Janet Potsch v Vyscot Pty Ltd T/A Captain Cook Cruises (WA)

[2015] FWC 1650

[2015] FWC 1650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Janet Potsch
v
Vyscot Pty Ltd T/A Captain Cook Cruises (WA)
(C2014/7489)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 14 APRIL 2015

Application to deal with contraventions involving dismissal.

[1] Ms Janet Potsch (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 October 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Vyscot Pty Ltd T/A Captain Cook Cruises (Vyscot - the Respondent) on 12 September 2014 in contravention of the general protections provisions in the Act. As the application had been lodged 25 days outside the statutory timeframe for lodgement, the Commission issued Directions on 26 November 2014 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Commission subsequently issued revised directions with Ms Potsch required to lodge all documentation in relation to the extension of time issue by 7 January 2015. Vyscot filed its material with the Commission on 21 January 2015.

[3] The directions issued invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the directions. Neither party asked to be heard on the matter.

[4] For the reasons set out below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Ms Potsch commenced employment with Vyscot on 15 January 2011 as a Front Office Administer and Ticket Sales. At the time of her dismissal Ms Potsch was working as the Reservation Supervisor. Prior to Ms Potsch’s dismissal, Vyscot embarked on a process of restructuring various parts of its business. On 12 September 2014 the Chief Executive Officer of Vyscot, Ms McAlindin, met with Ms Potsch. At that meeting Ms McAlindin informed Ms Potsch that as part of Vyscot’s business restructure, the role of Reservation Supervisor was no longer required and that as a result she had been made redundant with immediate effect.

[6] Ms Potsch was then provided with a letter of termination which confirmed that as a consequence of operational changes in the company her position was being made redundant. The letter indicated that Vyscot had decided to upskill many of the full time positions in the Ticketing department due to changes in the market and ticketing staff would in future hold tertiary qualifications in marketing or a related filed. The letter further stated that the Company had formed a view that Ms Potsch did not have the qualifications or skills for the new roles and there were no suitable alternative positions available.

The Relevant Legislation

[7] 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.”

Whether to allow a further period for the application to be made

[8] 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

[9] The reason identified by Ms Potsch for the delay in lodging her application was that she believed that she had lodged an application within the statutory timeframe for lodgement through the Commission’s e-filing facility. Ms Potsch contends that she lodged her application on 25 September 2014.

[10] Ms Potsch contacted the Commission by email on 20 October 2014 to follow up on the progress of the application she believed she had lodged. An email was sent in reply on 21 October 2014 advising Ms Potsch that it appeared that she had not lodged an application. According to Ms Potsch she registered on the Commission’s website on 25 September and made a claim for “wrongful redundancy (dismissal)” and it “looked as if it had taken my money as it offered me n (sic) the screen a receipt number.” Ms Potsch further contended that after this occurred, “Being in such a dark place I totally forgot to call to see how things were going with my application.”

[11] Vyscot in its submission highlighted the absence of any evidence to substantiate Ms Potsch’s submission on the reason for the delay.

[12] The Commission has interrogated its e-filing records in an effort to confirm Ms Potsch’s profile and the log of transactions via that profile. That interrogation has not identified any application from Ms Potsch having been filed via her registered profile. The interrogation also indicates that Ms Potsch’s profile was created on 28 September 2014 rather than 25 September 2014 as submitted by Ms Potsch. On 7 January 2015 Ms Potsch forwarded the Commission what she described as a copy of her application dated 26 September 2014. Her credit cards details were included on that application form, despite the form stating:

“Note: If you are lodging your application by email, credit card details must not be provided on this form. Please ensure that you have provided a phone number so that a staff member can contact you and ask for your credit card payment over the phone. You should expect a call within 7 days of the Commission receiving your application.”

[13] Beyond this, no evidence has been provided to support Ms Potsch’s contention that she had paid a filing fee.

[14] The absence of any evidence to corroborate Ms Potsch’s submission weighs heavily against the granting of an extension of time.

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

[15] Ms Potsch submits that at the meeting at which she was dismissed she asked whether she could be redeployed to a number of other positions, including lower level positions though she was advised by Vyscot that this was not possible. Beyond that it appears that Ms Potsch next disputed her dismissal when she lodged her general protections application, whether on 25 September 2014 or 28 October 2014.

[16] Vyscot points out that while Ms Potsch suggested that she took steps on 25 September 2014 to dispute the dismissal her application was not lodged until 28 October.

[17] Taken together these factors support a finding that Ms Potsch did take limited action to dispute her dismissal.

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

[18] Ms Potsch submitted that in her view “the only person who had prejudice caused is me the employee.”

[19] Vyscot made no submissions on this point.

[20] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[21] In her application, Ms Potsch contends that Vyscot had contravened ss.343, 348, 351 and 355 of the Act. However, Ms Potsch provided little, if any, material to substantiate her contentions in this regard.

[22] Vyscot contends that Ms Potsch’s application has no prospects of success as she was dismissed for genuine operational reasons. Vyscot further contends that Ms Potsch has not suggested how there is a connection between her termination and the sections of the Act that it is alleged to have contravened.

[23] Ms Potsch disputes that her former position is genuinely redundant. While that would be a relevant consideration in the context of an unfair dismissal application, it is not relevant to a general protections application. Beyond that, as noted above, there is nothing in Ms Potsch’s application or the material filed by her that points to or suggests a causative link between the decision to dismiss her and any of the general protections provisions of the Act.

[24] In those circumstances, the merits of the application appear less than compelling.

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

[25] No views were expressed on this point. I therefore consider it a neutral consideration.

Conclusion

[26] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[27] While problems with the Commission’ e-filing system might constitute exceptional circumstances in some instances, see Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 2, the evidence in this matter does not corroborate Ms Potsch’s contention that she lodged an application on 25 September 2014. Further, Ms Potsch submitted that she did not follow up regarding her application for some time because of the “dark place” she was in. In this regard, I observe that it is not uncommon for someone who has just lost their job to be despondent and/or distressed. Other than these factors, Ms Potsch was unable to identify any other factors which might be construed as exceptional.

[28] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[29] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

 1   [2011] FWAFB 975

 2   [2010] FWA 1394

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