Maria Louis v Aegis Services Australia Pty Limited T/A Aegis

[2014] FWC 6792

[2014] FWC 6792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Louis
v
Aegis Services Australia Pty Limited T/A AEGIS
(U2014/8664)

COMMISSIONER LEWIN MELBOURNE, 24 OCTOBER 2014

Application for relief from unfair dismissal - whether exceptional circumstances exist for the Fair Work Commission to consider exercising its discretion to extend the period for making an unfair dismissal application - no exceptional circumstances - application dismissed.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy by Ms Maria Louis. Ms Louis was employed by Aegis Services Australia Pty Ltd (Aegis) from 12 February 2010 until the termination of the employment on 2 June 2014.

[2] Ms Louis made her application on 7 August 2014, later than the 21 day period after the date of dismissal prescribed by s 394(2)(a) of the Fair Work Act 2009 (the Act) within which an application for an unfair dismissal remedy must be made. The application is 45 days out of time. Ms Louis asks that the Fair Work Commission (the Commission) exercise its discretion under s 394(3) of the Act to extend the period for making the application for an unfair dismissal remedy.

Relevant legislation

[3] Section 394(3) of the Act, which contains provisions for allowing a further period to make the application, is set out below:

“(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.”

Consideration

[4] In order for the Commission to exercise its discretion to allow a further period for the application to be made, the Commission must be satisfied that there are exceptional circumstances taking into account the matters stipulated in s 394(3).

[5] If the Commission is satisfied that the circumstances are exceptional, it must then determine if a further period for the making of the application should be allowed.

[6] I now turn to each of the matters I must take into account in determining the matter.

The reason for the delay

[7] Ms Louis resigned her employment on 2 June 2014 during a meeting with Aegis, wherein Aegis informed her they would be terminating her contract early. Ms Louis claims she was in shock and stress in the immediate period after the termination of her employment. On 17 June 2014 Ms Louis contacted Aegis to further discuss their decision to terminate her contract early and request an investigation. It was not until 7 August 2014 that Ms Louis made an application for an unfair dismissal remedy to the Commission.

[8] During the period of the delay, Ms Louis did not seek to inform herself as to the time period within which an application under s 394 of the Act must be made. Ms Louis did not make any enquiries at any time during the period between the date of the termination of her employment and when she made the application for an unfair dismissal remedy to the Commission about the remedies available from the Commission, or in any other forum.

[9] Ms Louis’ evidence at the hearing suggests that she thought she may have had up to three months to make an application for an unfair dismissal remedy, but there was no evidence to suggest Ms Louis had a factual basis for forming this belief. Further, Ms Louis stated she did not “want to contradict and complicate the matter” by lodging an application with the Commission before she had a response from Aegis about her request for an internal investigation of their decision to end her contract.

[10] It is not an exceptional circumstance that an employee whose employment has been terminated has not sought out, in a timely manner, information on the remedies that may be available and taken action in accordance with that information.

[11] The reasons for delay advanced by Ms Louis do not support a finding that there are exceptional circumstances.

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

[12] Ms Louis’ evidence was that on 2 June 2014 she was requested to attend a meeting with Aegis, for which she was entitled to have a support person with her. At that meeting Ms Louis was told her position was being made redundant and her last day of employment would be 9 June 2014. At the conclusion of that meeting Ms Louis verbally stated she was resigning from her employment. On 4 June 2014 Aegis wrote Ms Louis a letter accepting her resignation.

[13] Ms Louis resigned her employment on 2 June 2014 and was aware of having resigned at the time she did so. Ms Louis was also made aware by Aegis on 2 June 2014 that Aegis intended to terminate her employment on 9 June 2014.

[14] I find that no exceptional circumstances arise in relation to when Ms Louis first became aware of the dismissal.

Any action taken by the person to dispute the dismissal

[15] On 17 June 2014 Ms Louis sought an investigation from Aegis as to the reason it sought to terminate her employment contract early. On 18 June 2014 Aegis replied that the matter would be investigated. On 27 July 2014 Ms Louis sought an update from Aegis about the status of the investigation. On 28 July 2014 Aegis stated that they were awaiting the return of a manager from annual leave before investigating the matter. On 6 August 2014 Aegis confirmed their decision to terminate Ms Louis’ contract before its end date.

