Linda Quinton v Coles Supermarkets Australia Pty Ltd

[2014] FWC 4356

[2014] FWC 4356

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Quinton
v
Coles Supermarkets Australia Pty Ltd
(U2014/7205)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 JULY 2014

Application for relief from unfair dismissal; application made outside of the time prescribed in s. 394(2); consideration whether to allow a further period within which application should be made; application lodged 10 days out of time; no acceptable explanation for delay; not satisfied that there are exceptional circumstances; further period to make application not allowed; application dismissed

[1] This is an edited version of a decision delivered in transcript on 27 June 2014. Linda Quinton commenced employment as a learning program manager with Coles Supermarkets Australia Pty Ltd (Coles) on or about 16 April 2012. On 3 April 2014, Ms Quinton was advised that her employment was to be terminated on redundancy grounds with effect from 11 April 2014. On 12 May 2014 Ms Quinton lodged an application with the Commission made under s. 394 of the Fair Work Act 2009 (Act) seeking an unfair dismissal remedy. Ms Quinton’s application, which should have been lodged by no later than 2 May 2014, was made outside of the time prescribed for such applications and Ms Quinton now seeks to be allowed a further period within which to make her application.

[2] Coles says that it dismissed Ms Quinton on redundancy grounds following a review of its learning and development function, which resulted in Coles ultimately making a determination that it no longer required the role of learning program manager within the group that Ms Quinton worked. Coles says that it identified a suitable alternative position into which Ms Quinton could have been redeployed. Ms Quinton however, declined to accept this position. Coles says that on termination of Ms Quinton’s employment it paid her severance pay of three months’ wages, which was inclusive of notice. I take it from Coles position that it says that the termination of Ms Quinton’s employment was a case of genuine redundancy within the meaning of the Act and therefore ultimately Ms Quinton is not a person who is protected from unfair dismissal.

[3] Ms Quinton disputes the reasons for her dismissal and she says that her dismissal was harsh, unjust or unreasonable. She says that this was not a case of genuine redundancy and that appropriate steps and indeed no steps were taken to consult with her or to redeploy her to another position. Ms Quinton says that since the termination of her employment, she has learned of other positions that were available or are available within Coles and in relation to two of these positions, significant parts of the position description which forms part of the role, are substantially the same as the duties which she performed whilst in employment with Coles. Moreover she says that the most recently advertised position, of which she became aware on 12 May 2014, the position duties are the same as those of the position which she occupied immediately before the termination of her employment.

[4] Before turning to the substance of the application to allow a further period, I will briefly consider the principles that are to be applied in determining whether to exercise a discretion to extend time in which an unfair dismissal remedy application may be made. As I have indicated earlier Ms Quinton’s dismissal took effect on 11 April 2014. Her application to the Commission for a remedy should have been made within 21 days of the dismissal taking effect, namely by 2 May 2014. The application was made on 12 May 2014 and was therefore 10 days outside the prescribed time.

[5] As is evident from the statute the Commission may allow a further period within which an application may be made, but the discretion to allow a further period will only be considered if the Commission is first satisfied that there are exceptional circumstances taking into account the matters set out in s. 394(3). They are:

● the reason for the delay;

● whether Ms Quinton became aware of the dismissal after it took effect;

● any action taken by Ms Quinton to dispute her dismissal;

● prejudice to the employer Coles including prejudice that is caused by the delay;

● the merits of the application; and fairness as between Ms Quinton and other persons in a similar position.

[6] It is clear from the structure of s. 394(3) of the Act that each of the matters must be taken into account when assessing whether there are exceptional circumstances. Exceptional circumstances, as the authorities tell us, are circumstances that are out of the ordinary course unusual, special or uncommon, but the circumstances do not have to be unique or unprecedented or even very rare however before considering whether to exercise the discretion to extend at all, there must first be established to the satisfaction of the Commission, taking into account the matters in s. 394(3), that there are exceptional circumstances.

[7] Firstly, as to the reason for the delay. There must be an acceptable explanation for the delay. Ms Quinton needs to provide credible reasons or a credible reason explaining the whole of the period of the delay. Ms Quinton, through her representative, has accepted that there is no acceptable explanation for the delay. Based on the written material filed in the Commission it seems to me that there is a suggestion that the application was ultimately motivated by Ms Quinton discovering, after the termination of her employment, that positions similar to or substantially the same as her pre termination of employment position had been advertised by Coles and that this had caused her to reconsider the genuineness of the redundancy. To the extent that that is suggested by the applicant, I do not find that explanation to be an acceptable explanation. According to the materials filed by Ms Quinton she first saw a position or positions advertised in LinkedIn on 28 April 2014 and she subsequently saw a further advertisement on LinkenIn on 12 May 2014.

