Irène Brown v Greatley Appreciated Pty Ltd T/A MSP Photography WA

[2016] FWC 1746

[2016] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Irène Brown
v
Greatley Appreciated Pty Ltd T/A MSP Photography WA
(U2016/143)

DEPUTY PRESIDENT BINET PERTH, 18 MARCH 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.

[1] Ms Irène Brown (Ms Brown) has lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) asserting that she was unfairly dismissed from her employment with Greatley Appreciated Pty Ltd T/A MSP Photography WA (MSP).

[2] Subsection 394(2) of the FW Act provides that an application made pursuant to subsection 394(1) of the FW Act must be lodged within 21 days after the dismissal took effect. Subsection 394(3) provides that the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.

[3] Ms Brown’s application was lodged out of time and she has sought an extension to the lodgement time limit. In the event that the Commission decides to grant Ms Brown’s application for an extension, MSP have objected to the Commission hearing and determining Ms Brown’s application on the grounds that her dismissal was a case of genuine redundancy and that she was not therefore unfairly dismissed for the purposes of the FW Act.

Facts

[4] Ms Brown commenced employment with MSP in March 2014 as a photographer. MSP is a school photography service which is engaged by schools to undertake annual individual, family and class photographs of school children. Ms Brown transferred to a job share role as a receptionist in February 2015. Since that time her duties have been limited to reception and data entry duties.

[5] On Tuesday 8 December 2015 Ms Brown was informed that due to a downturn in demand her duties were to be shared among other office staff and her position made redundant. She was also informed that as there were no vacant positions to which she could be redeployed, her employment with MSP would terminate effective from 18 December 2015. Ms Brown was instructed that she would not be required to work during the notice period.

[6] Ms Brown gave evidence that when she visited the business premises on 17 December 2015 to return her uniform she observed a white board upon which customers who had cancelled and new customers were recorded. She claims that this board indicated that the number of new students gained was greater than the number which had been lost. She submits that this is evidence that there was no change in her employer’s operational requirements which would justify her dismissal on the grounds of genuine redundancy.

[7] In his witness statement Mr Greatley claimed that the number of client schools had decreased from 295 to 283 which represented a loss of 7,600 students. He said that the associated loss of income led him to restructure the business and that in addition to making Ms Brown’s role redundant, it was also necessary to make the positions of five photographers redundant. Ms Brown did not contest that a number of other employees were also retrenched as a consequence of the same restructure of the business.

[8] Ms Brown says that she became aware after she was dismissed from her employment that a new employee was engaged by MSP. Ms Brown therefore contests whether MSP has met its obligation to undertake reasonable efforts to redeploy her.

[9] In his witness statement Mr Greatley conceded that he had employed a new staff member. He says that this new staff member had been engaged in a new role, the primary focus of which was school liaison. According to Mr Greatley the new employee has particular experience (as a School Registrar) which Ms Brown did not possess which allows her to perform liaison and sales duties which Ms Brown did not perform. He also gave evidence that the telephone system has changed so that telephone calls are automatically directed and Ms Brown’s switchboard/receptionist duties were no longer required to be performed.

[10] Ms Brown lodged her application on 11 January 2016. She says that she did not initially plan to lodge an application but at the last moment changed her mind. She explained that a delay in lodgement occurred because she had difficulty obtaining an internet connection to electronically lodge her application.

Relevant Statutory Provisions

[11] Section 394 states:

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[12] It is uncontested that the termination of Ms Brown’s employment took effect on 18 December 2015. Her application was lodged electronically and received by the Registry in the early hours of Monday 11 January 2016. Her application was therefore 3 days late.

[13] As the application was made 3 days outside of the 21 day time limit, it can only be pursued if this time limit is extended.

[14] Section 394(3) of the FW Act provides that the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five nominated criteria. The principles are well established and set out in Nulty v Blue Star Group [2011] 203 IR 1 at [13]. In that matter the Full Bench held the following in relation to "exceptional circumstances":

“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.”

