Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia

[2014] FWC 8384

[2014] FWC 8384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucy Aristodemou
v
Sunbeam Corporation Limited T/A Sunbeam Australia
(U2014/9276)

COMMISSIONER WILSON MELBOURNE, 25 NOVEMBER 2014

Application for relief from unfair dismissal - consideration of the granting of an extension of time for the making of an application for an unfair dismissal remedy - whether exceptional reasons exist.

[1] This matter concerns an application made by Lucy Aristodemou alleging unfair dismissal against her former employer, Sunbeam Corporation Ltd, trading as Sunbeam Australia. Ms Aristodemou’s application to the Fair Work Commission is date stamped 16 September 2014, and the date her dismissal took effect was 5 May 2014. As such, the application is almost four months out of time.

[2] The making of an application for an unfair dismissal remedy by Ms Aristodemou arises because of information she learned in September 2014 that causes her to question whether her dismissal was a genuine redundancy. Sunbeam Australia argues that the circumstances of the matter are such that an extension of time should not be granted.

[3] Certain matters are either agreed between the parties or there is consistency in the evidence on these matters. Ms Aristodemou first started employment with Sunbeam Australia in August 1998, meaning that she had worked for the company for over 15 years. At the time of her dismissal she was 54 years of age and was employed in the dual role of National Merchandise Supervisor and Account Manager Victoria, which she had held since August 2012. The former role called on Ms Aristodemou to be responsible for national administration of the Sunbeam Australia merchandising team of people, which Ms Aristodemou said could have been up to 40 people 1; and the latter Account Manager role required her to look after the sales in a particular region, being the Gippsland area. In this regard, she was one of three Victorian Account Managers.

[4] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Ms Aristodemou is a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to her circumstances. However, there is a dispute about whether her dismissal was a case of genuine redundancy and this decision goes to the question of whether her application for unfair dismissal remedy was made within the period required in s.394(2) of the Act and whether an extension of time for filing should be granted to her.

[5] Ms Aristodemou’s evidence is that the percentage split between the two parts of her job was about 50% on each 2, whereas her position description referred to a time allocation of 65% to the National Merchandising Supervisor role. While she denied the possibility that the dominant part of the work, perhaps as much as 80% to 95%, was the National Merchandise Coordinator role, she gave evidence that performance of her account manager duties might take two days per week.3 By inference this gives rise to the possibility that time allocation for the National Merchandising Supervisor role could perhaps be 60% of her job. She also gave evidence that while the National Merchandise Coordinator role had accounted for the vast majority of her work, that had not been the case in the last four months of employment.

[6] The circumstances of Ms Aristodemou’s termination include that on 5 May 2014, she was informed she was to be made redundant, and her dismissal took effect on the same day. When she was dismissed, she was paid a redundancy payment generally in accord with the requirements of the National Employment Standards, namely a payment in lieu of notice of five weeks, and 12 weeks’ redundancy pay.

[7] Further, the evidence indicates that in late April 2014, Ms Aristodemou was interviewed by Sunbeam for a higher classified position, namely the position of Regional Manager Victoria. The interview was conducted by Ms Jane Shaw (National Field Sales Manager) and Ms Diane Perdomo (a HR representative). The evidence about how Ms Aristodemou came to be interviewed for the position is that she applied for it, and that she came to apply for the position owing to what I understand to be some uncertainty on her part about the ongoing nature of the National Merchandising Coordinator part of her role. The evidence about this is unclear, however Ms Aristodemou said in evidence that when Ms Shaw had started with Sunbeam in April she knew “Jane Shaw had come in and she took over the role” and that it was put to her that that the National Merchandising Coordinator part of her role was likely to become redundant in the future. 4

[8] The consequence of the interview in April 2014 was that she was informed by Ms Shaw that she had not been successful in obtaining the Regional Manager Victoria position, but she would be offered a full time Account Manager’s role. She expected this would be a full-time version of the account management role she was performing in relation to the Gippsland region.

