Erin-Louise Cardoo v Gotcha! Pty Ltd
[2012] FWA 4380
•23 MAY 2012
[2012] FWA 4380 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Erin-Louise Cardoo
v
Gotcha! Pty Ltd
(U2012/5429)
COMMISSIONER GOOLEY | MELBOURNE, 23 MAY 2012 |
Application for an extension of time.
[1] On 27 February 2012 Ms Erin-Louise Cardoo (the Applicant) made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the FW Act).
[2] The Applicant’s employment with Gotcha! Pty Ltd (the Respondent) ended on 25 November 2011. The application was therefore not made within 14 days of the date of the dismissal.
[3] The application was listed for an extension of time hearing on 14 May 2012.
[4] The Applicant was employed by the Respondent as a casual employee from May 2010. There was no dispute that she was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. 1 But for the fact that her application was lodged out of time there would be no dispute that the Applicant was entitled to file an unfair dismissal application.
[5] On 25 November 2011 the Applicant was told by the Respondent that her job was redundant. Her employment ended on that day.
[6] In determining whether to grant an extension of time, section 394(3) of the FW Act provides that Fair Work Australia must be satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay;
[7] The Applicant submitted that at the time of her dismissal she sought advice from the Queensland Working Women’s Service (QWWS) and her union. 2 She was told by the QWWS to consult a lawyer. It was her evidence that she could not afford to seek legal advice. It was her evidence that she was given conflicting advice from these bodies. The Applicant submitted that this conflicting advice arose because they provided her advice on the presumption that she was a casual employee when in fact she was a full time employee and “all advice should have been given to [her] as the full time employee [she] was.” 3It is not clear how the Applicant makes out this submission. Presumably her union and QWWS gave her advice based on her instructions.
[8] It is also not clear how advice as to unfair dismissal rights would have differed had the Applicant told her advisors that she was a full time employee. Casual employees like the Applicant have the same rights as permanent employees to claim unfair dismissal. There is no suggestion that casual employees who dispute the genuineness of their employer’s decision to terminate their employment due to redundancy have lesser rights than a permanent employee in the same circumstance.
[9] It was the Applicant’s evidence that at 4.15pm on 9 December 2011 she was advised that she could have a case and she needed to lodge her application. She did not lodge the application because she claimed there was insufficient time. She latter submitted that she had been told by her union that she was required to file witness statements at the same time that she lodged her application. 4 The Applicant raised this explanation for the first time in her closing submissions. There was no mention of this in any material filed by the Applicant. Given that this advice would not be given by any person with even the slightest knowledge of the unfair dismissal procedures of Fair Work Australia, I would not accept this submission without some corroborating evidence.
[10] In February 2012, after conducting some research she “became aware that [her] dismissal was ‘unfair’ and/or that the redundancy had not been dealt with as required by Fair Work Australia”. 5 It was her evidence that on 20 February 2012 she was told that an extension of time could be granted if there were exceptional circumstances and on 24 February 2012 she posted her application to Fair Work Australia which was not received until 27 February 2012.
[11] There was no evidence of any steps the Applicant had taken between early December 2011 and 20 February 2012 to seek advice in relation to her claim. It may be suggested that she did not know that it was possible to lodge an application late. There is no evidence that she sought advice in relation to this. Nor is there any evidence or submissions to explain why, when advised on 20 February 2012 that it was possible to lodge an out of time claim, she did not complete the form until 24 February 2012 and then posted it to Fair Work Australia rather lodging it by telephone, fax or email. 6
[12] The Applicant also submitted that she did not know until late January early February 2012 that the Respondent had employed someone “off site” to do part of her job 7 and that the Respondent had employed new employees in roles she could have performed.8
(b) whether the person first became aware of the dismissal after it had taken effect;
[13] The Applicant was aware of her dismissal at the time it took effect.
(c) any action taken by the person to dispute the dismissal;
[14] The Applicant in her F2 form filed with the Tribunal said that at the meeting with Mr Brian Petersen, the Respondent’s General Manager, on 25 November 2012 she told him she did not believe that the reason for the termination of her employment was because her position was redundant. Rather she told him it was “a personal matter particularly because the day before [she] had a lengthy conversation with Lydia about [her] working hours and the like.”
(d) prejudice to the employer (including prejudice caused by the delay);
[15] The Respondent was not able to point to any prejudice it would suffer other than a reference to other employees being able to take similar action outside the time limits set out in the FW Act.
