Jo-Anne Faulbaum v ClickView Australia Pty Ltd T/A ClickView

[2015] FWC 1747

[2015] FWC 1747

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jo-Anne Faulbaum
v
ClickView Australia Pty Ltd T/A ClickView
(U2015/3171)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 MARCH 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mrs Faulbaum has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with ClickView Australia Pty Ltd T/A ClickView (ClickView). At a telephone conference convened on 17 March 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mrs Faulbaum 's application was lodged on 18 February 2015. In that application Mrs Faulbaum advised her employment was terminated with effect from 19 January 2015. Mrs Faulbaum asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“On 19 January 2-15 I was terminated for reasons of redundancy.

On 12 February 2015 I saw on Seek.Com my job advertised as a “Technical Training and Sales Manager”.

I realized on this date that my redundancy may not have been genuine. This advertisement was listed some 24 days after my termination date being 29 January 2015.

I sought help from the Fair Work Ombudsman on 13 February 2015 and they advised me to contact the Fair Work Commission. I was then directed to go to its website where I found a Community Legal Service from which I sought legal advice.

On Tuesday 17 February 2015 I received initial legal advice from a Community Legal Centre.

I have made my application promptly as soon as practicable after having seen the advertisement and having received legal advice.

I can only assume that ClickView waited 24 days after my termination before listing the job on Seek.Com so as to ensure that I would fail to meet the strict 21 day deadline. I have been disadvantaged through no fault of my own.” 1

[3] On 19 February 2015 my Associate corresponded with both Mrs Faulbaum and ClickView and advised that the extension of time issue would be considered through a telephone conference on 17 March 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Faulbaum was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 10 March 2015.

[4] Additional information was received from Mrs Faulbaum in the following terms:

“1. On 13 January 2014 I commenced work at ClickView Australia Pty Ltd as a Regional Sales Manager for South Australia, based in Adelaide.

2. Upon my commencement I was placed on a 6 month probation period.

3. I successfully satisfied the performance requirements during this period having been advised by Violetta Apostolovski, National Sales Manager that she was more than happy with the level of customer satisfaction and my accomplishments during the 6 month probation period and that she was more than happy to continue my employment.

4. On 18 December 2014, which was my last day of work before going on annual leave, I received a telephone call from Violetta Apostolovski advising me of a possible role change for me in 2015 but it was to be discussed once I returned to work in the New Year and she phoned me to wish me a Merry Christmas.

5. During my annual leave I had been checking and responding to my work emails, even though I was on holiday in Kuala Lumpur.

6. On Friday 16 January 2015, which was my last day of annual leave, I received an email from Violetta Apostolovski asking me to meet with her on Monday 19 January 2015 at 1:00pm at the Coffee Club at Harbour Town, Adelaide. There was nothing else in the email. I no longer have possession of this email as it was sent to my work email address.

7. On Monday 19 January 2015, my first day back after annual leave I met with Violetta as arranged.

8. At this meeting, on Monday 19 January 2015, Violetta Apostolovski delivered the news of my redundancy stating that the role has been reviewed over the Christmas period and that it was decided that the position and role was no-longer viable in South Australia and existing members of sales and technical support staff would cover the Adelaide and South Australian region and all accounts would be transferred to the National Sales Manager based in New South Wales. (Copy of redundancy letter attached.)

9. I was given until 5:00pm that same day, 19 January 2015, to finish up.

10. I was not given the opportunity of a lesser role or the chance to move to another position within the company anywhere in Australia.

11. On 21 January 2015 I received the letter of redundancy.

12. From 20 January 2015 I have been actively seeking employment by visiting a number of employment websites and applying for jobs.

13. On Thursday 12 February 2015 I went onto Seek.com.au to investigate possible jobs, where I came across the position of Technical Training and Sales for ClickView in Adelaide South Australia. The job description depicted all of the aspects of my role.

14. This position with ClickView was posted Thursday 12 February 2015, some 24 days after my redundancy and the redundancy of the role of Regional Sales Manager here in Adelaide South Australia.

15. I then printed the Job advertisement from Seek.com.au (copy attached.).

16. I believe that ClickView knew that I wasn't able to apply for an Application for Unfair Dismissal past 21 days; hence they released the advertisement on day 24.