[9] On 5 May 2014, Ms Aristodemou attended a meeting with two managers from Sunbeam Australia, Ms Shaw and Ms Diane Perdomo (HR representative). Ms Aristodemou’s evidence is that Ms Perdomo informed her that Sunbeam had no money for the position that Ms Shaw had promised and that Ms Aristodemou was being made redundant with immediate effect. At the time, Ms Aristodemou believed and had no reason to disbelieve what Ms Perdomo and Ms Shaw told her, that she was to be dismissed for reason of redundancy. Ms Aristodemou’s evidence is that she was told she would be paid the benefits referred to above as payment in lieu of notice and redundancy pay, which was confirmed in writing to her. The meeting was at about 2.30pm and took approximately half an hour, soon after which Ms Aristodemou left the premises as an employee for the last time. The payment that was promised to her was paid by shortly after employment ended.

[10] On 14 September Ms Aristodemou spoke with an “industry colleague”, still employed at the time by Sunbeam, who told her at a social gathering that a person whom she named to the Commission had been employed to fill the void left by her. Ms Aristodemou understood this to mean that the person was doing the same job from which she was dismissed. This caused Ms Aristodemou to believe that “my redundancy was concocted after the new Regional Manager Jeanette Tucker advised Jane Shaw she did not want me in the Victorian Sales team”, and that “[m]y replacement was approached some time before her commencement and she has a very similar skill set to myself having worked in the same role at Sunbeams competitor Breville.” 5

[11] Following the conversation with her industry colleague, Ms Aristodemou did not contact any manager at Sunbeam to question what had happened, and instead, within two days of the conversation, filed an application for unfair dismissal remedy.

[12] No evidence was given in these proceedings for or on behalf of Sunbeam Australia, although I have had the benefit of receiving and considering an Outline of Submissions on behalf of the company, together with oral submissions from Ms Williams from the Australian Industry Group. The consequence of this is that I have no counter in the evidence to that put forward by Ms Aristodemou, and particularly to the effect that she was told things in September 2014 that caused her to question whether her dismissal was genuine.

EXTENSION OF TIME

[13] As already referred to, Ms Aristodemou’s employment came to an end on 5 May 2014, and she made her application for an unfair dismissal remedy to the Fair Work Commission on 16 September 2014. Unless an extension of time is granted by the Commission, applications for unfair dismissal must be made within 21 days after the dismissal took effect.

[14] An application by Ms Aristodemou for unfair dismissal should have been made no later than 26 May 2014, which is within 21 days after the termination took effect. The application is therefore 113 days out of time.

[15] The capacity of the Fair Work Commission to extend the time for making an unfair dismissal application is set out within s394 of the Act. The Act provides a discretion for extension, where I am satisfied there are exceptional reasons for doing so, taking into account six criteria.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[16] The Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time. In considering what may be “exceptional circumstances” the Commission looks for circumstances that are out of the ordinary course; unusual; special, or uncommon. The circumstances need not be unique, unprecedented, or very rare.

[17] In considering whether an extension of time should be granted to Ms Aristodemou for the filing of her application, I must have regard to the statutory criteria set out in s.394 of the Act. I am required to consider all of the criteria, which I now do.

1. The reason for the delay

[18] After considering the evidence given by the Applicant in this matter, and the written submissions she provided, together with the submissions of the Respondent, I am satisfied that the reason for the delay by Ms Aristodemou in making an application for an unfair dismissal remedy is that she had no reason to question the genuineness of her dismissal until 14 September 2014, which, on her evidence is two days before she lodged her application on 16 September. I find that this reason is her explanation for the whole period of the delay between the last date the application should have been filed in order for it to be within time, 26 May 2014, and the date that it was filed, being 16 September 2014.

[19] In context, the reason for Ms Aristodemou’s delay in making her application for an unfair dismissal remedy may be a factor that resolved in her favour in the event the substantive merits of her application are also in her favour.

2. Whether the person first became aware of the dismissal after it had taken effect

[20] The evidence demonstrates clearly that Ms Aristodemou was aware she had been dismissed on 5 May 2014, which is the date that the dismissal took effect. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[21] Ms Aristodemou took no action to dispute her dismissal until the making of her application to the Fair Work Commission in September 2014. Her evidence is that until she spoke with her industry colleague, there was no need to question the genuineness of her dismissal being a redundancy. There is also no evidence that she sought advice, proximate to her dismissal, about its merit or her rights. While the absence of such evidence is not a factor to be counted against Ms Aristodemou, the presence of such evidence may assist her in the event she argued that she was always sensitive to the genuineness of her redundancy and that she took no action to challenge it, relying on some external or professional advice.

