Jennifer Mason v Protech Group (Aust) Pty Ltd

[2015] FWC 3331

[2015] FWC 3331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Mason
v
Protech Group (Aust) Pty Ltd
(U2015/983)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Jennifer Mason alleged that the termination of her employment by Protech Group (Aust) Pty Ltd on 6 February 2015 was unfair.

[2] Her unfair dismissal application lodged on 6 March 2015 was not made within 21 days of the date of the dismissal.

[3] Protech Personnel (WA) Pty Ltd lodged an employer response and in addition to objecting to Ms Mason’s application, because it was not lodged within 21 days, stated that Ms Mason had not served the minimum employment period because she had only been employed by them from 29 September 2014. It advised that she had previously been employed by Protech Personnel (NT) Pty Ltd.

[4] On 12 May 2015, I wrote to the parties and drew their attention to s.22(5) and s.22(7)(a) of the Fair Work Act 2009 which provides that service with an associated entity is recognized in certain circumstances. As a result, Protech advised my chambers that it did not press its objection that Ms Mason had not served the minimum employment period.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where 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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] Ms Mason gave evidence that because she was paid one week in lieu of notice she thought her dismissal took effect on 13 February 2015.

[8] Ms Mason’s letter of termination was dated 3 February 2015. In that letter she was advised that her employment was terminated effective immediately. It advised her that she would be paid five days in lieu of notice. Ms Mason said she was not given this letter until 6 February 2015. Ms Mason was also given a reference dated 17 February 2015 which advised she was employed until 13 February 2015.

[9] Protech submitted that there was no confusion about the date Ms Mason’s employment was terminated. It explained why the termination date on the letter predated the actual date of termination. It accepted that the termination date was 6 February 2015. It submitted that the reference contained a typing mistake.

[10] Ms Mason was due to file her application on 27 February 2015. Protech, by sending Ms Mason a reference in which it advised that she was employed until 13 February 2015 confused Ms Mason about the date her dismissal took effect.

[11] In those circumstances it was not surprising that Ms Mason formed the view that this was the date her termination took effect.

[12] I accept that Ms Mason had a reasonable explanation for the delay and this weighs in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[13] Ms Mason was aware of the dismissal when it took effect. She therefore had the full 21 days to lodge her application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[14] Ms Mason did not dispute her dismissal at the time. She said she was in disbelief that she had been dismissed. This weighs against extending time.

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

[15] There is no evidence of any prejudice to the employer if time were extended. This weighs in favour of extending time.

(e) the merits of the application;

[16] Ms Mason’s employment was terminated for performance reasons. It was her evidence that she received no verbal or written warnings that her employment was at risk. She disputed that she was not performing to the standards required.

[17] Mr Mark Lawton gave evidence of his concerns about Ms Mason’s employment. He gave evidence that he had regular discussions with Ms Mason about her performance. It was his evidence that without sales the office had no future. On his evidence it does not appear that Ms Mason was advised, prior to the decision being taken to terminate her employment, of the reasons for the proposed decision nor was she given an opportunity to respond. Nor does Mr Lawson give any evidence that Ms Mason had been warned that her performance was putting her employment at risk.

[18] I am not able to make an assessment of the factual dispute about Ms Mason’s performance as the evidence has not been tested but the evidence of Mr Lawton supports a finding that she was not afforded procedural fairness nor put on notice that her employment was at risk. The merits of the claim weigh in favour of extending time.

(f) fairness as between the person and other persons in a similar position.

[19] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[20] I consider that there are exceptional circumstances warranting the granting of an extension of time. After her dismissal Ms Mason was misled by Protech about the date her dismissal took effect. She lodged her application within 21 days of that date. The merits of Ms Mason’s claim are also in her favour. I therefore extend the time for Ms Mason to lodge her application and an order to that effect will issue. The matter will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

J. Mason on her own behalf.

N. Stewart for the Respondent.

Hearing details:

2015.

Melbourne, Perth and Brisbane, by video and phone link:

14 May.

 1   [2011] FWAFB 975

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