Kara Tompkins v Cracka Wine Co Pty Ltd

[2015] FWC 8294

[2015] FWC 8294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kara Tompkins
v
Cracka Wine Co Pty Ltd
(C2015/4556)

DEPUTY PRESIDENT KOVACIC CANBERRA, 2 DECEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Kara Tompkins (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Cracka Wine Co Pty Ltd (CWC - the Respondent) on 14 April 2015 in contravention of the general protections provisions in the Act. As the application had been lodged 57 days outside the statutory timeframe for lodgement, the Commission issued Directions on 6 July 2015 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 Directions issued instructed both parties to attend a hearing on the extension of time issue. CWC subsequently requested the jurisdictional issue be addressed on the papers. Ms Tompkins consented to that approach as did the Commission.

[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[4] CWC is an online wine seller. Ms Tompkins commenced employment with the CWC on 6 January 2014 as a Content Coordinator/Data Entry Manager.

[5] In her application, Ms Tompkins states that she was verbally informed on 16 March 2015 that her role was to be made redundant but that no written confirmation of this was received. CWC on the other hand contends that Ms Tompkins was advised on 16 March 2015 that her employment would cease on performance grounds and that she was being given four weeks’ notice as per her contract of employment. CWC further contends that Ms Tompkins was aware of the termination of her employment at all subsequent times following 16 March 2015.

[6] On 9 April 2015 Mr Dean Taylor, the Chief Executive Officer of CWC, sent a text message to Ms Tompkins confirming the termination of her employment on 14 April 2015. Ms Tompkins dismissal took effect on that date.

[7] Following her dismissal, Ms Tompkins contacted two law firms, the first on 17 and 20 April 2015 and the second on 29 April 2015, and a barrister on 4 May 2015 regarding her circumstances.

[8] Based on the advice provided to her, on 5 May 2015 Ms Tompkins wrote to CWC asking for written confirmation as to her employment status. CWC responded that Ms Tompkins had not been made redundant and that she was terminated as per her previous discussions with Mr Taylor.

[9] On 27 May 2015, Ms Tompkins’ partner contacted her current legal advisers seeking advice about her rights. Ms Tompkins deposed that her partner was informed that she was out of time to lodge an unfair dismissal claim but that if there were exceptional circumstances that the Commission may grant a further period for the making of the application.

[10] Ms Tompkins’ legal advisers wrote to CWC on 9 June 2015 setting out a number of demands to resolve the dispute and requesting a positive response within 24 hours. CWC responded on 10 June 2015 rejecting Ms Tompkins’ demands.

[11] Ms Tompkins contends that she was dismissed because of her temporary absences on paid personal leave during September and October 2014 and March 2015. In her application, Ms Tompkins also contends that her dismissal was in contravention of s.340, 351 and 352 of the Act which respectively deal with protections relating to exercising or not exercising workplace rights, discrimination and temporary absence from work due to illness or injury. CWC contends that Ms Tompkins was dismissed as a result of on-going poor performance, not as a result of her use of paid personal leave.

[12] As noted above, Ms Tompkins’ application was received by the Commission on 1 July 2015, 57 days outside the statutory timeframe specified in s.366(1)(a) of the Act.

The Relevant Legislation

[13] 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

[14] 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

[15] In her application Ms Tompkins stated that she was unaware of the potential basis for a general protections application until receiving correspondence from Mr Taylor on 10 June 2015 which referred to her temporary absences. Mr Taylor’s letter was a response to correspondence from Ms Tompkins’ legal advisers on 9 June 2015. Mr Taylor’s response stated, inter alia, that Ms Tompkins’ absences on personal leave commenced within days of the conversations which Mr Taylor had with Ms Tompkins regarding her performance. The letter further stated that:

“On the 20 February 2015, it was observed that she was again on sick leave.” 1

[16] Ms Tompkins inferred from the letter that one of the reasons for her dismissal had been her temporary absences.

[17] On receipt of Mr Taylor’s response, Ms Tompkins submits that her legal advisers advised that she had grounds to make a general protections application but that the application would be significantly out of time. Ms Tompkins further submitted that in response to that advice she instructed her legal advisers to further attempt to resolve the matter directly with CWC and that on 26 June she provided instructions to her legal advisers to prepare a draft general protections application. Ms Tompkins also submitted that she provided instructions to file an application late in the evening of 30 June 2015, with the application lodged the following day 2. This sequence of events was confirmed by Ms Tompkins in her witness statement.

[18] Ms Tompkins in her submissions relied on the decision of Deputy President Sams in Cross and others v Bananacoast Community Credit Union Ltd T/A BCU (BCU) 3 in which exceptional circumstances for the delay were established on the basis that the applicants in that case were unaware of the true reason for their purported redundancy until after the 21 day time frame for lodgement had expired.

[19] CWC contended that the grounds on which Ms Tompkins cites as unlawful grounds were within her knowledge at all times. CWC further contended that Ms Tompkins was improperly relying on Mr Taylor’s ‘without prejudice’ letter of 10 June 2015 to account for the delay. CWC also submitted that Ms Tompkins had provided no reasonable explanation for the delay, particularly as she had sought legal advice within a period of time substantially prior to her application being lodged with the Commission.
[20] An analysis of the material before the Commission indicates that in the letter of 9 June 2015 to Mr Taylor by Ms Tompkins’ legal advisers states:

“Further, it was our client’s workplace right to take personal leave subject to a valid medical certificate and you and Crackerwines have taken adverse action to her interests because of that leave, namely confirming that she would not be required to attend the office further and then deducting payment from her accrued annual leave balances contrary to her contractual right to be paid normal wages for this period.

