Marcelia Powell v Australian Commercial Catering Pty Ltd

[2014] FWC 1914

[2014] FWC 1914

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marcelia Powell
v
Australian Commercial Catering Pty Ltd
(U2013/16006)

COMMISSIONER JOHNS MELBOURNE, 20 MARCH 2014

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] On 19 November 2013 Marcelia Powell (Applicant) lodged an application with the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The Respondent to the application is Australian Commercial Catering Pty Ltd (Respondent).

[2] On 9 December 2013 the Respondent filed its response to the application.

[3] The matter was listed for conciliation on 23 December 2013. The matter remained unresolved. The matter was referred for hearing.

[4] It is common ground between the parties that the Applicant’s employment ceased on 25 October 2013. The application for an unfair dismissal remedy was received by the Commission on 19 November 2013. As such the application was lodged 4 days outside of the 21 day time limit for making an unfair dismissal application.

[5] Because the application was lodged out of time it was necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time). Under section 394(3) of the Act the Commission may allow a further period if it is satisfied that there are exceptional circumstances.

[6] On 7 February 2014 the Commission issued directions for the parties to file and serve submissions and witness statements in relation to the out of time issue. Upon receipt of the file in Chambers, on 7 March 2014 the Commission required the parties to file responses to each of the subsections of section 394(3) of the Act.

[7] The hearing of the extension of time application occurred on 14 March 2014. At the hearing:

• the Applicant represented herself and gave sworn evidence; and

• the Respondent was represented by its Managing Director, Peter Damos. Mr Damos also gave sworn evidence.

[8] As both advocates were unfamiliar with conducting matters before the Commission it was necessary for the Commission to take a more inquisitorial role than it would otherwise.

Decision

[9] At the conclusion of the extension of time hearing the Commission, as presently constituted, determined that there were no exceptional circumstances that would justify allowing the Applicant a further period to file her application for an unfair dismissal remedy. The Applicant’s application was dismissed.

[10] The Commission now provides reasons for the decision.

Background

[11] The Applicant commenced employment with the Respondent in October 2004 on a permanent part-time basis.

[12] The cessation of the Applicant’s employment was a consequence of Respondent losing a catering contract at Robert Bosch Australia in Clayton. On 16 August 2013 the Respondent notified its employees that it had lost the catering contract to a competitor, Alliance. The Applicant was advised that her employment would end on 25 October 2013.

[13] Alliance offered the Applicant a casual position with a lesser number of hours. Alliance proposed not to recognise the Applicant’s prior service with the Respondent. The Applicant considered the offer from Alliance to be inferior to her position with the Respondent. She did not accept the offer from Alliance.

[14] On or about 11 October 2013 the Respondent provided the Applicant with an estimate of her severance entitlement in the amount of 16 weeks (the Applicant having been employed for 9 years). However, it was made clear to the Applicant that, if she rejected an offer of employment that was no less favourable than her employment with the Respondent, no severance would be paid.

[15] On 18 October 2013 the Applicant confirmed her intention to accept a redundancy.

[16] On 23 October 2013 the Respondent made an offer of continuing employment with it. The offer indicated that the Applicant’s “current work hours, rate of pay and conditions will be mirrored and [her] job description maintained” 1 although at a new site.

[17] The Applicant rejected the offer of continuing employment. Although the new position was located approximately 15 minutes from the former employment in Clayton the Applicant maintained that it was more difficult to get to. She stated that as she shares a car with her husband, and public transport would be too difficult, she was not able to efficiently travel to the other location. 2 She also stated she did not feel safe on public transport. For this reason the Applicant also considered this offer from the Respondent inferior. She rejected it.

[18] The Respondent maintains that the offer of continuing employment with it was acceptable alternative employment. It says that the Applicant’s rejection of the offer constituted her resignation. Although the issue was not before the Commission it is unlikely that a tribunal would find that the termination of the Applicant’s employment was anything other than at the initiative of the Respondent.

[19] However, what became apparent in the hearing is that the real substance of the dispute between to the parties is not whether the termination was unfair, but whether the Applicant was entitled to a severance payment and whether, in not paying a redundancy, the Respondent breached the National Employment Standards (NES). That is not a matter that the Commission can determine. Consequently, the Commission, as presently constituted, made the Applicant aware that she might consider pursuing the alleged breach of the NES with the Fair Work Ombudsman. The Respondent was made aware of the operation of section 120 of the Act.

Legislative scheme

[20] Subsection 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect:

(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).

[21] Subsection 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied there are exceptional circumstances. The Tribunal in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[22] A Full Bench of the Commission has held the following in relation to “exceptional circumstances”: 3

[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.

