Jennifer Crisford v BG & TR Pty Ltd T/A Davie Digital/Port Displays
[2018] FWC 6719
•31 OCTOBER 2018
| [2018] FWC 6719 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jennifer Crisford
v
BG & TR Pty Ltd T/A Davie Digital/Port Displays
(U2018/9303)
| COMMISSIONER PLATT | ADELAIDE, 31 OCTOBER 2018 |
Application for an unfair dismissal remedy – extension of time – application granted.
Summary
Ms Jennifer Crisford has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with BG & TR Pty Ltd T/A Davie Digital/Port Displays (Davie Digital) which her form F2 Unfair Dismissal Application advised took effect on 4 July 2018.
The application was lodged on 23 August 2018.
Ms Crisford’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“On the 4th of July I was called to attend a Company meeting, offsite at the accountant’s office - Michael Chajka - Hilton SA. I drove myself and attended alone. Present for the company were Stuart Ramsay, Sandra Burner and Director, Graham Longmire. I was advised of a company restructure and thus my position being made redundant. Whilst I considered the decision harsh I accepted the decision in good faith to enable the company to continue trading. I was given no supporting paperwork at the meeting. Although requesting documentation of my redundancy both via email and phone I received nothing in writing until this week Tues 21.08.18 (sic). I received a letter from the company lawyer - Crawford Legal (attached). This letter states my termination as a ‘non genuine redundancy’ yet still gives no indication of the reason for termination. This is certainly not what was presented at the time of termination. Unfortunately until receiving the lawyer’s letter this week, whilst suspicious of the delay in the process I had nothing to substantiate an ‘unfair dismissal claim’. I feel at best my termination has been handled very poorly and at worst a deliberate and calculated attempt to ‘run over’ the 21 day time limit to apply for unfair dismissal. I have documented communications attempting to gather the required information over approx. 6 week time frame.”
On 19 September 2018, Davie Digital lodged a form F3 Employer Response which indicated that the dismissal occurred on 4 July 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
On 12 October 2018, my Associate corresponded with Ms Crisford and Davie Digital and advised that the extension of time issue would be considered at an Extension of Time Hearing. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Crisford was directed to provide a statement concerning the extension of time and any documents to be relied upon by 19 October 2018. Davie Digital was invited to file any material in reply by 26 October 2018.
On 19 October 2018, Ms Crisford provided written submission which are relevantly summarised as follows:
· On 4 July 2018, Ms Crisford was invited to attend a meeting with her employer. Mr Stuart Ramsay, Ms Sandra Burner (Human Resources manager) and Mr Graham Longmire (Director) were present at the meeting.
· At the meeting Ms Crisford was advised that the company was suffering severe financial difficulties and as a result would be restructured and that her position would be made redundant. Ms Crisford received no supporting documentation as to the terms of redundancy.
· Between 6 July and 3 August 2018 Ms Crisford was in communication with the employer seeking information and payment of her redundancy entitlements as per her employment contract.
· On 21 August 2018, Ms Crisford received a letter from the employer’s legal representative, Crawford Legal, dated 16 August 2018. The letter advised Ms Crisford of the following:
“In relation to the additional amount you have claimed as a redundancy payment, we are instructed that our client intends to employ another person to undertake the duties you were undertaking. Therefore, your role is not genuinely redundant. Accordingly, your employment was not terminated as a consequence of the redundancy of your position and you do not have a contractual entitlement to redundancy pay.” (emphasis added)
· Ms Crisford asserted that until receipt of the letter from Crawford Legal on 21 August 2018, she was unaware that her termination was not a case of genuine redundancy.
· On 22 August 2018 Ms Crisford lodged her application with the South Australian Employment Tribunal (SAET).
· On 23 August 2018, Ms Crisford was advised by SAET that she had lodged her application with the incorrect tribunal. On the same day, Ms Crisford lodged her application in the Fair Work Commission.
Davie Digital did not file any written submissions.
A Hearing was conducted by way of a telephone conference on 29 October 2018. A sound file record of the Hearing was kept. Ms Crisford represented herself and Ms Burner represented Davie Digital.
Ms Crisford relied on her written submissions.
Davie Digital made oral submissions to the effect that:
· The company is suffering severe financial difficulties, and as a result, the decision was made to restructure in order to continue trading.
· On 4 July 2018 Ms Crisford attended a meeting with the employer and she was advised of the company’s financial difficulties and that her position would be terminated.
· Davie Digital denies that Ms Crisford was offered redundancy.
· David Digital submitted that all times it operated under the belief that as a small business there was no requirement to make a redundancy payment.
· Davie Digital contends that it was unaware of the existence of the contract of employment produced by Ms Crisford.
· In or around August 2018 Davie Digital engaged Crawford Legal to respond to Ms Crisford’s letters of demand regarding redundancy payment.
· On 16 August 2018, Crawford Legal sent a letter to Ms Crisford outlining that she was terminated, the company intended to hire another employee to assume her position and therefore her role was not genuinely redundant and there is no contractual entitlement to a redundancy payment.
· Davie Digital advised that due to the financial circumstances of the company, one employee resigned and another two others were dismissed (one of which was Ms Crisford).
· Davie Digital asserts that at all times it communicated with Ms Crisford and her husband by email and telephone in an attempt to keep them updated as to the status of the matter.
Applicable Law
Section 394 relevantly states:
“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.”
This unfair dismissal application by Ms Crisford was made 28 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
This unfair dismissal application by Ms Crisford was made 28 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
Ms Crisford asserts that until receiving the letter from Crawford Legal on 21 August 2018, she accepted that her employment ceased by way of genuine redundancy. Upon receipt of the new information contained in the letter, Ms Crisford then believed that her dismissal was unfair. She and lodged her unfair dismissal application with the South Australia Employment Tribunal on 22 August 2018. On 23 August 2018, upon receiving the advice that she had filed her application in the wrong tribunal, she filed the application in the Commission.
If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances.[2]
The receipt of the new information that was otherwise not available, which was of material impact on Ms Crisford understanding of the basis of her dismissal, explains the delay from the date of dismissal until 21 August 2018. Ms Crisford has also explained the delay in lodgement post 21 August 2018 due to filing in the wrong jurisdiction.
I find that Ms Crisford has explained the entirety of the delay.
Whether the person first became aware of the dismissal after it had taken effect
Ms Crisford first became aware of the true nature of the dismissal on 21 August 2018.
Any action taken by the person to dispute the dismissal
No other action was taken to dispute the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
There is no submission that the granting of an extension of time represents prejudice to Davie Digital.
The merits of the application
In terms of the merits of the application, it appears that Davie Digital concedes that the redundancy was not genuine and accordingly I have regarded the merits as a factor in favour of an extension of time.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am satisfied that Ms Crisford’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted. An Order[3] reflecting this decision will be issued.
COMMISSIONER
Appearances:
J Crisford the Applicant.
S Burner on behalf of the Respondent.
Hearing details:
2018.
Adelaide.
29 October.
<PR701911>
[1] [2011] FWAFB 975.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[3] PR701912.
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