[15] In her application for an extension of time Ms Brown’s explanation for her delay in filing was that:

“Initially I was not going to lodge a claim for unfair dismissal against my employers for fear of repercussions. I am a single mother who had just signed a year’s lease on a house for me and my two children. I was worried that I wouldn’t be able to get a reference from my employer for the only full time job that I have had since being self-employed for twenty years. In my experience it can be very difficult for women over fifty to find work and having spent the last two years working for MSP I didn’t want to throw away the chance of being able to use my employers as referees for future jobs.

Although my initial thoughts were fuelled by fear, I reconsidered because nobody should be intimated into giving up their lawful rights. My claim was written on Friday 8^th of December, which was within the 21 day timeframe. I do not have a landline or internet connection so lodgement wasn’t straight forward and I lodged the form on Sunday evening. The application would have been in your office on Monday morning just the same as if I had lodged it at the end of business on Friday. Please consider accepting my late lodgement as an exceptional circumstance.”

[16] Ms Brown expanded on this explanation at hearing:

“The reason why I didn’t put my application in straight away was because I wasn’t going to, I’m 52, I’ve had my own business for 20 years, my marriage broke up, I’ve come to Perth. The only employment I’ve had where I could use a reference for is MSP Photography. I put 110% into my job and Mr Greatley even said that to me on a number of occasions and I didn’t want to be out there at my age looking for a job to support two children, without a reference from Mr Greatley., but then as time went along I thought no, this is completely wrong. I don’t want this to happen to other people, so I decided to put my application in and yes it was late, it was

…

I recently move in in the beginning of December, on the 9th of December, Telstra told me I couldn’t get a telephone line or internet service, I’m still waiting from December, to get a telephone service in my house and it make things a little be tricky to get my things sent on Friday.”

Consideration

Paragraph 394(3)(a) - The reason for the delay

[17] It is undisputable that the Applicant's unfair dismissal application was filed more than two days outside the 21-day limit mandated by the FW Act.

[18] Ms Brown says that she drafted her application on the final day of lodgement. She concedes that she decided to lodge the application at the last minute and the delay in lodgement occurred because she had difficulty with internet access. She admits that her difficulties in obtaining internet access had existed since she moved into her new residence on 9 December 2015. Despite being aware that this might pose an obstacle to her filing her application, she did not make alternative arrangements in order to ensure her application would be received on time. She ignored the time limit presuming that filing on the next business day following the due date of lodgement would be adequate. Unfortunately near enough is not good enough. Her failure to file on time was as a result of indecision and does not make the circumstances exceptional. This factor weighs against granting Ms Brown a further period to make her application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[19] It is uncontested that Ms Brown first became aware of her impending dismissal on 8 December 2015. The delay between that date and the filing of the unfair dismissal application weighs against granting the extension of time.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[20] No evidence was advanced by Ms Brown to rebut MSP’s submission that no steps had been taken to dispute the termination in the period between the termination and the filing of the unfair dismissal application. This factor weighs against granting Ms Brown a further period to make her application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[21] MSP submitted that the costs inherent in defending an unfair dismissal claim, if the Commission granted Ms Brown an extension of time, would be detrimental to the interests of the business at a time when it is experiencing a significant loss of revenue. The prejudice asserted by MSP also weighs against granting Ms Brown a further period to make her application.

Paragraph 394(3)(e) - The merits of the application

[22] There is insufficient material before the Commission to determine the merits of the application therefore this factor is neutral.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[23] Considerations of fairness relative to other persons in similar positions does not support an extension of time.

Conclusion

[24] For the reasons set out above, on balance, the Commission is satisfied that there are no exceptional circumstances warranting Ms Brown being granted an extension of time to lodge her application. Ms Brown’s failure to lodge her application on time was a consequence of indecision. There is nothing out of the ordinary course, or unusual, or special, or uncommon about this matter that would warrant the granting of an extension of time. Having refused to grant an extension of time it is therefore unnecessary for the Commission to determine whether Ms Brown’s dismissal was a case of genuine redundancy.

[25] An Order [PR578168] dismissing Ms Brown’s application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms I. Brown on her own behalf

Mr R. Jones of Atwick Ferres for the Respondent

Hearing details:

2016

Perth:

February, 29

Final written submissions:

Respondent, 8 March2011

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578167>