Kate Coghlan v Aldi Foods Pty Ltd as General Partner of Aldi Stores (A Limited Partnership) T/A Aldi Stores

[2015] FWC 7816

[2015] FWC 7816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kate Coghlan
v
ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores
(C2015/5339)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 13 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 11 September 2015 Ms Kate Coghlan (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant alleged that she had been dismissed by ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores (ALDI).

[2] The Applicant commenced employment with ALDI on 11 October 2011. She worked within ALDI’s Port Macquarie New South Wales store. She says that she was dismissed on 9 February 2015 and the dismissal took effect on that day. The application was therefore lodged over seven months out of time.

Alleged Contravention

[3] The Applicant submits that she was forced to resign. She had originally been told by the store manager that she could take unpaid leave to work for the Australian Electoral Commission (AEC). She was then advised by ALDI’s personnel manager that it was contrary to company policy to take paid work whilst on unpaid leave. The leave was therefore not approved. As her work had commenced with the AEC, the Applicant then in late February resigned, effective 9 February. She later applied for positions with ALDI but was unsuccessful. She filed this application after receiving legal advice. Breaches of s.340 and s.345 are alleged. It was agreed that the Applicant was covered by the ALDI Minchinbury Agreement 2012 [AE401806] (the Agreement).

Respondent’s Submissions

[4] ALDI denies that it forced the Applicant to resign. It submits that the Applicant resigned of her own accord when told the unpaid leave was not approved.

[5] ALDI further denies that there has been a breach of the General Protections provisions of the Act. The Agreement does not deal with unpaid leave and therefore cannot be the basis of a workplace right.

Relevant Legislation

[6] 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.”

Approach of the Commission

[7] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[8] On 21 September 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 2 November 2015.

Matters to be taken into account pursuant to s.366(2)

[9] 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

[10] Even if the Applicant was able to demonstrate that this was a constructive dismissal, the lengthy delay in filing has not been explained. The Applicant applied for positions in April and May. It was only when she was not successful that she sought legal advice. The Applicant submitted that her employment ended on 25 August when she received legal advice. This is not consistent with her applications for new positions. The Applicant says that she had been “promised that she could return to ALDI”. Even if this is right, it does not show that her employment had not ended. The Applicant had a number of opportunities to file the application but did not do so.

[11] The reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[12] There is a conflict of evidence as to whether the Applicant actively contested that she had been forced to resign. There is no evidence that this allegation was put formally to ALDI until the application was lodged. The Applicant was acting as if she was applying for new positions. This evidence does not support a finding of exceptional circumstances.

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

[13] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[14] The Applicant would need to establish, initially, that she was forced to resign so it was a constructive dismissal. Based on the evidence filed, it seems to me that would not be easy.

[15] The workplace right that the Applicant was seeking to exercise was, it was submitted, the right to flexible work arrangements, pursuant to the Agreement. There would be an argument as to whether this was the issue or whether ALDI’s discretion to grant unpaid leave is the subject of dispute. I note that the dispute settlement clause in the Agreement was not accessed.

[16] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[17] This factor was not addressed and has not been taken into account.

Conclusion and Order

[18] Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Kate Coghlan under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Bice, solicitor with K. Coghlan, applicant.

M. McNaughton, solicitor with L. Parsons for Aldi.

Hearing details:

2015

Telephone Hearing:

November 2.

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