Jacqueline Schneider v Apollo Motorhome Holidays Pty Ltd

[2015] FWC 482

[2015] FWC 482 [Note: An appeal pursuant to s.604 (C2015/1610) was lodged against this decision - refer to Full Bench decision dated 24 March 2015 [[2015] FWCFB 1259] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jacqueline Schneider
v
Apollo Motorhome Holidays Pty Ltd
(U2014/13150)

VICE PRESIDENT HATCHER SYDNEY, 19 JANUARY 2015

Application for relief from unfair dismissal.

Introduction

[1] On 9 October 2014, Ms Jacqueline Schneider filed an unfair dismissal remedy application pursuant to s.394 of the Fair Work Act 2009 (Act) in relation to her dismissal from employment with Apollo Motorhome Holidays Pty Ltd (Apollo). The dismissal occurred on 5 September 2014, so that the application was filed 13 days after the 21-day time period prescribed by s.394(2)(a) of the Act. Accordingly it is necessary for Ms Schneider to obtain an extension of time under s.394(3) in order for her application to be competent.

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

394 Application for unfair dismissal remedy

(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.

[3] The nature of the decision-making exercise involved in relation to an extension of time application was described by the Full Bench in Lombardo v Commonwealth of Australia 1 as follows:

“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.”

[4] Circumstances will be exceptional if they are out of the ordinary course, unusual, special or uncommon, and may be constituted by a single exceptional matter. 2 Even if exceptional circumstances are found to exist, there remains a discretion to be exercised as to whether an extension of time should be granted.3

Facts

[5] The facts relevant to the extension of time application were as follows:

(1) Ms Schneider commenced employment with Apollo in the position of Inbound Sales Consultant in its Salamanda Travel business on 25 September 2013.

(2) Ms Schneider was dismissed on the ground of redundancy on 5 September 2014, in circumstances where Salamanda Travel had been in a loss-making situation for some time. She was told, and her letter of termination of that date repeated, that the position of Inbound Sales Consultant “was no longer needed in Australia” and that this was not a reflection on her performance.

(3) At the termination meeting, Apollo’s HR Manager, Ms Sandra Foerster, told her that Apollo was currently seeking to fill another casual role, and was interviewing applicants, and asked Ms Schneider if she was interested. Ms Schneider said she would think about it over the weekend.

(4) During the weekend, Ms Schneider sent text messages to her former Manager Mr Craig Spencer expressing an interest in the casual position, and on 9 September 2014 contacted Ms Foerster to confirm her interest. However, she was told that the position had already been filled. Unbeknownst to Ms Foerster as at 5 September 2014, the position had in fact been offered to another person that day. In the course of their discussion on 9 September 2014, Ms Foerster mentioned the possibility that another position might become vacant. During the conversation, Ms Schneider expressed a preference for casual work.

(5) On 22 September 2014 Ms Schneider saw an advertisement on Seek for a casual position with Apollo. She then emailed Ms Foerster about this position and inquired why she had not been contacted about it. Ms Foerster said the advertisement was in error and in fact that it was a full-time position. Ms Schneider then sent an email (on 23 September 2014) saying: “OK, that’s fair enough. I am not interested in a permanent full time role at this stage, but I was interested in a casual role”.

(6) On 7 October 2014, Ms Schneider received a copy of an internal Salamanda Travel email of that day’s date which referred to “poor communication you have been receiving due to a recent staff member’s departure in our Australian Office. We expect to have our newest team member on the phones from next week”.

(7) This email caused Ms Schneider to doubt the genuineness of her redundancy. She did some research into the issue, and filed her application two days later.

(8) The 7 October 2014 email was referring to the fact that, during the course of September 2014, Apollo had made arrangements to outsource Ms Schneider’s principal job function to a call centre operator in the Phillipines, Beepo Pty Ltd. A Beepo employee, Erica Rodriguez, began performing that function during October 2014, and signed emails as “Reservations Office, Salamanda Travel Pty Ltd”. Ms Schneider was not aware of this prior to filing her unfair dismissal remedy application.

(9) On 29 October 2014 Ms Schneider was diagnosed by a medical practitioner as suffering “severe depression and stress after unfair dismissal”.

[6] Against this factual background, I will consider the specific matters identified in s.394(3).

Reason for the delay

[7] Ms Schneider relied upon three matters together as the reason for the delay: that Apollo had “kept her dangling” by indicating that there might be alternative work without actually offering anything; the receipt of information on 7 October 2014 that indicated her redundancy might not be genuine; and her suffering depression after having been dismissed.

[8] I do not consider that the first and third matters either singly or cumulatively with other matters constitute a satisfactory explanation for the delay. On the issue of alternative work, it is reasonably apparent that Ms Schneider was only interested in casual work. Ms Schneider’s disappointment at not being given the casual role which was raised with her on 5 September 2014 is understandable, and some criticism might reasonably be directed at Apollo on that score. However, it was clear by 9 September 2014 that the role was not available. While beyond that point Ms Schneider may have hoped to be offered casual alternative work, there was no evidence that Apollo had any such work to offer her. The position which Ms Schneider saw advertised on 22 September 2014 turned out to be a full-time position, and Ms Schneider clearly expressed a lack of interest in it. Nothing occurred thereafter which could reasonably have indicated to Ms Schneider that she should delay taking action about her dismissal because of the prospect of alternative work.

