Meagan Wearne v Flight Centre Travel Group T/A Flight Centre Travel Group Limited

[2021] FWC 6012

[2021] FWC 6012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Meagan Wearne
v
Flight Centre Travel Group T/A Flight Centre Travel Group Limited
(U2021/7458)

COMMISSIONER WILLIAMS PERTH, 1 OCTOBER 2021

Application for an unfair dismissal remedy

[1] Mrs Meagan Wearne (Mrs Wearne or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Flight Centre Travel Group T/A Flight Centre Travel Group Limited (the Respondent).

[2] The application states that the Applicant’s dismissal took effect on 30 July 2021. The application was made on 21 August 2021.

[3] The application has been lodged more than 21 days after the alleged dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“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.”

[5] The Fair Work Commission’s staff wrote to the parties explaining the requirements of section 394(2) of the Act and requested the Applicant respond in writing explaining why she considered her circumstances were exceptional and to provide any supporting evidence.

[6] The Applicant has provided a written response to the Fair Work Commission’s direction.

[7] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The reason for the delay

[8] The Applicant’s submission is as follows.

“I would like to submit the below exceptional circumstances:

1) The ongoing disruption, uncertainty and stress experienced due to COVID-19. 

2) The rushed manner of the final termination date and calculations communicated as attached and in a phone call on 30 July. 

During the communication with Flight Centre payroll around my redundancy calculations they under-calculated my FTE, proposing to discount my redundancy payment by 20% due to a reduction in FTE forced upon me while pregnant during COVID to 0.8 FTE. 

I challenged this, postponing my redundancy whilst they communicated they would be upholding the underpayment. However, it was eventually clarified that I would be paid at 1.0 FTE for the redundancy, but only on the 30th July and I clearly expressed I still had questions about the notice period, which you can see attached were not responded to until after the payment had been processed by Fight Centre. 

Given I had been on unpaid leave I am unsure why this process was rushed instead of getting it correct and I posit this is exceptional circumstances, as I could not be sure my actual termination date would be the date expressed until these queries had been answered.” 

[9] Attached to the application was a copy of a letter dated 23 September 2020 which reads as follows.

“Delivered via email

23 September 2020

PRIVATE & CONFIDENTIAL

Dear Meagan,

It was announced on 22 September 2020 that a decision had been made to restructure our senior leadership team within Flight Centre Brand. At this time you were notified that as part of these changes your role with the new structure will not exist and will be made redundant effective from the 9 October 2020.

We understand that you are currently on parental leave; therefore we would like to give you some options that may suit your personal circumstances.

You have been required to apply for the role via an expression of interest in the new structure. If you are unsuccessful in securing a role, then you are able to remain on parental leave until such time as you wish to return or your 12 month parental leave period is complete.

At this time we will attempt to find an alternative role for you, if we are not able to source a role, then a redundancy will apply.

Alternative you can select to receive a redundancy at any time from the 9 October 2020 or at the completion of your government paid parental leave.

We know that this is a very difficult time and maybe upsetting to hear. We would like to take into consideration any concerns or circumstances that you raise, in order to mitigate the impact that these changes have on you. Please raise these considerations via [email protected] prior to the implementation of these changes on the 9 October 2020. You can also raise any other questions or queries via the above email address.

Benestar is also available to you for any support you may need on or 1300 360 364 Again we are sorry that these decisions impact you in this way.”

[10] Prior to the Applicant’s dismissal taking effect on 30 July 2021, she had been aware since September 2020 that her role was to be made redundant.

[11] None of the issues the Applicant raises regarding the finalisation of her redundancy and her payment calculations and the finalisation of her termination date are matters that prevented the Applicant filing this application within time. Most of these issues occurred before her dismissal took effect.

[12] It is also not uncommon for employees to have disagreements with their employer about their final payments.

[13] Separately, the Applicant’s reliance on COVID-19 lacks any specificity that would support a decision that in her case it was an exceptional circumstance.

[14] None of matters relied on in the Applicant’s submission are acceptable reasons for the delay and none are exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

[15] The Applicant was aware of her dismissal before it took effect.

Any action taken by the person to dispute the dismissal

[16] There is no evidence that the Applicant took any action to dispute her dismissal other than the making of this application.

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

[17] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[18] The Applicant submits in her application that her dismissal was unfair because she was not duly considered for a new position because she was on maternity leave and was not able to interview on the day allocated for interviews because her baby was then only eight days old. She advised the Human Resources department of the Respondent at the time she would not be able to interview but was advised if she could not interview on that allocated day she would not be considered.

[19] The Respondent submits that the Applicant, having been notified her position would become redundant, had the opportunity to apply for a regional sales leader role of which there was one based in Western Australia and for which she then submitted an application on 22 September 2020.

[20] The Respondent submits that, in conversation with her leader, the Applicant withdrew her interest in applying for this role on 23 September 2020, commenting that she appreciated being included in the process, but her preference was to remain on maternity leave. An email from the Applicant dated 23 September 2020 stating this is attached to the Respondent’s form F3 Employer Response.

[21] The Respondent submits that, conscious of the Applicant being on parental leave, it then presented three options for her. To either apply for advertised roles and if successful she would remain on parental leave as planned and the role would commence upon her return, if not applying for a role or if unsuccessful in securing a role she could remain on parental leave until she was ready to return or her 12 month parental leave was due to end at which time they would find an alternative role and if that was not possible a redundancy would apply or finally electing to receive a redundancy at any time from 9 October 2020 or at the completion of her government paid parental leave.

[22] Clearly there is some disagreement between the parties in this instance and consequently it is only at a hearing of a matter such as this would it become clear what the merit or otherwise is of the Applicant’s complaint.

[23] Consequently, I view the merits of the application as a neutral factor in this decision.

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

[24] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[25] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[26] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[27] An Order [PR734401] to that effect will be issued in conjunction with this decision.

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