8 September 2014 - which was the day of the dismissal. Upon the dismissal, the applicant was presented with a “Notice for Termination of Employment” which clearly indicated that employment ceased on 8 September 2014.
[8] As to the applicant’s submission she was unaware of being “paid in lieu” because she was advised she was being given a week’s notice, the respondent submitted that “paying out an employee’s notification period is also known as pay in lieu of notice”. The respondent also referenced earlier points its submissions in relation to the applicant’s belief the application could be lodged by 3 October 2014 and that if it had been made clear to her she was paid in lieu rather than one week of notice she would have lodged the unfair dismissal application by the relevant date. In this regard, the respondent’s submissions referred also to the information available from sources including various websites in relation to making an application for an unfair dismissal remedy. The respondent submitted the applicant’s request for an extension of time based on (what the applicant described as) a “miscommunication” and/or ignorance of the time for lodgement is not an exceptional circumstance Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14] (“Nulty”).
Consideration
[9] The provisions of the Act apposite to this decision read:
“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.
(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.”
[10] Notwithstanding the applicant’s submission she had cause to consider the dismissal did not take effect until a time coinciding with the expiry of the time period equivalent to the period for which the payment in lieu of notice was made, the circumstances do not support a conclusion the dismissal took effect on any date other than 8 September 2014. I accept the respondent’s submission the dismissal took effect on 8 September 2014. In consequence, the application was lodged out of time.
[11] The reason for the delay was based on the applicant’s misapprehension about the date the dismissal took effect (s.394(3)(a)). The applicant first became aware of the dismissal on 8 September 2014, albeit, as noted earlier, she was under a misapprehension that the dismissal had not taken effect given her (undisputed) submissions about her understanding of the operation of a payment in lieu of notice (s.394(3)(b)).
[12] Although the directions drew attention to the relevant statutory provisions and provided a link to relevant information, the parties’ submissions lodged pursuant to the directions in relation to the late application did not address any action taken by the applicant to dispute the dismissal (s.394(3)(c)); prejudice to the respondent (including prejudice caused by the delay) (s.394(3)(d)); the merits of the application (s.394(3)(e)); and fairness as between the applicant and other persons in a similar position (s.394(3)(f)).
[13] On a consideration of what is before the Commission, it seems to me that the considerations discussed in Nulty (which considered relevantly identical statutory provisions concerning extension of time) are relevant to this application. The Full Bench described matters as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
[14] The sole or principal reason for the late lodgement was a misapprehension by the applicant about when the dismissal took effect and, thereby, the date by which the application should have been lodged to be made within time. However, as noted in Nulty, “... an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” As noted earlier, neither party’s written submissions otherwise addressed other relevant statutory provisions and there is nothing thereby weighing in favour of, or against, an extension of time arising from the cumulative statutory considerations in s.394(3)(c)-(f) of the Act.
[15] The Commission may allow a further period for the application to be made under s.394 of the Act if satisfied there are exceptional circumstances. In this case, I have not been satisfied there are exceptional circumstances. As such, an order dismissing the application will issue with this decision.
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