[23] As can be seen above, an unfair dismissal application “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Consideration

The reason for the delay

[24] The Applicant’s evidence is that she sent her application to the Commission by registered post on 14 November 2013. 4 In evidence was the Australia Post receipt stamped 14 November 2013,5 i.e. the day before the application was due to be filed in order to satisfy the 21 day requirement.

[25] The Applicant’s evidence is that she had a friend help her with her application. 6 She obtained the unfair dismissal application form from the Commission’s website. She confirmed she read most of the information on the website relating to unfair dismissal applications, including the 21 day time limit to file an application.7 She stated that she read the options for lodgement of the application, however she did not read that it could be done electronically or by telephone.8 The Applicant confirmed she had access to email.9

[26] The Applicant submits that the application having been received by the Commission five days later was beyond her control. In support of this submission the Applicant refers to the one day estimated delivery time provided by Australia Post for metropolitan areas. 10

[27] The Respondent does not accept the Applicant’s argument. It states Australia Post only provides expected time frames and therefore the Applicant cannot rely on this.

[28] The Commission does not accept the Applicant’s argument that the late filing of the application was beyond her control. Having accessed the application on-line and also having access to email, the Applicant was very much in control of the timing of the application. With only one day to go deciding to post the application was not prudent. The applicant had within her means the capacity to ensure her application was received in time, but chose not to do so whether by lodgement on line, by email, telephone or facsimile.

[29] This factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.

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

[30] The Applicant’s evidence is that she had three months notice of the dismissal.

[31] This factor is weights against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application. For some time the Applicant knew her employment would end on 25 October 2013. She had plenty of time to prepare and be ready to file an application for an unfair dismissal remedy soon thereafter. There is no excuse for waiting to post the application one day before it was due.

Any action taken by the person to dispute the dismissal

[32] The Applicant’s evidence is that she did not dispute the dismissal as her understanding was that she was going to be paid a redundancy.

[33] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.

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

[34] The Respondent did not specify any particular prejudice it would suffer if an extension of time was granted to the Applicant.

[35] A long delay can give rise to a presumption of prejudice. 11 Given the delay in this matter is four days, this is not relevant in the circumstances.12

[36] This factor favours exercising the discretion to allow a further period for the Applicant to lodge her application.

The merits of the application

[37] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.” 13

[38] During the hearing on 14 March 2014, the Applicant conceded that the application is not truly an application for unfair dismissal remedy. Rather, it is a claim for redundancy. 14

[39] More likely than not the termination of the Applicant’s employment would be considered a genuine redundancy. Accordingly, the merits of the unfair dismissal application (as opposed to her claim for a redundancy payment) appear relatively weak.

[40] This factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.

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

[41] This factor does not appear to be relevant in the circumstances as there are no persons in a similar position.

Conclusion

[42] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3)(a) to (e) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[43] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. (see Nulty v Blue Star Group Pty Ltd 15)

[44] Suffice to say it is not enough for the Applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.

[45] The Applicant’s explanation for the late lodgement of her unfair dismissal application boils down to the application being “delayed in the mail’.

[46] The Applicant posted her application on 14 November 2014 by registered post. There was no explanation provided as to why the Applicant chose to use registered post rather than express post or electronic, email, telephone or facsimile lodgement. It is not an unknown occurrence that mail does not reach its intended destination or that its delivery is delayed beyond normal delivery times. In any event, posting the application by registered post the day before it was due is not a serious attempt to lodge the application within time.

[47] The Commission also notes that the substantive claim has little merit. What the Applicant seeks is a redundancy payment not a remedy for unfair dismissal.

[48] In considering all of the circumstances related to Applicant’s application, and on the basis of the evidence provided by the parties, the exceptional circumstances envisaged by s 394(3) of the Act to exercise the discretion to allow a further period within which to lodge the application do not arise in this case.

[49] The period for the Applicant to lodge her application is not extended. The application is dismissed.

COMMISSIONER

Appearances:

Ms M Powell representing herself.

Mr P Darmos representing the Respondent.

Hearing details:

2014.

14 March.

Melbourne.

 1   Exhibit “R1”.

 2   PN118-120

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

 4   PN 34

 5   Exhibit “A1”

 6   PN16

 7   PN22, 24

 8   PN26-32

 9   PN28

 10   Attachment to the Applicant’s submission filed on 11 March 2014.

 11   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

 12   See Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010] FWA 4080.

 13 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 14   PN51, PN181

 15   [2011] FWAFB 975

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