17. I believe that this advertised position is the same role as I had been performing as Regional Sales Manager in South Australia with the only difference being a change of title. I felt betrayed and treated unfairly. I then sought options and an understanding of my position in relation to an Unfair Dismissal Application and took the following actions:

a. On 12/02/15 in the afternoon I googled information in relation to Unfair dismissal and was guided to the Fair Work Commission website and saw that I could only make an application within 21 days of redundancy however there was further information with a possibility of an extension of time. I looked up further information the following day to contact someone for guidance.

b. On 13/02/15 in the morning I rang the Fair Work Commission and spoke to someone there who advised me to speak with the Fair Work Ombudsman. I called them straight away and followed phone prompts which advised to go back to the Fair Work Commission website. I then called Fair Work Commission, tried several phone numbers and followed prompts to once again and once again I was led back to the Fair Work Commission website.

c. On 16/02/15 in the morning I located on the Fair Work Commission website I was given notification of 2 possible websites to help, I entered the details of and found the details of the Central Commission Legal Service and contacted them straight away. I left a voice message for someone to return my call. This was around 10:30am.

d. On or around 17/02/15 I had a return call from a Lawyer from the Central Communities Legal Service in Adelaide. I arranged a time to meet with her on Wednesday 18/02/15 at 10:00am to seek further advice.

e. On 18/02/15: My husband, Dean Faulbaum and I met with the lawyer from the Central Community Legal Services and received further advice.

18. I ask the Commission to extend the time period for lodging my unfair dismissal application and believe that there have been exceptional circumstances for me not lodging the application on time.

19. The circumstances are:

a. The posting by ClickView of the advertisement on 12 February 2015 some 24 days after my redundancy thereby barring me from making an unfair dismissal application within 21 days.

b. I took actions to seek legal advice as soon as practicable from when I became aware of the possibility of my redundancy not being genuine, hence there has not been a long delay. I believe that there is no prejudice to the employer.

c. I believe that my case is meritorious of an extension of time.

d. I believe that I may have been disadvantaged through no fault of my own and request that in the interests of fairness an extension of time is granted by the Commission.” 2

[5] I note that Ms Faulbaum also provided her employment termination advice, a reference from ClickView, her job description and an online advertisement.

[6] The Employer’s Response to the application objected to the application on the basis that the termination of Ms Faulbaum’s employment was a genuine redundancy and also objected to the application on the basis that it was lodged out of time. In this respect, ClickView stated:

“In late 2014 and early 2015, ClickView conducted a review of its operational requirements in the South Australian market. In its review, ClickView identified an increasing client focus (particularly amongst secondary school clients) on the need for detailed technical support for ClickView’s products. It also identified that, Violeta Apostolovski (the National Sales Manager and Jo-Anne’s direct manager, who had 22 years’ experience with ClickView and its products and significant technical knowledge and experience) was already spending a significant proportion of her time providing technical support to South Australian school clients.” 3

[7] I note that ClickView also provided an employment chronology and comparison of the role undertaken by Mrs Faulbaum with what it described as the “new Technical Training and Sales Role”.

[8] Mrs Faulbaum participated in the telephone conference. Ms Jenkins and Mr Filetti represented ClickView. Mrs Faulbaum was given the opportunity to expand on the information provided to me. In this regard her advice was consistent with the information provided to me.

[9] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[10] 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.”

[11] On the information before me I am satisfied that the application was made some 10 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 4 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 everyday 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.”

[12] Mrs Faulbaum's reasons for the delay go to the extent to which she was genuinely made redundant and the time at which she became concerned that this redundancy was not genuine. Having considered the functions undertaken by Mrs Faulbaum and the role of the new position, I am not persuaded that these two functions are effectively the same. Further, I am satisfied that ClickView was able to restructure, after another employee, who was previously Mrs Faulbaum’s direct manager resigned her position in early February 2015. Further, even if Mrs Faulbaum only became aware of the position advertised by ClickView on 12 February 2015, I am not satisfied that this establishes a circumstance which should be regarded as exceptional for the purposes of an extension of time. Consequently, I am not satisfied that Mrs Faulbaum’s explanation for the delay is indicative of exceptional circumstances. It is clear from Mrs Faulbaum's application that she was aware of the termination of her employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Mrs Faulbaum pursued other actions so as to challenge the termination of employment. I am not satisfied that an extension of time of this magnitude would prejudice ClickView but this, of itself, does not provide a basis for an extension of time.

[13] In terms of the merits of the application, information which would enable a definitive conclusion about the genuine redundancy issue is not before me. Nevertheless, on the material before me I have significant doubt that Mrs Faulbaum will be able to establish that the redundancy was a sham. Notwithstanding this, I have concluded that the merits of the application should not be taken as a particularly persuasive factor support of, or in opposition to, the extension of time issue.

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

[15] Accordingly I have concluded that the material before me does not establish that Mrs Faulbaum's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR561982) giving effect to this decision will be issued.

Appearances (by telephone):

J Faulbaum on her own behalf.

R Jenkins and E Filetti for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 17.

 1   Form F2, para 1.4

 2   Statutory Declaration of Applicant

 3   Form F3, para 2.2

 4   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561981>