We are currently taking our client’s instructions about the preparation of her unfair dismissal or adverse action claim.” 4

[21] The above extract indicates is that prior to 10 June 2015 Ms Tompkins was already considering making a general protections application, albeit on slightly different grounds from those cited in her application. This undermines her submission that the grounds for her general protections application only came to light on 10 June 2015.

[22] Further, based on Ms Tompkins’ submissions, it is clear that she did not instruct her legal advisers to prepare a general protections application until 26 June 2015 and did not provide instructions for that application to be lodged until late on 30 June 2015. Both of those dates are well after Mr Taylor’s response of 10 June 2015. Other than Ms Tompkins instructing her legal advisers to attempt to resolve her concerns directly with CWC, she provided no reason as to why her application could not have been lodged earlier than it was. Further, no submissions or evidence was provided as to what, if any, steps were taken on Ms Tompkins’ behalf between 12 June 2015 when she advised her legal advisers to attempt to resolve her concerns directly with CWC and 26 June 2015 when she instructed her legal advisers to prepare a general protections application.

[23] Both of the above factors, in my view, differentiate the circumstances in this matter from those existing in BCU.

[24] I note also that Ms Tompkins sought advice from a number of different legal advisers regarding her circumstances in the immediate aftermath of her dismissal. It would be surprising if none of those advisers mentioned the options open to her and the 21 day statutory timeframe for lodging either a general protections or an unfair dismissal application.

[25] Taken together, these factors do not point to the existence of exceptional circumstances.

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

[26] Ms Tompkins refers to various instances in which she disputed the dismissal. In particular, Ms Tomkins highlighted her contact with two legal firms and a barrister in the aftermath of her dismissal, her letter to Mr Taylor of 5 May 2015 seeking clarification of her employment status and the correspondence of 9 June 2015 to Mr Taylor from her current legal advisers setting out a number of demands to resolve the dispute.

[27] CWC submitted that Ms Tompkins did not take any action to dispute her dismissal prior to 14 April 2015, despite the discussions regarding her termination on 16 March 2015. Further, CWC does not dispute that Ms Tompkins contacted the Respondent regarding her dismissal on 5 May 2015 after taking legal advice and highlights that it was Ms Tompkins’ partner, rather than Ms Tompkins herself, that sought legal advice from her current legal representatives in late June [sic May] 2015.

[28] It is not disputed that Ms Tomkins wrote to Mr Taylor on 5 May 2015 seeking clarification of her employment status. However, it is arguable that this constitutes action to dispute her dismissal. There can be no such doubt regarding the correspondence of 9 June 2015 to Mr Taylor from her legal advisers setting out a number of demands to resolve the dispute. Beyond this and as noted above, no submissions or evidence was provided as to what, if any, steps were taken on Ms Tompkins’ behalf between 12 June 2015 when she advised her legal advisers to attempt to resolve her concerns directly with CWC and 26 June 2015 when she instructed her legal advisers to prepare a general protections application.

[29] Based on the above, it is clear that Ms Tompkins did take steps to dispute her dismissal. However, it is also clear is that the main step to dispute her dismissal, i.e. the correspondence to Mr Taylor of 9 June 2015, occurred outside the 21 day statutory timeframe. This does not support a finding that there were exceptional circumstances.

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

[30] Ms Tompkins submitted that the delay in lodging her application would not cause prejudice to the employer, particularly as Mr Taylor’s letter of 10 June 2015 reflected a high degree of recollection of the circumstances surrounding her dismissal thereby demonstrating that an extension of time evidence would not present any risk of witness’ memory of events being diluted or issues regarding witness availability.

[31] CWC contends that it will suffer prejudice as a result of an extension of time being granted as Ms Tomkins seeks to rely on a ‘without prejudice’ document in establishing exceptional circumstances.

[32] In response, Ms Tompkins contends that the correspondence in question does not attract the ‘without prejudice’ privilege as it does not attempt to settle the dispute, nor does it contain any admissions or concessions.

[33] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[34] Ms Tompkins contends that the Respondent dismissed her as a consequence of her exercising her workplace right to be temporarily absent on paid personal leave.

[35] CWC maintained that Ms Tompkins had been dismissed as a consequence of consistent poor performance. Further, CWC submitted that Ms Tompkins had not adequately demonstrated that her claim had merit, adding that based on Ms Tompkins’ own timeline the grounds raised for the termination do not suggest that her absences were the reason for her termination.

[36] A review of the material before the Commission indicates that many of the facts in this matter are disputed. In those circumstances, I cannot conclude that the application is without merit, particularly given the references to Ms Tompkins’ absences on personal leave in Mr Taylor’s letter of 10 June 2015.

[37] As such, I consider the merits of the application to favour Ms Tompkins.

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

[38] Ms Tompkins stated that in her view it would be fair to grant an extension of time as this would be consistent with the decision in BCU.

[39] CWC submitted that it would be unfair to grant an extension of time as it had at all times engaged with Ms Tompkins by responding to her post-termination correspondence in a reasonable and almost immediate timeframe.

[40] As previously noted, in my view, the circumstances in this matter are different from those in BCU. Against that background, I consider this factor to be a neutral consideration.

Conclusion

[41] 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 (Nulty) 5in 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.”

[42] 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.366(2).

[43] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   Form F8 – General Protections Application Involving Dismissal at paragraph 23 of Attachment KT-3

 2   Outline of Submissions on Behalf of the Applicant at paragraphs 23-28

 3   [2012] FWA 7681

 4   Form F8 at paragraphs 14 and 15 of Attachment KT-2

 5   [2011] FWAFB 975

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