[22] Sunbeam is critical in its submissions of the fact that Ms Aristodemou took no action to dispute her dismissal until the making of her application to the Fair Work Commission in September 2014, with the company submitting;

“The Applicant made no attempts to contact the Respondent since her dismissal took effect. The only contact received from the Respondent was by way of notification of the Applicant’s current Application some four months post her employment.” 6

[23] In the circumstances of this matter, I take the view that my consideration of this matter is a neutral one. Notwithstanding Sunbeam’s criticism of her, I do not find that this is justified in the overall circumstances.

4. Prejudice to the employer (including prejudice caused by the delay)

[24] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Given the length of time between the date of Ms Aristodemou’s dismissal and the date of her application, and the time it would take to hear and determine the merits of her application, this is a matter in which the potential prejudice to Sunbeam by allowing a further period of time for the making of an unfair dismissal application is likely to be greater than would ordinarily be expected. In Ms Aristodemou’s favour is that the key decision makers in her dismissal continue to be employed at Sunbeam and there is nothing to suggest that their memories on critical issues have now faded, or that key documents are no longer available.

[25] In totality, I consider this to be a factor that resolves slightly against finding in Ms Aristodemou’s favour, but not greatly so, and that the factor could be outweighed by other factors if they were strongly in her favour.

5. The merits of the application

[26] The merits of the application to which I must have regard are whether or not, on the basis of the limited evidence I have seen to date, discloses a likely unfair dismissal.

[27] In favour of a finding that the merits of her application are in Ms Aristodemou’s direction is that she was unaware, and apparently genuinely so, that she may have been replaced in her job by someone employed after she was dismissed until the conversation with her industry colleague in September 2014. She understood, until that point that her dismissal was for the reason set out in Sunbeam’s letter of termination of employment, namely that her position no longer existed, as “a result of change in operational requirements and restructure of the sales team” and further that, the “company has considered all reasonable options for redeployment and regrets that there are no suitable alternative positions available for you”. The conversation with her industry colleague led her directly to question what had been said to her in May, and in particular whether it was accurately a case that there had been a change in the company’s operational requirements leading to her position no longer existing.

[28] Ms Aristodemou points to several factors as being relevant to this consideration;

• The balance of her work included significant account management work, which is an ongoing requirement;



• She believed the person employed subsequent to Ms Aristodemou’s dismissal was a friend of the manager’s and was performing substantially the role she left;



• The person had been employed into the role swiftly and without transparent process;



• Where there had originally been three Victorian Account Managers, there were still three (after briefly reducing to two upon the departure of Ms Aristodemou).

[29] Sunbeam argued several factors against these propositions;

• Ms Aristodemou was employed to undertake a job that comprised two roles, the dominant part of which was the National Merchandising Coordinator role; which duties are no longer required in the way they once were;



• The new Territory Sales Manager position was advertised through the internet starting on 30 July 2014 and was filled a few weeks later on 19 August 2014; Ms Aristodemou could have applied for the position if she wished, but did not do so; and the person who won the position applied and won the position through the advertising process;



• While the new Territory Sales Manager position comprises account management work, which was part of Ms Aristodemou’s job, it does not comprise the merchandise coordination work that was also a part of her job.

[30] There is no evidence before me in relation to whether there was any obligation on Sunbeam arising from of a modern award or enterprise agreement to consult with Ms Aristodemou about the redundancy. 7 While the evidence is incomplete on the subject of what Ms Aristodemou knew about the prospect of her job ending, the circumstances indicated by the evidence would show that there was some knowledge. For example her evidence indicates that she came to apply for the Regional Manager Victoria position because of some uncertainty on her part about the ongoing nature of the National Merchandising Coordinator part of her job. The evidence is also unclear as to whether there had been a consideration of whether it would have been reasonable in all the circumstances to redeploy Ms Aristodemou into another position.8 Ms Aristodemou’s evidence is that she was expecting on the day she was dismissed to have discussed with her a contract for an alternative position but that she was told there was no longer funding for such a position.

