Helen Evans v Combined Warehousing Services Pty Ltd

[2014] FWC 173

[2014] FWC 173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helen Evans
v
Combined Warehousing Services Pty Ltd
(U2013/13121)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 8 JANUARY 2014

Application for relief from unfair dismissal.

Introduction

[1] On 30 August 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged in the Fair Work Commission (the Commission) by Ms Helen Evans (the Applicant) against her former employer, Combined Warehousing Services Pty Ltd (the Respondent).

[2] The application stated that the dismissal took place on 18 July 2013.

[3] The matter was listed for conciliation on 18 October 2013 but did not proceed as the Respondent objected to it on the grounds of it being out of time.

[4] I conducted a programming hearing by telephone conference on 13 November 2013.

[5] The Applicant represented herself and the Respondent was represented by Mr J. Wormington of Mc Donald Legal Pty Ltd. I granted permission to Mr Wormington to appear pursuant to s.596 of the Act.

[6] On 13 November I issued the following directions:

“Directions:

• The Applicant is to lodge their submissions re extension of time and casual status by COB Friday, 22 November 2013;



• The Respondent is to lodge their submissions in reply by COB Friday, 29 November 2013”

[7] A telephone hearing took place on 3 December 2013. Given the jurisdictional issue to be decided and the location of the parties (the Applicant was in Mudgee and the Respondent’s solicitor in Newcastle), it was agreed that I would decide the matter based on this hearing and the written submissions.

Background

[8] The Applicant was employed as an Administration Officer by the Respondent in Mudgee New South Wales from 6 November 2009. The original employer was Countrynet Transport (Countrynet) but there had been a transmission of business at the end of March 2011. The notification of dismissal was made on 17 July 2013 and the dismissal took effect on 18 July 2013. The application was therefore lodged over three weeks late.

[9] In her F2 form, the Applicant stated the reasons for the dismissal were:

● She received an email changing her job from full-time to part-time, she was not able to apply for the position and was terminated;

● She states that she was described as a “part-time employee” and worked regularly from 8.45 am to 2.00 pm Monday to Thursday and 8.45 am to 1.00 pm on Friday;

● She claims unpaid wages and entitlements and compensation for unfair dismissal.

[10] In its F3 form the Respondent stated the reasons for dismissal were:

● A full-time employee was required in the position and it was clear to the Respondent that the Applicant would not apply for such a position. The decision was therefore taken to terminate the Applicant;

● The Applicant was always a casual employee.

Legislative Provisions

[11] The two matters that fall for decision at this stage of the proceedings are the lateness of the application and whether the Applicant is protected from unfair dismissal as a result of her casual/part-time status.

[12] Section 394(2) and (3) provides as follows:

“394 Application for unfair dismissal 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.”

[13] The Applicant’s minimum employment period is in excess of the requirements of s.383. However, s.384(2)(a) provides:

“384 Period of employment

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and . . .”

Extension of Time

[14] The Applicant submits that she called the Commission’s number and Legal Aid in Dubbo the day after her dismissal (19 July 2013). She submitted a form on the internet on 2 August. It appears that it was a Fair Work Ombudsman “Workplace Complaint Form”. The first in-person appointment she could make with Legal Aid in Dubbo was 30 August. It was then that she discovered she had submitted the wrong form. The F2 form was submitted that day to the Commission together with the explanation for the delay.

[15] The Respondent denies that there are exceptional circumstances and argues the Applicant could have made alternative arrangements for legal advice.

[16] The Respondent further submits that the Commission should draw the inference that the Applicant was pursuing an underpayment of wages claim by lodging the original form with the Fair Work Ombudsman.

[17] The issue of what constitutes exceptional circumstances pursuant to s.394(3) has been considered in cases such as Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie Hanns), Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 and Cheval Properties Pty Ltd v Smithers (2010) FWA FB 7251.

[18] In Brodie Hanns Marshall J said:

“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

[19] In Nulty at [13] 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.

[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.”

[20] In the context of the circumstances of this case and in the interests of fairness and equity, I find that exceptional circumstances exist because:

● The Applicant sought to challenge her dismissal from the time she was advised of it;

● She lodged the F2 form as soon as she was advised that she had lodged the correct form;

● She was disadvantaged by her regional location;

● The employer suffered no prejudice through the delay. It should meet the merits of the Applicant’s claim.

[21] Accordingly, I grant an extension of time for the Applicant pursuant to s.394(3).

Employment Status

[22] The Applicant submits she was a part-time employee rather than a casual.

She relies on:

● The tax file number declaration which describes her as “part-time”‘

● Correspondence tendered from a Countrynet Director Mr Johanson which describes her as “part-time”.

[23] The Respondent relies on the following to support its contention that she was a casual:

● the Applicant never raised the question of her status despite being responsible for payroll or claimed sick pay, public holidays or annual leave;

● the Applicant was Grade 2 in the Clerks Private Sector Award 2010 [MA000002]. Her hourly rate was $24.21.The relevant rate including 24% casual loading was $24.16;

● wages records which supported her casual status;

● correspondence from another former Countrynet Director that the Applicant was a casual.

[24] I find, on the balance of probabilities, that the Applicant was a casual. It is clear that she was paid as such and never pursued claims for annual leave, sick leave etc.

[25] I also find that the Applicant comes within s.384(2)(a). She is therefore able to pursue her claim for an unfair dismissal remedy further.

[26] All of the evidence with respect to payment and hours of work, including that of the Respondent, supports the conclusion that the Applicant’s hours were regular (See [9] above). Indeed this was not challenged by the Respondent.

[27] It is also clear, absent the dismissal, that she had a reasonable expectation of continuing employment on a regular and systematic basis.

Further Proceedings

[28] Given my decision to grant an extension of time, pursuant to s.394(3), and that the Applicant is a person protected from unfair dismissal as a result of her status pursuant to s.384(2)(a), it is appropriate for this matter to be referred back to the Unfair Dismissals Team for further processing.

[29] I note that the matter has not yet been the subject of conciliation.

DEPUTY PRESIDENT

Appearances:

H. Evans applicant on her own behalf;

J. Wormington, solicitor for the respondent.

Hearing details:

2013

By Telephone:

November 13, conference;

December 3, hearing.

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