Mrs Corrie Lourens v Regional Express Holdings Limited

[2014] FWC 4175

[2014] FWC 4175

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mrs Corrie Lourens
v
Regional Express Holdings Limited
(U2014/6641)

COMMISSIONER WILSON MELBOURNE, 1 JULY 2014

Application for relief from unfair dismissal.

[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 12 June 2014.

[2] Ms Corrie Lourens has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Lourens’ application relates to the termination of her employment by Regional Express Holdings Ltd (Regional Express). Her application is date stamped by the Commission as having been received on 17 April 2014.

[3] Regional Express argues the application is out of time and the circumstances of the matter are such that an extension of time should not be granted. On the other hand, Ms Lourens seeks such an extension of time.

[4] For the reasons I am about to refer to, I am prepared to grant an extension of time and I am satisfied that there are exceptional circumstances, taking into account the criteria which is set out within section 394(3) of the Act.

[5] In my consideration, I have taken into account a number of factual circumstances which are disclosed in the material provided by the parties, both in their applications, the outline of submissions and a witness statement of Mr Beard of the Australian Workers’ Union (AWU). The matter is somewhat unusual, in that the applicant herself did not give evidence in the proceedings and the reasons for which it is said that there are exceptional circumstances is the representative error on the part of the applicant's union. In any event, I am prepared to accept the evidence and other material that has been put forward in the hearing and will rely upon that in my decision.

Background

[6] The date upon which Ms Lourens commenced her employment was 3 August 2010. The applicant's submissions indicate that she was employed for a period of three years and seven months. The duties that she performed with Regional Express involved working full-time as a purchasing officer in the maintenance division of operations at the Wagga Wagga Airport, and the circumstances of Ms Lourens' termination of employment are set out within the respondent's outline of submissions. 1 Relevantly, Regional Express asserts that Ms Lourens was terminated by reason of genuine redundancy.

[7] The respondent’s outline of submissions refers to Ms Lourens being provided with full details in regard to the nature of the change in its operations. 2 Specifically, it was submitted that Ms Lourens was informed that the department in which she worked was being restructured, and the duties reorganised within that department. At the time of termination, the respondent’s outline of submissions refer to Ms Lourens having been informed that there had been other redundancies within the company. She was also told, in a meeting on 24 March, that the position recently vacated by one of her colleagues would not be replaced and neither would the applicant's.

[8] The application made by Ms Lourens contains a letter provided to her in the meeting on 24 March 2014, entitled ‘Notice of Redundancy’. The letter states, relevantly, that:

“...given the current economic aviation climate, the Company is reviewing its operation to determine the best operating structure going forward and as a result it has been decided that reorganisation of the purchasing department is necessary”.

[9] The letter continues that Ms Lourens' position is no longer required and that her employment would cease effective on that date, Monday 24 March 2014, due to redundancy. The correspondence also indicates that having been made redundant, Ms Lourens would be paid four weeks' wages in lieu of notice, which includes one additional week provided to her since she is over 45 years of age in accordance with the National Employment Standards.

[10] For the purposes of section 394 of the Act, I record that the date upon which Ms Lourens' dismissal was notified to her was 24 March 2014, which is the same day that the dismissal took effect. Ms Lourens filed her application for unfair dismissal, through the AWU, in the Commission on Thursday, 17 April 2014.

[11] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. The 21 days for lodgement does not include the date that the dismissal took effect 3. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day4. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.

[12] As I have indicated, I find that the termination took effect on 24 March 2014. By my calculations, therefore, an application for unfair dismissal should have been made no later than Monday, 14 April 2014, which would be within the 21 days after the termination took effect. I note in this regard that the Act's reference to a period of 21 days being allowed for the making of an application does not include the date that the dismissal took effect. I therefore count from Tuesday, 25 March 2014, and note that the final day, the 21st day, for the filing of an application was Monday, 14 April 2014. On my calculation, therefore, the application is three days out of time.