[8] The application also indicates that she was not offered any alternative role as a consequence of her redundancy. This latter point is indicative of some dissatisfaction with, or at least a question arising as to, the genuineness of the redundancy and the fairness of the termination. It is apparent from the face of the application that has been made that that is something that would have been known to the applicant at the time she was dismissed. She took no step to agitate the dismissal with her employer. The first position that was advertised by Coles was seen by Ms Quinton on 28 April 2014. From that date the applicant still had four days within which she could have made a valid application. She took no step to lodge her application, nor did she take any step to question that position with Coles or to dispute with Coles the genuineness of her redundancy that ultimately resulted in the termination of her employment. Taken in its totality Mr Grapsas appearing for the applicant I think has made the appropriate concession, that there is no acceptable explanation for the delay, and I so find. The absence of an acceptable explanation for the delay is clearly a matter that weighs against Ms Quinton in her application to extend time.

[9] As to the awareness of the date of dismissal it is clear from the material that Ms Quinton became aware, at least, on the day that her dismissal took effect, namely 11 April 2014 that she had been dismissed. On the material it seems that she was aware that her position was redundant on at least 3 April 2014 and on that day she was verbally advised that her dismissal would take effect on 11 April 2014. Consequently Ms Quinton had the full 21 days within which to lodge the application. In the circumstances that fact also weighs against Ms Quinton. As to any action taken to dispute the dismissal it is clear on the materials that apart from making this application, Ms Quinton took no step to dispute her dismissal with her former employer and this is a factor that also weighs against Ms Quinton.

[10] In the written materials filed by Coles, Coles does not suggest or contend that it would suffer any particular prejudice as a consequence of the delay. Again the authorities will tell us that the absence of prejudice does not in and of itself give rise to exceptional circumstances. In the present case I think that consideration is neutral.

[11] As to the merits of the application Coles suggest that the substantive application lacks merits essentially because it maintains that there was a genuine redundancy and there is an absence of jurisdiction. There was no evidentiary material going to merit which has been canvassed or which has been filed in the Commission, but it is clear that if the matter were to proceed that Ms Quinton would contest the allegation that there was a genuine redundancy.

[12] Ms Quinton’s central contention is that this was not a case of genuine redundancy essentially because there was an absence of consultation and because the redeployment within the definition cannot be made out by Coles. Though I have some doubts as to whether Ms Quinton can make good that argument, based on the limited material before me I am not prepared to conclude that the argument would definitely fail, but, as I noted earlier in an exchange with Mr Grapsas, even if Ms Quinton succeeds in that argument it does not follow that her dismissal was nevertheless harsh, unjust or unreasonable as that question is to be assessed by reference to the matters that are set out in s. 387 of the Act. It seems to me, based on the limited material, that the case that would be advanced by Ms Quinton, if she were permitted to proceed, has at least some, albeit limited, prospect of success and is not one that has no reasonable prospect of success. In the circumstances I am prepared to weigh the question of merit slightly in favour of Ms Quinton.

[13] As to fairness between Ms Quinton and persons in a like position, neither Ms Quinton nor Coles advanced any argument which addressed this consideration. Cases of this kind will generally turn on their own facts and in the circumstances I regard this consideration as neutral.

[14] Statutory time limitations that are applicable to the exercise of a person’s right to make an application, including an application of the kind that Ms Quinton seeks to make, are in place as an expression of Parliament’s intention that the rights that people have should be exercised promptly, within a particular period of time so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty and this is so that questions about actions that have been taken by one party are agitated promptly otherwise the right of action is lost. Applications seeking an unfair dismissal remedy must be made within 21 days after the dismissal took effect and it will only be in exceptional circumstances that the Commission will even consider allowing a further period.

[15] Weighing all the matters that I have discussed and that are set out in s. 394(3) there is little in the material before me that would establish that there are exceptional circumstances that would warrant the consideration of the exercise of my discretion to allow a further period within which Ms Quinton should be allowed to lodge her unfair dismissal remedy application. True it is that her application is not without merit, however, weighing against this there is a clear absence of an acceptable explanation for the delay, the fact that Ms Quinton had the full 21 days within which to lodge her application, that she knew before the expiry of the 21 day time limit that some position within Coles had been advertised which was similar to her pre-termination position and that, she took no step to contest her dismissal with her employer within that period or afterwards. The absence of prejudice to Coles does not shift the balance the other way.

[16] In all of the circumstances I am not satisfied that there are exceptional circumstances and so I will not allow a further period within which this application can be made. Ms Quinton’s application, which was purported to be made under s. 394 of the Act, is dismissed. An order has been issued separately in PR552536.

DEPUTY PRESIDENT

Appearances:

S. Grapsas for the Applicant

L. Anderson for the Respondent

Hearing details:

2014.

Melbourne.

27 June.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552610>