Lisa Thomson v Taybrow Pty Ltd ATF Diversified Office Services Unit Trust (service trust for) T/A O'Donnell Hennessy & Co

[2016] FWC 1992

[2016] FWC 1992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lisa Thomson
v
Taybrow Pty Ltd ATF Diversified Office Services Unit Trust (service trust for) T/A O’Donnell Hennessy & Co
(C2015/5377)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 31 MARCH 2016

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 Lisa Thomson (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 September 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Taybrow Pty Ltd ATF Diversified Office Services Unit Trust (service trust for) T/A O’Donnell Hennessy & Co (ODH – the Respondent) on 26 August 2015 in contravention of the general protections provisions in the Act.

[2] As the application had been lodged twelve days outside the statutory timeframe for lodgement, the Commission issued Directions on 14 October 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.

[3] The extension of time issue was the subject of a telephone hearing on 26 November 2015. At the telephone hearing, Ms Thomson appeared on her own behalf, while Ms Jane Milinkovic, a partner of ODH, appeared for the Respondent.

[4] For the reasons set out below I have concluded that I am not satisfied that 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

[5] ODH is an accounting practice based in Wollongong with an office in Nowra. In June 2000 Ms Thomson commenced employment with ODH at its Nowra office in a full-time administrative role.

[6] Ms Thomson commenced a period of parental leave in January 2015. On 31 July 2015 she emailed Ms Milinkovic and Mr Spencer Green, one of the other partners at ODH, advising that she proposed to return to work on 12 October 2015.

[7] Ms Milinkovic responded on 5 August 2015 advising that she would meet with ODH’s other partners to give consideration to Ms Thomson’s request. On 14 August 2015, Ms Milinkovic emailed Ms Thomson advising that the administrative functions of the firm had been centralised in Wollongong and that as a result it no longer had an administrative assistant in its Nowra office, adding that ODH was assessing whether it had any comparable alternate positions available for her in Wollongong.

[8] Ms Milinkovic wrote to Ms Thomson again on 26 August 2015 advising that “after considerable discussion and consultation we have determined that there is not alternative position available for you” 1 and further advised Ms Thomson that her redundancy and final pay would be processed on 2 September 2015.

[9] On 16 September 2015 shortly after 7.00pm, the last day of the statutory timeframe for lodgement, the Commission received documents from Ms Thomson relating to her dismissal through the Commission’s electronic filing system, as well as payment of the lodgement fee.

[10] In the comments section of her lodgement, Ms Thomson stated:

“having difficulty adding the application form 8, please contact me if there is anything wrong with the attachments.”

[11] The automated response sent by the Commission to Ms Thomson at 7.27pm on 16 September 2015 following the successful lodgement of her documents states, among other things, that:

“… this is NOT an acknowledgement that your document is taken to have been filed with the Fair Work Commission. You will subsequently be advised whether your document is taken to have been filed.

…

The documents will be manually checked against the Rules of the Fair Work Commission as soon as possible and you will be advised by email of any anomaly.” (Underlining added)

[12] On 17 September 2015 at 8.54am, a staff member of the Commission emailed Ms Thomson, noting the following:

“The Form F8 was not attached, can you send it back as an attachment to a reply to this email? We did receive a notice of redundancy, a separation certificate and 5 pages of emails. Is there anty [sic] thing else that needed to be attached?” 2

[13] Ms Thomson did not reply to this email.

[14] On 23 September 2015, a Commission staff member telephoned Ms Thomson to advise that the Commission had not received her Form F8 – General Protections Application Involving a Dismissal. Ms Thomson advised that she was in remote NSW and was unable to forward her application until she returned home as she did not have the relevant documents with her or access to the internet.

[15] As previously noted, Ms Thomson’s general protections application was received by the Commission on 28 September 2015, which is twelve days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In her application, Ms Thomson contended that ODH had contravened ss.340 and 351 of the Act which deal with protection concerning the exercise or otherwise of a workplace right and discrimination based on her sex.

The Relevant Legislation

[16] 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

[17] 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

[18] Ms Thomson submitted that the reason for the delay in filing her application was that she “had difficulties with the Fair Works [sic] online lodgement service that night as it took many tries to attach any of the documents & when it looked like they all had finally been included, I then lodged it. Unbeknownst to myself, it obviously hadn’t been included.” 3

[19] Ms Thomson further submitted that when she received the Commission’s telephone call on 23 September 2015, she was in a remote part of NSW with no access to the relevant documents or the internet. Ms Thomson contended that she was therefore only able to submit her application when she returned home on 28 September 2015.

[20] ODH submitted that notwithstanding Ms Thomson’s difficulties in lodging her application, given that she had obtained legal advice prior to 16 September 2015 she should have been in a position to ensure the claim was properly lodged. ODH further submitted that the reasons for the delay relied upon by Ms Thomson were not out of the ordinary, unusual, special or uncommon.

[21] An analysis of the material before the Commission indicates that:

• Ms Thomson electronically filed the attachments to her application and paid the application fee on 16 September 2015;



• in doing so, Ms Thomson alluded to problems in adding the Form F8 when electronically lodging her documents and asked to be contacted if there was anything wrong;



• the automated electronic filing receipt sent to Ms Thomson at 7.27pm on 16 September 2015 stated, inter alia, that the documents would be checked manually and that she would advised by email of any anomaly;



• Ms Thomson was advised by email at 8.54am on 17 September 2015 that her Form F8 was not attached to documents electronically lodged the previous evening and asked to email the document to the Commission; and



• Ms Thomson did not respond to that email.