[9] The medical diagnosis of depression post-dated the making of the application. It refers to the depression being caused by “unfair dismissal”. On Ms Schneider’s evidence, she did not consider her dismissal to be unfair until she saw the email on 7 October 2014. That makes it difficult to attribute the depression as a cause of delay before that time. There is no indication in the evidence that the depression was such as to disable Ms Schneider from making an application; indeed once she saw the email on 7 October 2014 she proved herself able to act promptly and effectively by lodging her application two days later.

[10] The principal matter relied upon by Ms Schneider is the email which she saw on 7 October 2014. From a subjective perspective, it is understandable that the email caused Ms Schneider to conclude that her position had not in fact been abolished and her redundancy was therefore not genuine. She had not been told her job was, effectively, being outsourced to a Filipino call centre, and the reference in her termination letter to her job no longer being required “in Australia” was not sufficiently clear to allow a reasonable inference to that effect. Insofar as Ms Schneider contends that her dismissal was unfair because it was not a genuine redundancy in that her position appeared to still be required to be performed by Apollo, then she had a reasonable explanation for her delay in filing the application. However, insofar as Ms Schneider contends that the other aspects of the genuine redundancy definition in s.389 concerning consultation and redeployment were not satisfied and her dismissal was unfair on that basis also, she has no reasonable explanation for the delay, since the facts relevant to those matters were known to her well before the 21-day period expired.

Whether the person first became aware of the dismissal after it had taken effect

[11] Ms Schneider became aware of the dismissal at the same time it took effect on 5 September 2014.

Any action taken by the person to dispute the dismissal

[12] Ms Schneider took no action whatsoever to dispute the dismissal prior to filing her application on 7 October 2014.

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

[13] No prejudice to Apollo is identifiable.

The merits of the application

[14] The evidence and other material currently before me is relatively extensive, and it is unlikely that there would be any significant additional material placed before the Commission were Ms Schneider’s application to go to hearing. The main facts are either not in dispute or clearly established by the evidence. It is therefore possible to make a realistic assessment of the merits of the application.

[15] The application of the definition of genuine redundancy in s.386 looms large in relation to this application. That definition has three limbs. The first is a requirement that “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”. That requirement is clearly satisfied here, in that Apollo no longer employs anyone to perform the principal function of Ms Schneider’s role, and has outsourced that function to another employer overseas. Although, subjectively speaking, the email which Ms Schneider saw on 7 October 2014 may have given a different impression, the objective position is quite clear.

[16] It is reasonably arguable however that the second and third limbs of the genuine redundancy definition - that is, the consultation (in this case, as required by the Clerks - Private Sector Award 2010) and redeployment elements - may not have been satisfied in this case. However, it does not necessarily follow from a conclusion that a dismissal on redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair. Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had replaced her. The evidence demonstrates that she was not replaced by Apollo and that her work was outsourced, as earlier explained. She could not therefore obtain a finding of unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s decision to restructure that business, provided a legitimate reason for Ms Schneider’s dismissal.

[17] It would therefore be necessary for Ms Schneider to argue that her dismissal was unfair because of insufficient consultation and a failure to redeploy her to the alternative casual position identified to her on 5 September 2014. That position is not devoid of merit and is arguable, but it cannot be assessed as having good prospects of success in all the circumstances.

Fairness as between the person and other persons in a similar position

[18] This consideration is not relevant to Mr Schneider’s application.

Conclusion

[19] Having taken the above matters into account, I consider that the discovery by Ms Schneider on 7 October 2014 of information relevant to her dismissal on the grounds of redundancy which caused her to doubt the genuineness of that redundancy was sufficiently unusual to constitute exceptional circumstances. It is therefore necessary for me to consider whether I should exercise my discretion in favour of granting an extension of time.

[20] I have concluded on balance, having regard to the matters specified in s.394(3)(a)-(f) which I have taken into account in the manner set out above, that it would not be fair or equitable to grant an extension of time. In reaching that conclusion, I have placed particular weight on three matters:

(1) Ms Schneider took no action whatsoever to contest or even question her dismissal within the 21-day period or before she filed her application on 9 October 2014.

(2) Subjectively speaking, it is reasonable that Ms Schneider, having seen the email on 7 October 2014, only formed the view at that time that Apollo had filled her position rather than abolishing it and that her dismissal was therefore not a genuine redundancy and was unfair. Objectively however, this principal aspect of Ms Schneider’s case is without merit. It is clear that Apollo outsourced to an independent business in the Philippines the main functions of Ms Schneider’s former position.

(3) Insofar as I have assessed other aspects of Ms Schneider’s case as having some merit and being arguable, they related to matters which were fully known to her well prior to the expiry of the 21-day lodgement period. She has no reasonable excuse for not filing an application in time in relation to those matters.

[21] Ms Schneider’s application for an extension of time to make her unfair dismissal remedy application is therefore refused.

VICE PRESIDENT

Appearances:

J. Schneider on her own behalf.

T. Kowalski on behalf of Apollo Motorhome Holidays Pty Ltd.

Hearing details:

2015.

Brisbane:

15 January.

 1   [2014] FWCFB 2288 at [21]

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

 3   Ibid at [15]

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