Joanne Clements v Kimberly Clark Australia Pty Ltd

[2016] FWC 8085

[2016] FWC 8085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Clements
v
Kimberly Clark Australia Pty Ltd
(U2016/9769)

COMMISSIONER WILLIAMS PERTH, 9 NOVEMBER 2016

Termination of employment - extension of time.

[1] Ms Joanne Clements (Ms Clements or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Kimberly Clark Australia Pty Ltd (the respondent).

[2] The application was made on 26 July 2016.

[3] The respondent objects to the application on the ground that Ms Clements was notified of her dismissal on 4 July 2016 and so her application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Commission to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 of the Act below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[5] On 11 October 2016 a Notice of Listing was sent to the parties which advised that there would be a jurisdiction hearing which the parties were required to attend in person on Monday, 7 November 2016 at 10.00 a.m.

[6] The Notice of Listing explained that the fact as to whether Ms Clements was notified in writing of her dismissal on 4 July 2016 or 5 July 2016 is contested and that section 397 of the Act requires the Commission to hold a proceeding to resolve this. Consequently it was explained that a hearing would be held for the parties to give witness evidence on this point and any other matter relevant to section 394 (3) of the Act.

[7] Ms Clements was not in attendance at 10.00 a.m. on Monday, 7 November 2016. Consequently my associate rang the two phone number contacts provided by Ms Clement but there was no reply. A message was left for Ms Clements on her mobile phone to the effect that the hearing was due to commence and may proceed without her and she should urgently return the call.

[8] No call was received from Ms Clements so the hearing proceeded in her absence at approximately 10.15 a.m. At the conclusion of the hearing, at 10.30 a.m., Ms Clements had neither attended the hearing nor returned my associate’s phone call. As at the date of this decision there has been no contact by Ms Clements to the Commission.

The evidence and factual findings

[9] At the hearing evidence was given by Ms Amanda Cervonaro (Ms Cervonaro), the HR Manager, Mr Tony Costa (Mr Costa), the National Operations Manager and Mr Hisham Salim (Mr Salim) an IT Specialist.

[10] I accept the evidence of Ms Cervonaro and Mr Costa that on 4 July 2016 they met with Ms Clements. I accept based on the submissions of the respondent that Ms Clements was verbally advised at that meeting that her employment was terminated with effect from that day. I also accept the evidence of Ms Cervonaro that, as was discussed at the meeting, the same day at approximately 3.36 p.m. Eastern Standard Time an email was sent by her to Ms Clements which included the letter of termination and that shortly afterwards she confirmed by text message to Ms Clements that this letter had been sent. I also accept the evidence of Mr Costa that he was copied into this email sent by Ms Cervonaro on 4 July 2016 and that he received the email at the time it was sent. I accept the evidence of Mr Salim that on 4 July 2016 there were no IT issues that would have affected the sending or receiving of emails between email addresses of the respondent’s employees and that he has checked the email Ms Cervonaro referred to in her evidence and confirmed it was sent to Ms Clements at the time Ms Cervonaro stated it was and that it would have been received by Ms Clements either instantaneously or with a one or two second delay.

[11] The letter of termination to which Ms Cervonaro refers which was emailed to Ms Clements on 4 July 2016 was dated that day and has been previously provided as part of the respondent’s written materials to the Commission and to Ms Clements. The letter of termination amongst other things stated that her final day of employment was the same day, Monday, 4 July 2016.

[12] Ms Clements in her written submission said that the HR Manager spoke to her on Monday, 4 July 2016 stating that she was going to be made redundant and this will be final once she received in writing from the company a letter stating she was being made redundant and her pay-out. Ms Clements statement is that this email was sent to her on 5 July at 6.26 p.m. She says “Fair Work” told her that the 21 days was from the day after receiving notice from the company so therefore her 21 days actually started from 6 July 2016. Her statement says after being released from hospital her application was sent in on that day, 26 July 2016.

[13] To the extent there is a difference between the statement of Ms Clements and the evidence of the respondent’s witnesses as to the date on which she was advised of her dismissal I prefer the evidence of the respondent’s witnesses and find that Ms Clements was advised verbally during the meeting on 4 July 2016 that she was dismissed and that day she received an email with an attached letter of termination confirming that her dismissal took effect that day.

[14] Ms Clements dismissal took effect on 4 July 2016 and she was made aware of this on that date.

Are there exceptional circumstances?

The reason for the delay

[15] The reason put forward by Ms Clements for not making this application by 25 July 2016 and so within 21 days after her dismissal was that her dismissal did not take effect until 5 July 2016. The evidence discloses this was an erroneous belief and she had in fact been dismissed with effect on 4 July 2016 and she was notified of this both verbally and in writing that day.

[16] Ms Clements erroneous belief is not in the circumstances of this case an acceptable reason for the delay.

[17] I note that Ms Clements in her written statement mentioned she had been in hospital however that is the full extent of the information she has provided to the Commission and is not an acceptable reason for the delay.

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

[18] Ms Clements was aware of the dismissal the date it took effect.

Any action taken by the person to dispute the dismissal

[19] Ms Clements has not otherwise sought to dispute her dismissal.

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

[20] There is no suggestion that there is any prejudice to the respondent if a further period to apply was allowed.

The merits of the application

[21] The respondent submits that the dismissal of Ms Clements is beyond the jurisdiction of the Commission because it was a case of genuine redundancy. This submission explains that around 27 June 2016 Ms Clements was notified at a meeting that as a result of a restructure of the consumer sales division a preliminary decision had been made that her territory would be amalgamated into surrounding territories and her duties divided between the area sales managers in those territories. As a result her role would be made redundant.

[22] That decision to restructure it was submitted was made to increase efficiencies and productivity.

[23] Consequently consultations with Ms Clements commenced on 27 June 2016 and she was informed that the company was reviewing possible options for redeployment. Ms Clements had a meeting by teleconference on 1 July 2016 to discuss those redeployment options having been advised of potential redeployment roles by way of email on 29 June 2016. The respondent submits that Ms Clements responded via email on 29 June 2016 indicating she was not interested in any of the possible redeployment roles.

[24] As a consequence of this on 4 July 2016 Ms Clements attended a meeting where it was confirmed that her employment would end that day on the basis of redundancy.

[25] Ms Clements’ application explained in her view her the dismissal was unfair because another employee working in an area next to her who had just started at the company only eight weeks earlier kept his job and she believes she should have been moved to his territory as he was under probation at the time.

[26] Considering what both parties have put to the Commission there is little merit in Ms Clements’ application. The company is entitled to decide which employees it keeps in which positions when it reorganises its operations. Whilst Ms Clements is entitled to her view that others should have been made redundant and she should have kept her job that is not a basis on which the Commission would conclude her dismissal was harsh, unjust or unreasonable. There is little prospect of Ms Clements succeeding in her application.

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

[27] This is not a relevant factor in this matter.

Conclusion

[28] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided and the submissions. In this case there is no acceptable reason for the delay in making the application and there is little merit in Ms Clements’ application and there are no other factors weighing in favour of finding there where exceptional circumstances. There are no exceptional circumstances in this instance.

[29] In the absence of exceptional circumstances I cannot exercise the discretion available to permit a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[30] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

K. Paull on behalf of the respondent.

Hearing details:

2016.

Perth and Sydney (video hearing):

November 7.

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<Price code C, PR587372>