Legislative scheme

[13] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:

“ 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”.

[14] The capacity of the Commission to extend the time for making an unfair dismissal application is set out in within section 394 of the Act. The Act provides a discretion for extension of time for making an application where I am satisfied that there are exceptional circumstances taking into account the six criteria which are set out within section 394(3).

[15] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.  5

Consideration

[16] In considering whether I am satisfied there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, I turn to consider each of the criteria set out in subsection 394(3) of the Act.

1. The reason for the delay

[17] The sole reason for the delay is put forward by Mr Beard in the applicant’s outline of submissions, 6 and also within Mr Beard’s statutory declaration,7 as being due to representative error on Mr Beard’s part. I acknowledge Mr Beard’s candor in putting that forward and accept the reasons that he sets out within the statutory declaration. The declaration indicates effectively that Mr Beard miscounted the number of days between the time that the application had been made and the date by which the application needed to have been made in order to be compliant with section 394 of the Act.

[18] Mr Beard's statutory declaration indicates that he was not aware of the mistake until he was notified as such by the Commission on 20 May 2014. He does not put forward any other reasons and I accept those to be the reasons for the delay, together with what he said in the course of submissions in the hearing, which indicated the pressures of his office meant that the matter was not given earlier attention.

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

[19] For the reason that Ms Lourens was dismissed on 24 March and she became aware of the dismissal on the same day, I do not need to give further consideration to this criterion.

3. Any action taken by the person to dispute the dismissal

[20] I do not need to give detailed consideration to this criterion beyond the information which is contained within the applicant’s outline of submissions and Mr Beard's statutory declaration. Within these documents it makes clear that Ms Lourens contacted the AWU organiser, Mr Terry O'Connor, shortly after her dismissal. On 28 March 2014, which was the Friday in the same week that she was dismissed, Mr O'Connor forwarded a request to contest the dismissal, by email, to Mr Beard at the AWU office in Granville. I accept that this was the only action taken by Ms Lourens to dispute the dismissal and, within the context of this matter, I am satisfied that it was sufficient action by her to dispute her dismissal.

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

[21] I note that Regional Express has not put forward any specific prejudice beyond the obvious prejudice in the event that the application for an extension of time were to be granted. I also take into account that the time period of three days is, in and of itself, not sufficient to create additional prejudice to the employer if the extension of time were to be granted.

5. The merits of the application

[22] In respect of the merits of the application, I note that the application is put forward on the basis that there has been a failure on the part of Regional Express to satisfy the obligations it might have in considering whether there could be possible redeployment of Ms Lourens to some other position within Regional Express' business. I do not have sufficient evidence before me at this stage to be able to determine the extent to which those merits are likely to be satisfied.

[23] However, I note that there is sufficient authority on the part of the Commission to indicate that it is relevant to give considerable consideration to redeployment in reconciling whether a person has been unfairly dismissed or not. Plainly, if the matter were to proceed, the issue of whether or not a redeployment could have been provided to Ms Lourens will become a matter of important factual consideration and it may well be that it is possible to demonstrate that she should have been considered for redeployment to another position.

[24] I also note the finding of the Full Bench of the Commission in respect of Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates. 8 The Bench in that matter was Lawler VP, Richards SDP and Blair C. In the course of consideration of that appeal, the bench referred to considerations attaching to arguments that an employer has dismissed a person for reasons of genuine redundancy. The Bench said the following, which I take into account:

“[36] In that statutory context, section 389(1)(b) evinces a legislative intent to ensure that statutory consultation rights are upheld in cases where an employer decides that there are genuine operational reasons to make an employee or employees redundant. The existence of genuine operational reasons justifying the redundancy is not enough. The employer must also comply with consultation obligations imposed by an award of enterprise agreement before a termination based on those operational requirements can be a case of genuine redundancy for the purposes of the Act, and section 385(d) in particular.

