Mrs Janet Rowley v RSL (Qld) War Veteran Homes Ltd T/A RSL Care

[2014] FWC 5326

[2014] FWC 5326

FAIR WORK COMMISSION

DECISION

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

Mrs Janet Rowley
v
RSL (QLD) War Veteran Homes Ltd T/A RSL Care
(U2014/9831)

COMMISSIONER SIMPSON BRISBANE, 12 AUGUST 2014

Jurisdictional Objection out of time - no exceptional circumstances - application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mrs Janet Rowley (“the Applicant”) who alleges that the termination of her employment with RSL (QLD) War Veteran Homes Ltd T/A RSL Care (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 6 June 2014. The Respondent filed a Form 3 Employer’s Response to Application for Unfair Dismissal Remedy making two jurisdictional objections, the first being that the Application was out of time as the dismissal took effect on 29 November 2013 and the Application was filed on 6 June 2014 making the Application 160 days out of time. The other objection was that the dismissal was a case of genuine redundancy.

[3] At the Directions hearing on Wednesday 16 July 2014 it was agreed by both the Applicant and the Respondent that upon material being filed in the event that neither party requested a hearing in regard to the extension of time application then the hearing scheduled for Monday 11 August 2014 could be set aside and the extension of time question dealt with on the papers. Correspondence was received by both parties confirming agreement to the matter being dealt with on the papers.

[4] The matter of legal representation was not addressed at the directions hearing. The Applicant has been assisted by Mr Geoff Ebert, a Solicitor at the firm Finemore Walters and Storey. I am content to deal with the out of time jurisdictional issue on the papers as agreed and do so on the basis that the Applicant has been assisted by Mr Ebert as it enables the matter to be dealt with more efficiently taking into account its complexity, and that it would be unfair not to allow the Applicant to be represented given the Respondents size and in-house industrial expertise.

Summary of Submissions for the Applicant - Extension of Time

[5] The Applicant submits that the extension of time for the filing of the Unfair Dismissal Application should be granted under section 394 (3) of the Fair Work Act 2009 on the following basis:

a. The Applicant only became aware of evidence post the time limit for filing the required Application which supported the bringing of the application;

b. The Applicant was misled as to the redeployment opportunities during the consultation period;

c. The knowledge and evidence which the Applicant gained post redundancy poses strong merits in the way that this was not a case of a genuine redundancy or redundancy consultation in a manner which failed to comply with the RSL Care Enterprise Agreement;

d. The grant for extension of time would not cause prejudice against the Respondent;

e. Allowing such Application would not be unfair to other parties in a similar position (noting the unique employment status of the Applicant as the only Full Time Enrolled Nurse).

[6] The Applicant cited the decision in BananaCoast Credit Union Limited v Cross and others 1as authority supporting its case.

Summary of Submissions for the Respondent - Extension of Time

[7] It is submitted for the Respondent that the reasons advanced by Ms Rowley for the delay in making her unfair dismissal remedy application do not amount to ‘exceptional circumstances’ as it is known and understood.

[8] The Respondent summarised those reasons as put by Ms Rowley as firstly, in May 2014 becoming aware of two emails dated 15 April 2014 and 9 May 2014 which she believed indicates that she was misled by RSL Care as to her redundancy. That is, her redundancy was not genuine because RSL Care appointed a casual EN on 3 April 2014 and a part time EN on 14 May 2014;

[9] Secondly, Ms Rowley believed that the emails dated 15 April 2014 and 9 May 2014 show that implementation of the RN model of care did not occur and therefore the representations leading up to her redundancy in December 2013 were untruthful and/or misleading.

[10] Finally, information subsequently disclosed after the filing of the Application (that is, the rosters from December 2013 to May 2014), evidences that a full time position still exists (or should exist).

[11] The Respondent submits that the facts which are the subject of the decision of BananaCoast Credit Union Limited v Cross and others relied upon by the Applicant in her submissions and also the first instance decision of Cross and others v Bananacoast Community Credit Union T/A BCU  2 should be distinguished from the facts of the current matter.

[12] The Respondent said that in Cross and others v BananaCoast, within one month of their redundancies, the Applicants became aware of new information that the company had employed a number of people in the same (or substantially similar) roles to which the former employees had been employed. The Applicants had been subjected to a three day consultation process and they had been advised that there were no redeployment opportunities. Upon becoming aware of this information, an application was filed 11 days out of time.

[13] The Respondent submit that the facts that gave rise to the decision in Cross and others v BananaCoast which support an inference of ‘exceptional circumstances’ based on new information do not exist in the Ms Rowley’s case. In particular, in view of the ‘new information’ to which Ms Rowley became aware, it is submitted that there is no prima facie case to support a reasonable suspicion on the part of the Applicant that her redundancy was not genuine.

[14] The Respondent further submits that the new information contained in the emails dated 15 April 2014 and 9 May 2014 referred to regarding the appointment of a casual Enrolled Nurse on 3 April 2014 and a part time Enrolled Nurse on 14 May 2014 does not meet the threshold of being “exceptional circumstances”.

[15] The Respondent argues that the new information does not amount to any substantial information on which a reasonable inference can be drawn to support a view that Ms Rowley’s redundancy from her full time role was not genuine.

[16] It is submitted that the engagement of a casual EN and/or a part time EN (whom was employed to replace another part time EN who had recently resigned in May 2014), is not indicative of the existence (or even equivalence) to a full time position. Casual and part time roles, by their very nature, are not full time.

[17] The Respondent further highlights that the circumstances relied upon by the Applicant occurred at least four months after the redundancy of the Applicant, and the engagements were made in response to unforeseen circumstances which impacted the resourcing of the facility.

[18] The Respondent relies on the statement of Ms Adele Wilkinson to confirm that the RN model of care has been implemented with seven EN’s made redundant in November 2013 and five RN’s recruited since December 2013.

[19] In reference to the rosters produced, the Respondent rejected the Applicants submission that the rosters evidenced hours on a “full-time or near full time basis”. The Respondent repeated that the rosters did not disclose a full time role as the Applicant was employed.

CONSIDERATION

[20] Section 394 of the Act reads as follows:

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.

[21] The principle reasons given for the delay relied upon by the Applicant is she was misled at the time of her termination about her redundancy and subsequent information gained post the redundancy points to the redundancy not being genuine. Having considered the material put before me I am inclined to accept the Respondents submission that the new material that has come into the knowledge of the Applicant well outside the statutory timeframe for filing an unfair dismissal application is not substantial information on which a reasonable inference could be drawn to support a view that the Applicants redundancy was not genuine. On that basis I conclude the reason given for the delay is not an exceptional circumstance.

[22] It seems clear the Applicant was aware of her termination as at 6 December 2013. Subsection 394(c) appears to provide no particular assistance to the Applicant. As it is some 8 months time since the termination there may be some prejudice arising for the employer in defending the claim given the passage of time however this is not a significant factor in determining the extension of time matter.

[23] I intend to regard the question of the merits as neutral. On the second jurisdictional matter there are a number of elements in s.389 of the Act that must be satisfied in order to establish a genuine redundancy. I am not persuaded on the available material a strong prima facie case has been made out by the Applicant that the redundancy was not genuine. Sub section 394(3)(f) has no particular relevance in this matter.

[24] Having considered all the matters required under the Act I am not satisfied there are exceptional circumstances justifying an extension of time, in this case some 160 days, and on that basis the application is dismissed.

COMMISSIONER

 1   [2012] FWAFB (4 December 2012)

 2   [2012] FWA 7681 (20 September 2012)

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