Mrs Andrea Ellery v Sarina Russo Job Access

[2016] FWC 1441

[2016] FWC 1441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Andrea Ellery
v
Sarina Russo Job Access
(U2016/4266)

COMMISSIONER GREGORY MELBOURNE, 11 MARCH 2016

Application for relief from unfair dismissal.

[1] Ms Andrea Ellery was employed by Sarina Russso Job Access (“Sarina Russo”) in November 2013 and worked on a part-time basis as an Employment Consultant at an office in Hastings until she was made redundant on 12 November 2015. Ms Ellery was subsequently provided with a letter confirming her employment with Sarina Russo was at an end.

[2] Ms Ellery subsequently filed an unfair dismissal application but it was not received by the Commission until 1 February, being 79 days after her last day at work and 58 days after the expiry of the standard 21 day time limit provided in the Fair Work Act 2009 (Cth) (“the Act”) for making application. Ms Ellery accordingly now seeks additional time in which to make application. This decision deals with that issue.

[3] Ms Ellery appeared in the proceedings on her own behalf. Mr David Ormesher, an in-house Legal Counsel from Sarina Russo, appeared on its behalf by telephone from Brisbane.

The Issue to be Decided

[4] Section 394(3) of the Act provides the Commission may extend the time for filing an unfair dismissal application lodged outside of the standard 21 day time limit if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account the following considerations:

“(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.” 1

[5] Therefore, are there “exceptional circumstances” in this matter to warrant an exercise of the Commission’s discretion to grant Ms Ellery additional time in which to make application?

The Evidence and Submissions

[6] Both parties provided limited submissions and evidence. Ms Ellery submits she was called to a meeting with her Manager on 12 November last year and told that due to changes to the contract Sarina Russo had with the Federal Government it was required to reduce staffing levels and, as a consequence, a number of staff were to be made redundant. Ms Ellery submits she understood the staffing level at the Hastings office where she worked would be reduced to one full time Employment Consultant, together with the Site Manager. She also indicated in her oral submissions she was not provided with any options of work elsewhere in this discussion, but was simply told her position had been made redundant.

[7] Her submissions also indicate she was not given any prior warning about the nature of the meeting, and did not have a support person present as a consequence. She also said she was given little opportunity to make any comment in response to what she was told during the discussions in the meeting. Her submissions continued to indicate that:

“Although distraught and traumatised by the experience I decided to make the most of the summer/school holidays, and therefore only commenced job searching on 27/01/16.” 2

[8] Ms Ellery submits that after beginning to look for work elsewhere she discovered Sarina Russo were advertising multiple Employment Consultant positions at different locations around Victoria. After further investigation she submits she discovered it had also recently recruited a new full-time Employment Consultant at the Hastings office. As a consequence of being made aware of this situation she then proceeded to file her unfair dismissal application.

[9] Ms Ellery accordingly now takes issue about whether her redundancy was genuine, given she was told the Hastings office did not have the budget to retain her position, but apparently advertised for a full-time employment consultant to take on her caseload a short time after. Her submissions also emphasise again that she was not informed about the nature of the meeting on 12 November, prior to it occurring, and did not have the opportunity to have a support person present in those discussions.

[10] In response to questions from the Commission Ms Ellery also said she did not make an unfair dismissal application immediately after being dismissed because at the time she accepted the reasons provided to her about why she was being made redundant. However, she also said she was aware of the option of making an unfair dismissal application, and decided to pursue this option when she subsequently obtained further information that led her to question whether the reasons for her termination, provided to her at the time she was dismissed, were in fact correct.

[11] Sarina Russo submits in response that Ms Ellery was made redundant after it met with her to discuss changes to its operational structure resulting from a new contract it had entered into with the Federal Government. It submits, in particular, that under these arrangements an on-going part-time Employment Consultant position was no longer viable. It also submits a number of alternatives were offered to Ms Ellery in the discussions that took place, including redeployment to other branches in south-east Melbourne, but these options were ultimately not accepted by Ms Ellery, and she elected instead to accept the option of being made redundant.

[12] Sarina Russo submits in conclusion that there are no exceptional circumstances that caused the application to be lodged outside of the standard 21 day time limit, and there is nothing to warrant the Commission exercising its discretion to extend time in which to make application.

