Mairi-Anne Macartney v Pacific Worldwide Pty Ltd T/A Chenco Foods

[2013] FWC 9120

[2013] FWC 9120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mairi-Anne Macartney
v
Pacific Worldwide Pty Ltd T/A Chenco Foods
(C2013/5842)

COMMISSIONER WILSON MELBOURNE, 20 NOVEMBER 2013

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted.

Background

[1] Ms Mairi-Anne Macartney filed an application for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Macartney’s application relates to the termination of her employment by Pacific Worldwide Pty Ltd T/A Chenco Foods (Chenco Foods) on 5 July 2013, and is date-stamped by the Commission as having been received on 30 August 2013.

[2] Section 366 of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. As her employment was terminated on 5 July 2013, the application would need to have been made to the Commission no later than 26 July 2013 in order for it to be within time. Ms Macartney’s application is therefore more than one month out of time.

[3] A conference with the parties was held on 16 October 2013 pursuant to s.368 of the Act. In the conference, Chenco Foods objected to the continuation of Ms Macartney’s application arguing it was made after the period allowed for in the Act. Ms Macartney acknowledged this fact and sought an extension of time pursuant to s.366 of the Act.

[4] After the conference both parties provided written submissions as to whether an extension of time should be granted.

[5] The circumstances of Chenco Foods terminating Ms Macartney’s employment include the following;

● Ms Macartney started working for Chenco Foods on or around 18 August 2011 and worked in a full-time capacity from that time.

● At the time Ms Macartney’s employment was terminated, she was engaged as Chenco Foods’ Logistics and Administrative Manager. The duties she performed were essentially of a clerical nature, requiring her to act as a point of liaison between customers and distribution staff. Her duties included taking orders from customers; verifying they had been delivered; and invoicing those orders. Later in her employment she undertook “demonstration” duties — cooking and handing out samples of Chenco Foods’s products in shops and at food events.

[6] Chenco Foods is a small company. In mid-2013 they communicated to Ms Macartney that in their view the role she performed did not warrant a full-time position and that it would be reduced to a part-time position to reduce costs.

[7] Chenco Foods told Ms Macartney that while they regarded her position as redundant, she could choose to perform the role on a part-time basis working three days per week. After some time and discussion between the parties, Chenco Foods wrote to Ms Macartney on 1 July 2013 confirming this position.

[8] Following this communication, Ms Macartney agreed to terminate her employment on 5 July 2013 in return for a redundancy payment. The parties exchanged and signed written terms of settlement, and Ms Macartney subsequently left Chenco Foods.

[9] Chenco Foods opposes the granting an extension of time on the basis that no exceptional circumstances exist.

Legislative scheme

[10] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:

366 Time for application

(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).

(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.

[11] Subsection 366(2) of the Act states that a further period for making an application may be allowed by the Commission in the event there are “exceptional circumstances”, and taking into account five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”: 1

[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.

Consideration

[12] I turn to consider each of the criteria set out in subsection 366(2).

The reason for the delay

[13] Ms Macartney became aware of information after she left Chenco Foods which she says caused her to question whether the termination of her employment was a redundancy or whether there were other reasons that motivated Chenco Foods to form the view that it did not wish to continue with her employment. Ms Macartney’s submissions in relation to the question of whether an extension of time should be granted for the making of her application include the following:

“... I became aware that after my position was made redundant on 5/7/2013 and I left the employment of Chenco Foods, the position, I believe, has been offered to a new employee similar to that of the role I held. Based on the premise that this position was made redundant, I feel this is not acceptable. This was bought to my attention by a current employee of Chenco foods around August 2013 which is clearly after the prescribed 21day provision hence my application.

...

I made NO claim against Pacific Worldwide within the 21 days because although hurt and angry at how I had been treated, there was no malice on my part. I was given what I was entitled too [sic] and put how badly I was treated behind me.

It was not until I was speaking socially to Shirley Tang, in August 2013, about her family and the job that she said a new “lady” was starting. I asked in passing – Part time 3 days per week, to which she replied NO 5 days 9am to 3pm. I finished the conversation and rang Garry (my husband). We both agreed I had been mistreated and misrepresented with information, and therefore sent in the claim for a hearing and now a letter requesting an extension past the normal 21 days.” 2

[14] Ms Macartney connects this knowledge with a belief that she was “dismissed, after having carers leave for sick daughter”. 3 She believes the replacement employee is performing a similar role to the one she left, and that Chenco Foods’ decision to make her redundant is connected with her taking of carers’ leave.

[15] In the course of the conference held on 16 October 2013, Ms Macartney said that she had commenced the general protections claim within a few days of learning the information referred to above.

[16] In this case, the reason for the delay relates to Ms Macartney’s knowledge of the reasons for the termination of her employment. Ms Macartney says, and I accept, that until the social telephone conversation in August she did not have reason to question whether the termination was anything other than a genuine redundancy. While Ms Macartney plainly disagreed with the decision about whether her former job could be performed in less time than she herself was performing it, I accept that she did not dispute, at least at the time that she agreed to be made redundant and left Chenco Foods on 5 July 2013, that making her position redundant was an option open to them. I accept that it was only sometime after leaving the company that Ms Macartney questioned whether her redundancy was genuine.

