Mrs Carrie Collett v Amcor Ltd

[2009] FWA 1237

[2009] FWA 1237

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Mrs Carrie Collett
v
Amcor Ltd
(U2009/10593)

COMMISSIONER CRIBB MELBOURNE, 1 DECEMBER 2009

Termination of employment –jurisdiction - extension of time.

[1] This matter concerns an application lodged by Mrs Carrie Collett (the applicant) in relation to the termination of her employment by Amcor Ltd (the respondent). Mrs Collett contends that the termination of employment was harsh, unjust or unreasonable (section 643(1)(a) of the Workplace Relations Act 1996 (the Act)) and that there was a an alleged contravention of s.659 of the Act. The termination of the applicant’s employment occurred on 27 February 2009 and the application was lodged on 21 July 2009. As the application has been lodged outside the 21 day time limit, contained in section 643(14) of the Act, it can only be accepted if Fair Work Australia (the Tribunal) extends the time period. The respondent objects to such an extension being granted.

[2] Section 647 of the Act allows extension of time applications to be dealt with without a hearing taking place and I have decided to deal with the extension of time application without a hearing. Accordingly, a letter was sent to each of the parties, on 8 September 2009, regarding the timeframe for the filing of written submissions in this matter. The applicant submitted documentation on 17 September 2009 and 5 October 2009. The respondent filed their material on 30 September 2009.

[3] This decision deals with whether or not an extension of time should be granted to the applicant.

SUBMISSIONS

APPLICANT

Acceptable explanation

[4] It was submitted on behalf of the applicant that there was an acceptable explanation for the delay in lodging her application. This centred on the applicant’s personal circumstances which included her husband’s workplace injury, the seeking of suitable alternative employment and the care of a young child.

[5] With respect to the applicant’s husband’s injury, this occurred on 23 February 2009, four days before the termination of her employment took effect. In the applicant’s submissions, it was indicated that her husband’s injury was the complete amputation of his right thumb. Further, his care involved hospital admissions, numerous medical and other appointments and reconstruction surgery. The applicant’s husband was said to have been heavily reliant on the applicant for his general care including showering and driving. He was also unable to assist in the care of their child.

[6] It was also stated that, during this time, the applicant and her husband “were concerned at the nature of the injury and occupied with deliberating and assessing the full extent of the injury.” 1

[7] In addition, it was submitted that the applicant commenced the process of finding alternative employment following the end of her employment. She commenced new employment on 10 March 2009 with the role requiring international travel and long hours. Given the applicant’s financial situation, it was stated that it was critical that the applicant secure new employment. 2

[8] In summary, it was argued that the “consuming” nature of the new role plus the full time care of her young child and her husband also “contributed to the delay” in the applicant lodging her application. 3

Disputing the termination

[9] It was submitted that the applicant:

• Expressed her unhappiness and that she did not believe the redundancy was genuine to the respondent.



• Wrote to the respondent on 8 May 2009 seeking to resolve the matter.



• On about 15 May 2009, was told that a male colleague with similar experience to the applicant, was appointed to a vacant position which the respondent had unilaterally decided that the applicant was not suited to.



• Understood that this appointment was made by the respondent only after it knew that the applicant was employed elsewhere. 4

Prejudice

[10] It was contended that the respondent had been on notice since February 2009 that the applicant was not content about her dismissal and that she had sought legal advice from early May 2009.

[11] The applicant submitted, therefore, that the respondent had not suffered any prejudice as a result of the late lodgement of her claim. 5

Merits

[12] It was argued that there was prima facie evidence of the substantive merits of the applicant’s claim. The applicant stated that she was made redundant without consultation and that there was a suitable vacant alternative position which was subsequently filled. The applicant contended that the redundancy was not genuine and that, of the nine member finance team, she was the only redundancy. 6

Fairness

In light of all of the circumstances regarding the applicant, the Tribunal was asked to exercise its discretion and accept the late application.

RESPONDENT

Acceptable explanation

[13] It was submitted on behalf of the respondent that the applicant had not provided an acceptable explanation for the delay. In addition, the respondent argued that the reasons given by the applicant did not cover the period between 13 May 2009 and the lodging of the application on 21 July 2009. It was stated that the applicant was advised on 13 May 2009 that the respondent would not reconsider its position on the redundancy. 7

[14] It was acknowledged that the respondent was aware of the applicant’s husband’s injury and young child. However, the applicant had advised the respondent that her husband had returned to his landscaping business within a few weeks. It was submitted that this could be taken as indicative of the severity of the injury and therefore the impact on the applicant. 8

[15] With respect to the impact of the applicant’s new job, it was contended that this was not a relevant consideration for the Tribunal. This was because it was at the applicant’s discretion to devote such time and effort. 9

Contested the termination

[16] It was acknowledged that the applicant was disappointed with her redundancy. However, it was the respondent’s contention that it was not until the applicant’s solicitor’s letter of 8 May 2009, that the applicant contested the redundancy.

