Leesa-Maree Tamblyn v Specialty Fashion Group Limited T/A CityChic

[2016] FWC 1485

[2016] FWC 1485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leesa-Maree Tamblyn
v
Specialty Fashion Group Limited T/A CityChic
(U2016/3718)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal.

[1] Ms Lessa-Maree Tamblyn alleged the termination of her employment by Specialty Fashion Group Limited on 21 December 2015 was unfair.

[2] Her unfair dismissal application lodged on 12 January 2016 was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission to Mr Wes O’Donnell to appear as a paid agent for Specialty Fashion Group. Mr O’Donnell submitted that as the matter involved jurisdictional issues it involved some complexity and that the human resources staff had no experience with the jurisdiction and it would be unfair not to permit Specialty Fashion Group to be represented because it was unable to represent itself effectively.

[4] I do not consider that the extension of time hearing involves any particular complexity but I accepted the submission that the alternative representatives would not be able to represent Specialty Fashion Group effectively.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[7] Ms Tamblyn said that she thought she had 21 business days to lodge her application rather than 21 days. Ms Tamblyn did not notice that the covering page on the form advises employees that they have 21 calendar days to lodge the application. She further did not notice that question 1.4 asks employees if they are making the application within 21 calendar days of the dismissal. That Ms Tamblyn was unaware of the requirement to lodge within 21 calendar days is not unusual.

[8] Ms Tamblyn submitted that she commenced filling in the form on 8 January 2016 and as she suffered anxiety she found completing the form difficult and she needed someone to help her with the application. Ms Tamblyn should have filed her application form on 11 January 2016 but she filed it 29 minutes late.

[9] She rejected the submission that she had during the same time been able to apply for employment. She said that thinking about her employment caused her anxiety. Ms Tamblyn did not provide any medical evidence to support her claim that her anxiety prevented her from completing the form and she said she had not sought medical assistance during this period.

[10] Ms Tamblyn was 29 minutes late in lodging her application form. While I accept that her anxiety may have been the reason she took four days to complete the application I am not satisfied, without medical evidence, that it provides a reasonable explanation for the delay. Ms Tamblyn’s misunderstanding about the number of days she had to complete the form is not unusual.

[11] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[12] Ms Tamblyn was aware of the dismissal when it took effect. She had the full 21 days to lodge her application.

[13] This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[14] Ms Tamblyn took no action to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

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

[15] There was no evidence of any prejudice to the employer. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[16] Ms Tamblyn took unapproved leave. She said she was forced to do so because her manager unreasonably refused her request for leave. She said she applied for leave in November 2014 but this application was not processed and she applied again in February 2015. This leave application was rejected. She then applied a third time and was told that she could not have leave because the time she was applying for overlapped a period when her manager would be on leave. Ms Tamblyn then took the leave without approval.

[17] Specialty Fashion Group submitted that Ms Tamblyn’s February 2016 leave application was rejected because she had applied for leave in a period when annual leave is not able to be taken. The enterprise agreement provides that annual leave for team members cannot be taken in December unless the team has been be granted special exemption. Specialty Fashion Group cannot unreasonably refuse any annual leave application.

[18] Further, it submitted some of the period of leave sought overlapped when the store manager had approved leave. The March 2016 application was refused for the same reason.

[19] The leave application form states “please do not assume your leave will automatically be approved. The taking of annual leave will be by mutual agreement. Arrangements for leave should therefore not be made until you have received and approved and signed Notification of Approval of Leave [provided].”

[20] On 9 September 2015, Ms Tamblyn was invited to a meeting to discuss her annual leave applications. During this discussion Ms Tamblyn was advised that if she was absent from work during this period it would be considered an unauthorised absence resulting in disciplinary proceedings which may result in the termination of her employment without notice.

[21] On 2 November 2015, Ms Tamlyn was again warned that she risked the termination of her employment if she took unauthorised leave.

[22] Despite this, Ms Tamblyn took leave from 5 November 2015 and returned on 8 December 2015. A meeting was held on 17 December 2015 and Ms Tamblyn was told that she could have a support person present. Ms Tamblyn’s employment was terminated at that meeting.

[23] Ms Tamblyn does not dispute any of these matters she simply alleges that her leave was refused to force her into a situation where she could be dismissed due to breach of contract.

[24] It is clear that Ms Tamblyn made arrangements for her annual leave prior to it being formally approved. She decided to take that leave despite having been warned that her employment would be at risk.

[25] While in an extension of time hearing is not an occasion for the final determination of the merits of Ms Tamblyn’s claim that dismissing her for taking unauthorised leave was unfair, if the evidence remains as it is it will be difficult for Ms Tamblyn to make out this claim.

[26] Accordingly, the merits of Ms Tamblyn’s claim do not weigh in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[27] No submissions were made in relation to this criteria are considered to be neutral.

Conclusion

[28] I am not satisfied there are exceptional circumstances in this matter. None of the criteria support such a finding. Ms Tamblyn’s application for an extension of time is therefore dismissed and so is her unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

L. Tamblyn on her own behalf.

W. O’Donnell for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

4 March.

 1   [2011] FWAFB 975

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