[37] A finding that in accordance with section 389(1)(b) is a jurisdictional prerequisite to a finding that a dismissal was a case of genuine redundancy (compare Edwards v Giudice (1999) 169 ALR 89). The Commission has no jurisdiction to dismiss an unfair dismissal application on the basis that the case is a case of genuine redundancy unless there is a finding that the requirement in section 389(1)(b) has been satisfied. An admission that the requirements of section 389 had been met is a sufficient basis to make a finding that that the matter was not a case of genuine redundancy.”

[25] Relevantly, section 389(1)(b) of the Act refers to the meaning of ‘genuine redundancy’ and provides that a dismissal is a case of genuine redundancy if:

“(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.”

[26] In the course of submissions this morning, the parties have not identified to me that there is an enterprise agreement which applies to Ms Lourens' employment and there is some doubt as to whether or not there might be a modern award that applies to her employment. Notwithstanding those submissions on the part of both parties, I take into account that Ms Lourens' duties were of an administrative nature within the purchasing department of Regional Express. As a result, it is possible - but I do not find - that there is a modern award which applies to her. If the matter proceeds, then that will clearly be something which needs to be considered in some detail and will go to the question of whether or not there has been a dismissal which, in all the circumstances, is a genuine redundancy.

[27] As a result of that consideration, I consider that the merits of Ms Lourens' application are at least arguable and possibly higher, and I form that view as a result of the submission put forward by Mr Beard to the effect that the company may have failed to have considered the redeployment of Ms Lourens into alternative positions. I also take into account the factors that I've referred to in respect of considering whether or not the employer might have complied with any obligation it might have in a modern award or enterprise agreement to consult about the redundancy.

6. Fairness as between the person and other persons in a like position

[28] The consideration in this regard in granting an extension of time is whether that might be fair to other unfair dismissal applicants who might not receive an extension of time to their applications. The consideration I do give in that regard is that the applicant puts forward, through her representative, that there was no fault on her part in the delay in making the application and that the fault, if that is what it is, rests entirely with her representative.

[29] The AWU in its submissions put forward, in relation to the question of representative error, a reference to a number of cases which have dealt previously with the question of representative error, and in particular it referred to the following paragraph of the appeal decision in Robinson v Interstate Transport Pty Ltd 9:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act”. (references omitted).

[30] I note the reference to Clark v Ringwood Private Hospital 10 and also comment that there is a summary of Clark in the Full Bench matter of McConnell v A & PM Fornataro (t/as Tony's Plumbing Service),11 a decision of Lawler VP, O'Callaghan SDP and Bissett C. In McConnell, the Full bench commented that:

“[35] Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted”.” (references omitted)

[31] In coming back to section 394(3)(f) of the Act, the criteria being fairness as between the person and other persons in a similar position, I consider that reference to those authorities would indicate that there would be some level of unfairness if I were to refuse an application to extend time to Ms Lourens. This is because in similar cases, if there had been some merit at some level to an application and it was demonstrated that the reason for delay was due representative error on the part of an applicant's representative, and there were no other reasons to suggest that the application for extension should be refused, then ordinarily it would be extended.

Decision

[32] For these reasons, I am satisfied there are exceptional circumstances in the manner envisaged by s.394(3) of the Act for the grant of a further period to Ms Lourens for the making of an application for an unfair dismissal remedy.

[33] An Order extending the period of time in which Ms Lourens may make her application is issued with this decision.

COMMISSIONER

Appearances:

Mr G Beard (AWU) for the Applicant

Ms L Westblade for the Respondent

Hearing details:

2014.

Melbourne:

12 June

 1   Exhibit R1, item 12

 2   Ibid

 3   Acts Interpretation Act 1901 (Cth), s.36(1)

 4   Ibid., s.36(2); see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593

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

 6   Exhibit A2

 7   Exhibit A3

 8   [2014] FWCFB 1276

 9   [2011] FWAFB 2728

 10 (1997) 74 IR 413

 11   [2011] FWAFB 466

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