[17] Moreover, the respondent submitted that they believed that the applicant accepted the redundancy. This was based on:

• The applicant did not request any meetings with management to discuss the issue (which was not consistent with her previous behaviour).



• The feedback from the outplacement counsellor did not include adverse comments from the applicant regarding her redundancy.



• A reference was requested by the applicant – and provided.



• The applicant did not exhibit any adverse behaviour during the notice period.



• The applicant accepted the redundancy package offered. 10

Prejudice

[18] The respondent was said to have been prejudiced by the delay in being notified of the applicant’s objections. This prevented the respondent from attempting to address her concerns prior to the termination or the new structure being embedded. 11

Merits

[19] The respondent submitted that the applicant’s dismissal was due to genuine operational reasons. It was stated that there had been a significant restructure of the business which resulted in the applicant’s position being made redundant and a new rationalized role created. The respondent indicated that the applicant was considered for the new role but it was given to a more suitably qualified person. Other options for re-deployment were actively sought but none found.

[20] Further, it was said that the applicant commenced work with a new employer within two weeks of her dismissal. The applicant had been paid 10.77 weeks severance pay on termination. 12

Fairness between the applicant and other persons

[21] The respondent was not aware of other persons in a like position to the applicant. If the Tribunal was to grant the extension of time application, it was said that this would provide the applicant with an opportunity that other employees had not been afforded. 13

CONCLUSIONS

[22] The principles to be applied by the Tribunal in considering whether to grant an extension of time application are those set out in Brodie Hanns v MTV Publishing [1995 67 IR 298] (Brodie Hanns). They are as follows:

“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

I now turn to those principles and apply them to the submissions that have been provided to the Tribunal.

Acceptable explanation for the delay

[23] It was the applicant’s submission that there were a number of reasons for the delay in lodging her application. These related to her personal circumstances and included her husband’s incapacitating work injury, the care of her husband and young child, the need to seek suitable alternative employment and the subsequent long hours and international travel in her new position.

[24] The respondent contended that an acceptable explanation had not been provided by the applicant. In addition, it was argued that the applicant’s submissions had not dealt with the period after 13 May 2009 when the applicant was advised that the respondent would not reconsider its position.

[25] I have considered carefully the submissions from both parties. Undoubtedly, the applicant’s personal circumstances after her dismissal were distressing, stressful and difficult. However, it is my view that they do not provide an acceptable explanation for a delay of five months (from her dismissal to the filing of the application). After her dismissal, the applicant was able to go through the process of finding alternative employment – which she started on 10 March 2009. This was within the 21 day timeframe for lodging an application. Further, the applicant was advised by the respondent on 13 May 2009 that it would not reconsider its position on the redundancy. Two days later, the applicant learnt of the appointment of a male colleague with similar experience to the vacant position. However, a further two months then elapsed before the applicant made an application.

[26] For all of these reasons, I find that there is no acceptable explanation for the delay in filing the application within time.

Action taken by employee to contest the termination

[27] It was submitted by the applicant that she had made it clear at the time she was notified that she did not believe it was a genuine redundancy and that she was unhappy. Further, the company had been written to on 8 May 2009 seeking to resolve the matter.

[28] The respondent acknowledged that the applicant was disappointed with her redundancy but argued that it was not until the solicitor’s letter of 8 May 2009 that it was aware that the applicant was contesting her dismissal.

[29] On the basis of the material before me, I am satisfied that the applicant contested the termination other than by lodging this application.

Prejudice to the respondent

[30] Having considered the parties’ submissions, I am not satisfied that the respondent would be prejudiced by extending time.

Merits of the application

[31] On the basis of the material before me, it is apparent that there is a conflict between the parties regarding whether the redundancy was genuine. Given this situation and the absence of sworn evidence, it is therefore not possible to say the application is without merit.

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

[32] On the evidence before me, it is not possible to reach a conclusion regarding this principle.

[33] Having considered all of the matters put to me by both parties, in light of the principles enunciated in the Brodie Hanns decision, I have concluded that I am not prepared to exercise my discretion so as to allow the filing of this application out of time.

[34] The application is therefore dismissed. An order to that effect will be issued separately.

COMMISSIONER

 1   Applicant’s Submissions, dated 17 September 2009 at p. 17

 2   Applicant’s Submissions in Reply, dated 5 October 2009 at p. 3

 3   Applicant’s Submissions, dated 17 September 2009 at pp 2-3

 4   Ibid at p.3 and Applicant’s Submissions in Reply, dated 5 October 2009 at p.2

 5   Applicant’s Submissions, dated 17 September 2009 at p. 3

 6   Applicant’s Submissions in Reply, dated 5 October 2009 at p. 3

 7   Respondent’s Submissions, dated 28 September 2009 at para 3 and 4

 8   Ibid at para 6(a)

 9   Ibid at para 6(b)

 10   Ibid at para 7

 11   Ibid at para 8

 12   Ibid at para 9

 13   Ibid at para 10

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