[16] From the date of the termination of her employment until 7 August 2014, when Ms Louis lodged her application for an unfair dismissal remedy with the Commission, the action she took to dispute the dismissal was to contact Aegis in relation to their decision to terminate her contract early.

[17] Ms Louis took no other steps to dispute her resignation and did not claim to have been forced to resign until the institution of these proceedings. Between 2 June 2014 and 7 August 2014 Ms Louis did not otherwise dispute her dismissal, either her alleged constructive dismissal or the decision of Aegis to terminate her contract early, including before the Commission.

[18] It is not an exceptional circumstance for an employee to try to resolve such a dispute through contact with the employer, however, it is presumed from the time limits provided for in the Act that the assumption made by the parliament is that an aggrieved employee would seek out and take action to dispute the dismissal within a timely period.

[19] It is not an exceptional circumstance that Ms Louis took no action to dispute her dismissal, other than to seek further reasons for the decision of Aegis to terminate her contract early, within the statutory 21 day period after the dismissal took effect for making an application for an unfair dismissal remedy.

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

[20] The submissions of Aegis do not provide any evidence to suggest they would be prejudiced if the period for accepting the application were extended.

The merits of the application

[21] The substantive application may have only limited prospects for success on the basis that Ms Louis resigned her employment after being told that Aegis was to terminate her contract early. Ms Louis argues that she was forced to resign due to the circumstances in which Aegis informed her of their decision to terminate her employment.

[22] The evidence of Aegis is that it accepted the resignation, by letter, on 4 June 2014. Ms Louis took no steps between the two working days of 2 June 2014 and 4 June 2014 to put Aegis on notice that her resignation was not intended. On its face, Ms Louis would have difficulties in making out a case for constructive dismissal.

[23] If it were accepted that Ms Louis’ resignation was constructive dismissal, Aegis has submitted that the decision to terminate her employment was a case of genuine redundancy. However, Aegis relied on and acted in accordance with an unqualified right to terminate the employment found in a contract of employment between Ms Louis and Aegis, rather than the redundancy provisions found in the Advantage Employment Agreement 2007, which also formed part of the terms and conditions of Ms Louis’ employment with Aegis. In these circumstances there would be a dispute about: whether there was a genuine redundancy; and, the applicability of s 386(2)(a), in relation to fixed-term contracts, to the dismissal.

[24] In relation to the merits of the substantive application, as to whether the dismissal was harsh, unjust or unreasonable, as the parties have filed insufficient material on this point and there has not been a full hearing on the facts in dispute, no findings about the merits of the case can be made.

[25] On the limited material available before me, Ms Louis would need to overcome a number of jurisdictional hurdles in order to pursue her substantive application.

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

[26] The employment of two other employees was also terminated by Aegis at around the same time. The circumstances of these employees were not raised as representing any issues of fairness for the purposes of this criterion.

Conclusion

[27] In relation to the considerations I am required to take into account under s 394(3) of the Act in determining whether exceptional circumstances exist in relation to the late filing of the application for an unfair dismissal remedy, I find that none of the evidence or submissions raised by Ms Louis establishes that exceptional circumstances exist in this matter.

[28] The circumstances are of an employee who resigned her employment when faced with the intention of the employer to terminate the employment relationship, who did not seek to withdraw the resignation and where the employer’s termination of the employment may be found to be a genuine redundancy within the meaning of the Act. The employee took no steps to inform herself of the remedies available to her and make an application under s 394 of the Act within the statutory period. The delay in making the application lacks any substantive reason which could be accepted as exceptional and there are no other exceptional circumstances.

[29] Accordingly, as I have found that there are no exceptional circumstances in this matter, the discretion to extend the period for making the application is not enlivened.

[30] I must dismiss the application and order so accordingly.

COMMISSIONER

Appearances:

Ms P Louis, self-represented.

Ms P Kazim for Aegis Services Australia Pty Ltd.

Hearing details:

2014.

Melbourne:

September 26.

Final written submissions:

Respondent: 30 September 2014.

Applicant: 1 October 2014.

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