(e) the merits of the application
[16] The Applicant submitted that she was misled by her employer as to her employment status. It was her evidence that she was not a casual employee but a full time employee. It was not disputed however that the Applicant was employed as a casual. It was her submission that the hours she worked meant she was truly a full time employee. She relied on clause 10 of the General Retail Award 2010 which describes full-time, part-time and casual employment and the predecessor state award the Photographic Employees’ Award - State 2003 which had provided that a casual was engaged for less than 32 hours ordinary hours in a week.
[17] It was the uncontested evidence of the Respondent that the Applicant’s hours of work varied and she worked an average of 32.46 hours per week. The Respondent did not dispute that there were times when the Applicant worked in excess of full time hours. Further the Respondent gave evidence that the Applicant worked additional hours because she asked for additional shifts and that she took advantage of the flexibility of being a casual employee. 9
[18] The Applicant submitted that her employment was regulated by the General Retail Award 2010. It is not clear how this award applied to her employment. However for the purpose of this application I will assume that the Applicant’s employment was regulated by an award which contained the standard types of employment clause and the standard consultation clause.
[19] The Respondent submitted that it had implemented technological changes which automated much of the work being performed by the Applicant. This was supported by evidence from Mr Bruce Polkinghorne 10 who provided software development services to the Respondent and Mr Brendan Johnstone11 the Executive Manager with the Respondent. This evidence was not contested by the Applicant. The Respondent also submitted that it had not employed anyone in the Applicant’s position. It had employed an Executive Assistant who commenced in February 201212 but there was no evidence that she was performing work previously done by the Applicant.
[20] Mr Timothy Frost a former employee of the Respondent was called to give evidence to support the Applicant’s claim that the Executive Assistant had been employed earlier than February 2012 and was doing her work. Mr Frost did not know when the Executive Assistant was employed. 13 He gave evidence that the Executive Assistant was in contact with photographers. This much is supported by the email sent by the Executive Assistant when she commenced employment in early February.14 However the Applicant brought no evidence to support her allegations that the Executive Assistant was doing her job or even a significant part of her job.
[21] The Respondent accepted that it had filled one position 2 months after the Applicant’s employment was terminated. 15 This occurred because of the resignation of another employee . The Respondent submitted that the position filled was not the same as the position occupied by the Applicant.16 There was no challenge to this evidence. The Applicant’s complaint was that she could have done this work.
[22] The evidence established that the work performed by the Applicant had been automated. There was no evidence that the Respondent considered any redeployment options for the Applicant. It is not clear from the evidence if the Applicant’s employment was regulated by an award. However for the purpose of this decision I am prepared to assume that the Respondent had an obligation to consult with the Applicant. Consequently for the purpose of this application I am prepared to conclude that the Applicant had an arguable case that this was not a genuine redundancy. 17
(f) fairness as between the person and other persons in a similar position.
[23] The Applicant submitted that other persons who were told to lodge an application 30 minutes before the time period for filing an application ended would also not have been able to do so.
Conclusion
[24] I am not satisfied that there are exceptional circumstances warranting granting an extension of time. The Applicant was advised to lodge her application in time. She could have done so but did not. I am not satisfied that the short period of time available after she was advised to lodge her claim meant that the Applicant could not have lodged her application in that time. I am not satisfied this is a case of representative error.
[25] I am not satisfied that the issues raised by the Applicant about status of the Applicant’s employment would have affected the advice given to her about her unfair dismissal rights, as casual employees like the Applicant, have the same protection from unfair dismissal as permanent employees. Her employment status may have changed the advice given to her about her entitlement to notice and redundancy pay but those matters are able to be pursued elsewhere.
[26] Further I am not satisfied that the employment of new staff by the Respondent two months after the Applicant’s employment ended materially changed an assessment of the Applicant’s claim that the redundancy was not genuine, that the Respondent failed to comply with its obligations under any award or that the Respondent failed to consider redeployment options.
[27] Further the Applicant was informed of these appointments in late January early February 2012 yet she did not lodge her claim until 27 February 2012. That she did not know that she could apply for an extension of time is not of itself a sufficient reason to find that there are exceptional circumstances.
[28] I therefore dismiss the application for an extension of time.
COMMISSIONER
Appearances:
E Cardoo on her own behalf.
B Petersen for the Respondent.
Hearing details:
2012.
Brisbane:
May 14.
1 Section 384
2 Exhibit A1
3 ibid
4 Transcript PN 296
5 Exhibit A1
6 See Fair Work Australia website
7 Exhibit A1
8 ibid
9 Exhibit R2
10 Exhibit R1
11 Exhibit R3
12 Exhibit R2
13 Transcript PN 98-100
14 Exhibit R2
15 Ibid
16 ibid
17 See section 389
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