[22] In circumstances where Ms Thomson asked to be contacted if there was anything wrong with the documents she had electronically lodged and was advised by the Commission in its automated electronic filing receipt that she would be contacted by email regarding any anomaly, it beggars belief that she did not check her email the following day to ensure that her lodgement had been completed successfully.

[23] The above analysis does not point to the existence of exceptional circumstances.

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

[24] Ms Thomson did not address this factor in her submissions, though at the telephone hearing she pointed to the email which she sent to Ms Milinkovic on 31 August 2015 and which was attached to her application. The email reads as follows:

“Jane, Spencer,

I am deeply saddened & disappointed to hear this news, let alone via email, I would have thought I deserved the courtesy to be told face to face after 15 years of this, for me, life changing decision? I am wondering why I wasn’t informed of this change to the office as I understand they happened quite a while ago, & not given more notice & not when I am requesting to return to work? In any event, I now ask that you please provide to me a reference to help with my future employment … I will also be in this week to return the office keys to Trish.”

[25] ODH submitted that Ms Thomson had taken no action to dispute her dismissal which would give reason for the delay.

[26] While the above email from Ms Thomson to Ms Milinkovic does ask a number of questions it does not explicitly dispute her dismissal. Beyond that, Ms Thomson took no steps to dispute her dismissal other than lodging her general protections application. This does not point to the existence of exceptional circumstances.

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

[27] At the telephone hearing Ms Thomson contended that she failed to see how the delay affected ODH.

[28] ODH submitted that as it was not given an extension to file its Form F8A – Response to general protections application within seven days of service, the same strictness should apply to Ms Thomson. ODH’s submission does not, however, directly address how it would be prejudiced if an extension of time was granted.

[29] I note that the mere absence of prejudice to the employer is not a sufficient basis to grant an extension of time 4. Against that background, I consider this factor to be a neutral consideration.

(d) The merits of the application

[30] In her application Ms Thomson when detailing the alleged general protections contraventions responded that:

“I went onto parental leave & according to other staff members, the changes made to the office, namely my position, came into affect shortly afterwards, I should have been informed of this as they happened, as, if I was being made redundant, as could have been seeking alternative employment, not to then be informed of this some 7 months later when I requested to return to work.

I believe I would still have my job had I not left to have my baby. ODH took this as an opportunity to let me go as it became easier after the changes came into affect & they could see that they worked for them.

The redundancy is not genuine, my duties are still being undertaken by another administration employee, just located in the Wollongong office, and they are still liaising with Nowra staff in regards to all said duties, as I would have on a day to day basis.” 5

[31] At the telephone hearing, Ms Thomson contended that she had a strong case and reiterated her belief that she would still have her job had she not taken parental leave.

[32] ODH in its Form F8A response responded to each of the concerns set out in Ms Thomson’s application. With regard to Ms Thomson’s contention that her dismissal was not a genuine redundancy, ODH provided a detailed outline of the changes it had implemented to its Nowra operations. These included implementation of VOIP telecommunications meaning that all telephone lines were centralised in the Wollongong office, with calls transferred to Nowra as necessary, and the redirection of client correspondence from the Australian Taxation Office and the Australian Securities and Investment Commission to its Wollongong office. ODH also highlighted that 60 per cent of Ms Thomson’s administrative duties had previously been transferred to its Wollongong office in 2012 after Ms Thomson returned from an earlier period of parental leave working two days per week.

[33] ODH in its written submission contended that it considered Ms Thomson’s application was without merit as her dismissal was a genuine redundancy, relying on its written submissions at the telephone hearing.

[34] While a genuine redundancy as defined by s.389 of the Act would be a complete answer to an unfair dismissal application, Ms Thomson has lodged a general protections application involving dismissal and the relevant consideration is whether she was dismissed for a proscribed reason. Accordingly, the genuineness or otherwise of Ms Thomson’s redundancy is not a relevant consideration in determining whether or not there has been a contravention of the general protections provisions of the Act. As noted above, Ms Thomson contended that she would still have her job had she not taken parental leave. However, Ms Thomson provided no material to support that contention. Further, I note that s.84(b) of the Act which deals with the return to work guarantee for an employee ending their unpaid parental leave contemplates that an employee’s pre-parental leave position may no longer exist when the employee’s parental leave ends.

[35] Against that background, the merits of Ms Thomson’s application do not appear particularly compelling. This factor weighs against the existence of exceptional circumstances.

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

[36] Ms Thomson did not address directly this factor in her submissions, though she did submit at the telephone hearing that she was aware of another employee, albeit in a different position to her former role, who returned to work from parental leave under a flexible working arrangement.

[37] ODH submitted, among other things, that the Commission provides guidelines on making such applications and that the Commission’s General Protections Team would have been available to assist Ms Thomson if she was unsure of what to do.

[38] As neither party directly addressed this factor in their submissions, I consider it to be a neutral consideration.

Conclusion

[39] 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 6 (Nulty) in 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.”

[40] 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).

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

Appearances:

L. Thomson on her own behalf.

J. Milinkovic for Taybrow Pty Ltd ATF Diversified Office Services Unit Trust (service trust for) T/A O’Donnell Hennessy & Co.

Hearing details:

2015.

Canberra, Wollongong and Nowra (telephone hearing):

November 26.

 1   Attachment to Form F8 – General Protections Application Involving Dismissal

 2   Email in file note of 28 September 2015

 3   Applicant’s submissions in email dated 22 October 2015

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Form F8 – General Protections Application Involving Dismissal at Item 3.3

 6   [2011] FWAFB 975

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