Consideration

[13] It has already been emphasised that in considering an application for an extension of time the Commission must have regard to each of the matters set out in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion. A number of decisions of this Tribunal and its predecessors have also considered what is required to find “exceptional circumstances” exist to justify an extension of time being granted. The decision of the Full Bench in Nulty v Blue Star Group (Nulty) 3 was handed down in the context of a general protections application, however, the principles established in that decision have been held to be of broader application. Relevant extracts from the Full Bench decision are set out at [13] to [14] in the following terms:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 4

[14] The decision makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[15] Ms Ellery submits that at the time of her termination she was told it was a case of genuine redundancy because of an operational restructure that made her position redundant. She submits she was traumatised and distressed about being told she had lost her job, but had no reason at that time to doubt what she had been told. She was particularly concerned about no longer being able to work on a part-time basis. However, she submits it was only two months later when she again started looking for work that she became aware of information that suggested to her that she had been terminated for reasons other than those given to her at the time. She submits she then proceeded to immediately file an unfair dismissal application.

[16] However, it also appears Ms Ellery was aware of the possibility of making an unfair dismissal application at the time of her termination. Her submissions also indicate she was very upset at the time, particularly about the supposed restructure which had removed the option of her continuing to work in a part-time role.

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

[17] This is not a matter of any significance. Ms Ellery was made aware of her termination at the time it occurred and this was confirmed in a letter subsequently provided to her.

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

[18] Ms Ellery submits she did not take action at the time to dispute her dismissal, even though she was very upset by what had occurred, because she accepted the explanation provided to her at the time about why she was being terminated. She submits it was only with the passage of time, and after beginning to look for work, that she became aware of information which finally led her to decide to make an unfair dismissal application.

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

[19] Neither party made submissions about the relevance of this consideration. However, Ms Ellery is now seeking to pursue an unfair dismissal application, which was filed more than 11 weeks after she was dismissed. Inevitably, there will be some additional prejudice for her former employer if she is granted additional time in which to make application in that it will then be required to prepare to respond to the application. The passage of time that has elapsed might make this task more difficult.

(e) the merits of the application

[20] It is not possible to come to any realistic view about the merits of the application based on the limited submissions now before the Commission. As indicated, Ms Ellery submits the reasons given to her for her termination at the time she was dismissed might now be questionable. However, Sarina Russo submits this is not the case and her termination was a case of genuine redundancy, due to operational changes impacting on the business that resulted from changed contractual arrangements with the Federal Government. This meant, in particular, that it could no longer maintain a part-time employment consultant position in the Hastings office.

[21] As indicated, the limited submissions provided by the parties do not enable any serious consideration to be given to the respective merits of Ms Ellery’s unfair dismissal application. However, previous decisions of this Tribunal have concluded that the Commission is not required in proceedings of this kind to come to a concluded view about the respective merits of an application.

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

[22] Neither party made submissions suggesting this consideration was of any particular relevance in the context of the present matter.

Conclusion

[23] Ms Ellery submits the principal reason for her delay in making application concerns what she was told at the time of her dismissal, and what she later came to understand. She submits that at the time of her dismissal she was told she had been made redundant because of an operational restructure, in circumstances where she was not in a position at the time to take issue with what she had been told. It was only after the passage of time, and her subsequent attempts to gain employment elsewhere, that she became aware of circumstances that led her to question whether what she had been told about her termination, and why it occurred, was actually correct.

[24] It is acknowledged that in some instances an employer may try to mask the reason why a decision is taken to terminate an employee, although I am not satisfied this has necessarily occurred in the present matter. In such cases the actual reason may only come to light or be capable of being discovered with the passage of time. In some cases these circumstances might come within the realm of what might be considered to be “exceptional circumstances” that warrant an extension of time being granted in which to make application.

[25] However, Ms Ellery acknowledges she was “distressed and traumatised” when told about the decision to terminate her services. She was also upset that a part-time employment opportunity could not be maintained for her. These are entirely understandable reactions from someone who has just been dismissed without warning. However, it might also be expected that an employee in these circumstances would ordinarily be expected to pursue any remedy they might have in a timely fashion. Ms Ellery did not do this, but instead decided to take an extended break from the workforce.

[26] It is evident that in setting a standard time period in which to make application the Parliament intended in the normal course of events that an aggrieved employee would act expeditiously to make application, unless there were exceptional circumstances that provided a reason to extend that period. I am not satisfied that those circumstances exist in the present matter. Ms Ellery was distressed and upset about her dismissal at the time it occurred, and there is nothing that appears to have definitively stood in her way of her lodging an unfair dismissal application within the prescribed time period.

[27] In coming to a decision in this matter I have had regard to each of the matters in s.394(3) that I am required to take account of, as well as the evidence and submissions provided by the parties. I am not satisfied, in conclusion, that exceptional circumstances exist to warrant an exercise of the discretion to extend the time in which to make application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Ms Ellery appeared on her own behalf.

Mr David Ormesher and Ms Nancy Contoleon appeared on behalf of Sarina Russo Job Access.

Hearing details:

2016.

Melbourne and Brisbane (by telephone):

4 March.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Applicant’s Outline of Arguments at question 6.d

 3   [2011] FWAFB 975

 4   Ibid at para 13 to 15

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