[31] Upon termination, Ms Aristodemou was paid her statutory entitlements to payment in lieu of notice (a total of five weeks’ pay, taking into account her age) and redundancy (total 12 weeks’ pay), and which appear to be consistent with Sunbeam’s obligation under the National Employment Standards.

[32] In order to be successful on the merits of this matter it would be necessary for Ms Aristodemou to demonstrate that her dismissal was not a genuine redundancy, within the meaning of s.389 of the Act, and that if it was not genuine the criteria for considering harshness, etc set out in s.387 combine to compel a finding that she was unfairly dismissed and that the remedy to be ordered should be greater than the amounts that have already been paid to her, calculated in accordance with the mechanisms ordinarily employed by the Commission in such circumstances.

[33] The limited evidence before me suggest that these matters are likely to resolve against Ms Aristodemou.

[34] I accept the submissions by Sunbeam that the job undertaken by Ms Aristodemou at the time she was dismissed comprised two essential elements; the National Merchandising Coordinator role, together with a Victorian Account manager role. Those submissions are broadly consistent with Ms Aristodemou’s answers to questions in cross examination, in which she conceded that the National Merchandise Coordinator role could have been perhaps 60% of her job, with the Account Manager role taking perhaps two days per week. The submissions by Sunbeam, together with consideration of Ms Aristodemou’s own position description and the job that was subsequently advertised by Sunbeam commencing on 30 July 2014 show that there were key differences between the two roles. The evidence would, in my view, lead to a finding that Sunbeam no longer required Ms Aristodemou’s job to be performed by anyone because of changes in the operational requirements of their business.

[35] In addition, because there was no evidence put forward in relation to the coverage of Ms Aristodemou by a modern award or enterprise agreement, and possibly also because there is a circumstantial evidence which suggests she may have had an awareness of her job in its then extant state ending before it did, it is also unlikely that a finding would be made that her dismissal was not a genuine redundancy for reasons of the failure to consult about the redundancy. Similarly, because of the same circumstantial evidence about prior knowledge, it is also unlikely that there would be a finding that there had been a failure to consider possible redeployment.

[36] As a result of these considerations, I find that it is more likely than not that a detailed consideration of the evidence by the Commission would lead to a finding that Ms Aristodemou’s dismissal was a genuine redundancy.

6. Fairness as between the person and other persons in a similar position

[37] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants who might not receive an extension of time to their applications.

[38] Broadly speaking, it can be expected that the Commission may be disposed to favourably consider an extension of time in the circumstances of a person finding out sometime after the date that they were dismissed for reasons of redundancy, that the reasons for their dismissal may be questionable. However coupled with that proposition would be an expectation that the merits of the person’s case had significant strength. It would be unlikely that the Commission automatically grant an extension of time to a person questioning the reasons for that redundancy merely because they wished to do so.

[39] In all, I consider this factor does not resolve in Ms Aristodemou’s favour, because of the limited merits of her case, to which I have referred above.

[40] I have referred above to the reason for the delay in Ms Aristodemou’s application and that it may be a factor that resolved in her favour were the substantive merits of her application also in her favour. The question of fairness to other applicants is also dependant on the substantive merits.

[41] The questions of when Ms Aristodemou became aware of her dismissal, and the action taken by her to dispute her dismissal, are neutral factors. Because I have found the merits of Ms Aristodemou’s application are likely to resolve against her, and that it is likely her dismissal will be found to be a genuine redundancy, it follows that the weight given to the reasons for the delay in the making of Ms Aristodemou’s application should be reduced.

[42] Taking into account all relevant factors, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy.

[43] For the reasons I have given, I decline to grant an extension of time pursuant to s394 of the Act and will issue an Order dismissing Ms Aristodemou’s application as being out of time.

COMMISSIONER

Appearances:

Ms L Aristodemou on her own behalf

Ms S Williams (Australian Industry Group) for the Respondent

Hearing details:

2014.

Melbourne:

November 11.

 1   Transcript, PN 101

 2   Transcript, PN 98

 3   Transcript, PN 176 – 178

 4   Transcript, PN 181 – 184

 5   Exhibit A1, paras 16 - 17

 6   Exhibit R1, para 20

 7   See Fair Work Act, s.389(1)(a)

 8   Ibid, s.389(2)

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