Gail Hannan v ECS Group [Aust] Pty Ltd T/A Macedon Ranges Hotel & Spa [formerly known as Macedon Spa Hotel]

[2015] FWC 8380

[2015] FWC 8380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gail Hannan
v
ECS Group [Aust] Pty Ltd T/A Macedon Ranges Hotel & Spa [formerly known as Macedon Spa Hotel]
(C2015/6105)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 3 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 16 September 2015 Ms Gail Hannan (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 ECS Group [Aust] Pty Ltd t/as Macedon Ranges Spa Hotel & Spa [formerly known as Macedon Spa Hotel] (the Respondent).

[2] The Applicant commenced employment with the Respondent on 27 November 2013. She was a casual hotel worker at the resort in country Victoria. She says she was dismissed on 25 July 2015 and the dismissal took effect on that day. She had received a payslip on 22 July which said she had “ceased employment”.

Alleged Contravention

[3] The Applicant was told that there was no more work for her. She had worked on weekends and occasionally during the week. The Applicant complained about the non-payment of superannuation and had made a number of other complaints about the running of the hotel. She submits that a breach of s.340 has occurred.

Respondent’s Submissions

[4] The Respondent says that the Applicant was not dismissed from her job. Rather she had indicated her intention to cease her employment.

Relevant Legislation

[5] 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.”

Approach of the Commission

[6] 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.”

[7] On 1 October 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 18 November 2015.

[8] The Applicant was self-represented. The Respondent was represented by Mr W. Woods, Ms E. Williams and Mr M. Etherington.

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

[9] 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

[10] The Applicant relies on her father’s illness as the main reason for lodging some 32 days out of time. Whilst she did act as a carer for him in the Dandenongs and he did not have internet access, this is not justification for the delay. On her own submission, she knew that the Respondent had advised her of her termination on or about 22 July through the note on her payslip, but the application was not lodged until 16 September. There were a number of options for her to lodge the application well before then.

[11] The reason for delay cited by the Applicant fell well short of establishing exceptional circumstances.

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

[12] The Applicant says that she was waiting on formal notification of her dismissal as the reason she did not dispute it.

[13] Given that I am satisfied that she was aware that she had been dismissed, I do not find this convincing.

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

[14] In my view, this factor is neutral.

(d) The merits of the application

[15] The Respondent argued that the Applicant had made her position untenable by her criticisms and indicated her intention to cease her employment. On the evidence tendered, I am not convinced that this is the case. There is ample evidence that the Respondent had firmly decided not to give the Applicant any more work.

[16] The s.340 allegation is that the Applicant was dismissed because she had complained about the non-payment of superannuation. The Respondent gives a plausible explanation in respect of this issue. In any event, there is a lot of evidence that the Applicant was dismissed because of her criticism of management, her attitude and the breakdown of her relationship with Mr Woods.

[17] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

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

Conclusion and Order

[19] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Gail Margaret Hannan under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Hannan, Applicant.

W. Woods and E. Williams with M. Etherington for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 18.

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