[17] In the circumstances, I am satisfied that the reason for the delay was that Ms Macartney was unaware, until the time of the conversation, that her position may not have been a genuine redundancy and that the termination of her employment was for another reason.

Any action taken by the person to dispute the dismissal

[18] For the same reasons indicated above relating to Ms Macartney’s knowledge about an employee who was engaged after her, she did not take any action to dispute her termination before or after she left Chenco Foods. However, within a few days of learning the knowledge indicated above, Ms Macartney took action to dispute her dismissal.

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

[19] Chenco Foods made submissions that they would suffer prejudice in the event that an extension of time were granted to Ms Macartney because the parties have previously entered into written terms of settlement at the time of the cessation of Ms Macartney’s employment (and referred to above) and that part of the agreed settlement included payment of an amount they say is above her statutory entitlements in exchange for a release from all future claims.

[20] The status of the agreed terms of settlement, and the extent to which they may bar or limit the capacity of Ms Macartney to ultimately proceed with her claim, are not the subject of this decision. Nonetheless, it is noted that the terms of settlement are predicated upon the presumed fact her employment was terminated for reasons of redundancy. In the event that it were found that the termination of her employment was not a genuine redundancy, presumably the basis of the terms of settlement would fall.

[21] In the event that an extension of time is granted to Ms Macartney, the prejudice to Chenco Foods will be principally the prejudice of the elapsed time between the date on which the termination of employment took effect and the date on which the application was made. Should an extension of time be granted to Ms Macartney, Chenco Foods will still have the capacity to argue, including in any court proceedings which may arise, that Ms Macartney accepted the fact and basis of the termination of her employment, at least at that occurred, and that the terms of settlement were freely entered into by her and that they should have comprehensive application to her situation.

The merits of the application

[22] Beyond the disputed question of whether an extension of time should be granted to Ms Macartney for the making of her application, the basis of her application is a complaint that adverse action was taken against her by Chenco Foods for a prohibited reason, namely that she was “dismissed, after having carers leave for [her] sick daughter”. 4

[23] Ms Macartney’s submissions in this regard and on other relevant matters include that following a positive performance review in November 2012 she had requested a pay rise which had been refused, apparently amicably; and that in late May 2013 Ms Macartney needed to have time off to care for her sick daughter. Following her return from this leave (which was said to be only a few days), Ms Macartney alleges that she said to Chenco Foods that she “wouldn’t feel comfortable doing any ‘extra’ roadshows, or working away from home, as [her daughter] needed me home and that the recovery would be long”. 5 Ms Macartney connects these events with the decision making process of Chenco Foods to declare her position redundant.

[24] Chenco Foods contests this characterisation of the events and submit strongly that their decision to terminate Ms Macartney’s employment was a genuine redundancy. 6

[25] Relevantly, the company says that the allegations made by Ms Macartney regarding a replacement employee working full-time are incorrect; 7 and that no person has worked or is currently working in Ms Macartney’s former role since her dismissal.8 Chenco Foods also say there is no evidence to support her contention that her employment was terminated because she had previously taken carers’ leave.9

[26] The facts, as alleged by Ms Macartney, are arguable to a degree, notwithstanding the submissions of Chenco Foods.

[27] On the basis of the material presently before the Commission, it is not possible to give an indication of the strength of the merits of Ms Macartney’s case. In the event that Chenco Foods proves that considerations of family responsibilities were not a factor in their decision making and Ms Macartney is unable to bring forward evidence showing cause-and-effect, the case may well fail. On the other hand, in the event that the circumstances as Ms Macartney characterises them are proven, it may be she is able to make out her case that there has been a breach of the Act’s general protections provisions.

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

[28] The Commission’s consideration in respect of this criterion is a consideration of Ms Macartney situation in comparison to other persons who may have been dismissed and who allege a breach of the Act’s general protections provisions.

[29] In this regard, the reasons for the delay in making an application become relevant. That is, Ms Macartney left her employment on 5 July 2013 without questioning the reasons for the termination of her employment and that it was only sometime later, in August, after a conversation with an ongoing staff member of Chenco Foods, that Ms Macartney had reason to question the very basis of her termination. Ms Macartney acted on this new information quickly and submitted her general protections application to the Commission on 30 August 2013 and within what could be seen as a reasonable period for her to raise a complaint about the new knowledge. In all, it is likely that similarly dismissed employees armed with new information about the termination of their employment, might be granted the discretion of an extension of time for the filing of a general protections application, providing there are not reasons, arising from the other criteria case of s.366(2), that would militate against the exercise of the discretion.

Decision

[30] Having considered all of the circumstances relating to Ms Macartney’s application to the Commission I am satisfied there are exceptional circumstances in the manner envisaged by s.366 of the Act for the grant of a further period to Ms Macartney for the making of an application under s.365. I find that the exceptional circumstances are the new knowledge acquired by Ms Macartney during August 2013.

[31] An order extending the period of time in which Ms Macartney may make her application is issued at the same time as this decision.

COMMISSIONER

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2   Applicant’s Submissions, 20 October 2013, paras 1, 13, 14.

 3   Application for FWA to deal with a General Protections Dispute, Form F8, item 2.2.

 4   Ibid.

 5   Applicant’s Submissions, para 5.

 6   Respondent’s Submissions, 8 November 2013, para 4.

 7   Ibid, para 15.

 8   Ibid, para29.

 9   Ibid, para 30.

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