Kaylie Brooke Harrison v Kollaras Group T/A City Beach Function Centre

[2010] FWA 8194

[2010] FWA 8194

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Kaylie Brooke Harrison
v
Kollaras Group T/A City Beach Function Centre
(U2010/9671)

COMMISSIONER ROBERTS SYDNEY, 25 OCTOBER 2010

Termination of employment - extension of time.

[1] This decision concerns an application filed by Ms Harrison on 11 June 2010 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of her employment by City Beach Centre Pty Ltd T/A City Beach Function Centre (the Company). Ms Harrison states in her application that the termination of employment took effect on 10 October 2008. It was later agreed by the parties that the termination took effect on 14 October 2008, the day on which Ms Harrison was advised verbally of the termination. Accordingly, her application was lodged some 584 days outside the 21 day time limit prescribed by the Act and therefore requires me to consider granting an extension of time. The Company opposed the extension of time and also raised jurisdictional objections on the grounds that the Company employed 100 employees or fewer at the time of the termination of Ms Harrison’s employment (s.643(10)) and that the termination was for genuine operational reasons (s.649).

[2] The Company did not object to conciliation prior to the determination of the extension of time and jurisdictional objections. Conciliation took place before me in Sydney on 6 August 2010 but was unsuccessful. The parties agreed that the matter should proceed firstly to the determination of whether an extension of time should be granted and that it be determined on the papers.

[3] Section 647 of the Act provides that the Commission is not required to hold a hearing in determining an extension of time application where such application includes a ground pursuant to s.643(1)(a) of the Act. Sections 648(2) and (4) prescribe that the parties must be provided with an adequate opportunity to provide further information. Accordingly, I issued directions on 6 August 2010 for the parties to provide information and submissions. Both parties provided written material and that process ended on or about 13 September 2010.

[4] I will now proceed to determine the extension of time application on the information provided and applying the relevant legislative provisions.

Legislative Framework

[5] Subsections 643(14) and (15) of the Act provide:

“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.

(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”

[6] The following Note appears under subsection 643(15):

“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

[7] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 1

"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

[8] In Cruz and Australia Post Corporation 2(Cruz), a Full Bench of this Commission said of Brodie-Hanns:

“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 3

Background

[9] Ms Harrison commenced employment with the Company from November 2004 on a casual basis. She was offered a full time position on or about 29 June 2007. On 14 October 2008, the first day Ms Harrison returned to work from an extended period of unpaid leave since about 15 July 2008, she was advised by Mr Davie (the Company’s General Manager) that her position was redundant. She was handed by Mr Davie a letter about the redundancy dated 10 October 2008.

Explanation of the delay

[10] Ms Harrison submits that she was unaware until 8 June 2010 that her previous position had been filled by another person, allegedly from early January 2009. She then filed her application for relief on 11 June 2010. On the latter date she became aware of the 21 day time limit for filing under the Act. She said: “An application was not submitted with the 21 day limit as I believed up until June 8th 2010 that the redundancy was true, just and genuine. I was not aware prior to June the 8th 2010 that the position of Operations Manager continued to exist within the respondent organisation. The short time from when I had become first aware (June 8th 2010) and the time the first application to Fair Work Australia was submitted (June 11th 2010) clearly shows that if I had been aware that the redundancy was unjust and in fact not genuine I would have submitted my claim in more than sufficient time. I had entrusted in the respondent and in the system that this was a fair and just redundancy.” In support of her claim, Ms Harrison has supplied me with copies of emails between her and current and former staff of the Respondent together with extracts from an employee’s facebook page.

Action taken by the Applicant

[11] It is apparent on the face of the material available to me that the Applicant took no action to contest the termination of her employment until she filed her substantive application for relief and I so find.

Prejudice to the Respondent

[12] The Respondent did not submit that it would suffer prejudice if an extension of time was granted. However, the absence of a claim of prejudice by the Respondent is not of itself a positive reason to extend time. In the circumstances of this particular case, the time involved is such that the Company must suffer significant prejudice in defending Ms Harrison’s application. I therefore find that prejudice to the Company would occur if I were to grant an extension of time.

Merits of the substantive application

[13] An application for an extension of time does not require a detailed assessment of the merits of the substantive application, but those merits may be taken into account in determining whether to grant an extension of time. From the submissions of each side, I have formed the view that Ms Harrison’s claim is unlikely to succeed on its merit and this has influenced my decision making but has not been determinative. There is nothing in Ms Harrison’s material that would necessarily negate the Company’s claim that the termination of her employment was for operational reasons. The fact that her former position was filled by another employee some three months after Ms Harrison was terminated does not, in itself, disprove the Company’s claim. On the material available to me, it appears that the Company reduced overall staff numbers and, if it did so, it was entitled to choose to terminate Ms Harrison’s employment.

Fairness between the Applicant and other persons in a like position

[14] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion and Finding

[15] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”

[16] The onus is on Ms Harrison to convince me that I should extend time. I am satisfied, on balance, that she has not met that onus.

[17] The circumstances of the delay in filing by Ms Harrison possess no element which would persuade me to extend time for such a lengthy period. The materials Ms Harrison has adduced concerning the actions by the Company do not raise sufficient issues of importance such that I would be persuaded to extend time.

[18] The delay in filing the application is so significant that, all in all, I find that this is not a case where I should grant an extension of time.

[19] The application to extend time is refused and therefore the substantive application must also be dismissed. Given that an extension of time has been refused, it is not necessary to examine the Company’s two jurisdictional motions.

[20] An order reflecting this decision is in PR503020.

COMMISSIONER

 1 (1995) 67 IR 298 at p299.

 2   [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)

 3   Ibid at paragraph 23.

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