Hayley Gould v AJ Projects Pty Ltd ATF the AJ Watkins Trust T/A Stylit

[2015] FWC 3059

[2015] FWC 3059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Gould
v
AJ Projects Pty Ltd ATF the AJ Watkins Trust T/A Stylit
(U2015/4298)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Hayley Gould alleged that the termination of her employment by AJ Projects Pty Ltd (AJ Projects) on 16 February 2015 was unfair.

[2] Ms Gould’s unfair dismissal application, lodged on 25 March 2015, was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission for both parties to be represented by legal practitioners as neither party opposed permission being granted and I considered that the parties would not be able to represent themselves effectively.

[4] 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.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where 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;

[6] Ms Gould lodged an application in the Western Australia Industrial Relations Commission (WAIRC) on 3 March 2015 naming as her employer, The Trustee for AJ Watkins Trust t/as Stylit. The application was served on 6 March 2015. On 12 March 2015, the solicitors for AJ Projects advised that the trustee of the AJ Watkins Trust was AJ Projects Pty Ltd. That letter advised that AJ Projects Pty Ltd had been Ms Gould’s employer at all times and had been responsible for paying her wages. She was invited to withdraw her application because it was lodged in the wrong jurisdiction.

[7] As a result, Ms Gould’s solicitors conducted further inquires and discontinued the application in the WAIRC and lodged an application with the Commission on 25 March 2015.

[8] Mr Andrew Watkins, the Director of AJ Projects, gave evidence that Ms Gould knew the true identity of her employer at all times. Mr Watkins exhibited an ASIC entry which showed that the holder of the business name Stylit was AJ Projects Pty Ltd. He also exhibited a number of business documents completed by Ms Gould which stated that the name of the business was AJ Projects Pty Ltd. Further, he exhibited a payslip for Ms Gould which was clearly issued in the name of AJ Projects Pty Ltd.

[9] Ms Gould gave no evidence of why she instructed her lawyers to commence proceedings against The Trustee for AJ Watkins Trust t/as Stylit rather than AJ Projects Pty Ltd. Ms Gould, in response to a question by me, said that she had received payslips and in cross examination agreed that she prepared the pay slips.

[10] It was submitted that this was a case of representative error. It was accepted that a full ASIC search would have revealed the existence of AJ Projects Pty Ltd. However, it was put that Ms Gould was blameless as she instructed her solicitors to make the application and it was lodged in the wrong jurisdiction. It was also submitted that the delay after receiving advice from AJ Projects that it was in the wrong jurisdiction was due to the solicitors taking time to consider the issues raised. It further submitted that it was routine for employees to be unaware of the true identity of their employer.

[11] It is true that representative error is a factor that I can have regard to when deciding if there are exceptional circumstances. I accept that it was a representative error not to conduct a full ASIC search which would have revealed that the registered holder of the business name Stylit was AJ Projects Pty Ltd. It was also a representative error for no consideration to be given to whether there was a corporate trustee of the Trust. However, it is the conduct of the applicant that is relevant to assessing whether the representative error weighs in favour of a finding of exceptional circumstances.

[12] Here, presumably Ms Gould instructed her lawyers that she was employed by The Trustee for AJ Watkins Trust t/as Stylit. Given that Ms Gould prepared payslips for other employees in the name of AJ Projects, received her own payslips in the name of AJ Projects and prepared documents for AJ Projects in which she identified AJ Projects as the company with a trading name of Stylit, I accept the submission of AJ Projects that she cannot be seen as blameless, as she failed to instruct her lawyers about the true identity of her employer.

[13] In addition, once the true identity was revealed, it took a further 13 days to lodge the application. Ms Gould gave no evidence to explain the further delay.

[14] I do not find that Ms Gould’s explanation for the delay weighs in favour of granting an extension of time.

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

[15] AJ Projects submitted that this criterion was a neutral consideration.

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

[16] On 17 February 2015, Ms Gould’s solicitors wrote to the Trustee advising that Ms Gould was considering her options. That letter did not expressly dispute the dismissal. On 6 March 2015, Ms Gould lodged her unfair dismissal application in the WAIRC. I find that AJ Projects was on notice that Ms Gould was seeking advice in relation to her rights. Ms Gould made no submission on this criterion. This criterion is neutral.

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

[17] It was submitted that AJ Projects would suffer prejudice because after the 21 day period expired, it hired a replacement employee for one day per week. At the hearing, it conceded that given Ms Gould was not seeking reinstatement, that apart from the costs it would incur in defending the claim, it would suffer no prejudice.

[18] I do not consider any prejudice suffered by AJ Projects weighs against extending time.

(e) the merits of the application;

[19] Ms Gould submits that she was dismissed because of a relationship breakdown with Mr Watkins and not for any other reason. It was submitted by AJ Projects that this was a genuine redundancy. Alternatively, the submissions said there were performance and conduct issues. Mr Watkins did not give any evidence about the reasons for the dismissal.

[20] It was submitted by Ms Gould that it would create an injustice if an error which could happen to anyone prevented her meritorious claim from being heard and determined.

[21] Given the lack of any evidence from Mr Watkins about the reasons for the dismissal, I find that the merits weigh in favour of granting an extension of time.

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

[22] No submissions were made on this criterion. I consider it to be a neutral consideration.

Conclusion

[23] I do not consider that there are exceptional circumstances. I do not consider that the merits of the case are such as to outweigh the lack of a satisfactory explanation for the whole of the delay. Ms Gould’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr T Jardine on behalf of the Applicant.

Mr F Robertson of counsel for the Respondent.

Hearing details:

2015.

Hearing via telephone:

1 May.

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