Mrs Melanie Spry v Compass Pools Australia Pty Ltd

[2014] FWC 3936

[2014] FWC 3936

The attached document replaces the document previously issued with the above code on 16 June 2014.

1. Inserted the Fair Work Commission logo at the top of the Decision.

2. Corrected the date of issue to 16 June 2014.

3. All references to Ms Spry have been corrected to Mrs Spry.

ANGELA DELO

Associate to Commissioner Booth

Dated: 16 July 2014.

[2014] FWC 3936

FAIR WORK COMMISSION

DECISION

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

Mrs Melanie Spry
v
Compass Pools Australia Pty Ltd
(U2014/57)

COMMISSIONER BOOTH BRISBANE, 16 JUNE 2014

Termination of employment - extension of time and genuine redundancy.

[1] Mrs Melanie Spry (Mrs Spry) filed for unfair dismissal relief on 7 January 2014 after her employment with Compass Pools Australia Pty Ltd (Compass Pools) as Chief Compliance Officer ceased on 13 September 2013.

[2] Compass Pools objects to the application as being lodged after the 21 day time period allowed under s.394(2)(a) of the Fair Work Act 2009 (the Act). The application was 95 days outside the time allowed. Mrs Spry accepts her application was lodged out of time but says there are exceptional circumstances warranting the Fair Work Commission’s (the Commission) exercising its discretion to allow a further period under s.394(3).

[3] Compass Pools also objected to the application on the grounds that the termination was a genuine redundancy.

[4] Under s.396 of the Act, the Commission must decide certain matters before considering the merits of an unfair dismissal application. Both jurisdictional objections raised by Compass Pools are listed in that section.

[5] The parties consented to the out of time question being dealt with on the papers as a preliminary issue.

Evidence

[6] Mrs Spry provided a very detailed application, submissions and submissions in reply on the out of time question, and evidence in the form of two affidavits made by her and another by her husband, Mr Benjamin Bristow. Mrs Spry also engaged in email exchanges with my Associate and the Commission’s Unfair Dismissal Team. Some of these emails were detailed and in the nature of submissions. All emails were provided to the Respondent’s legal representative.

[7] Compass Pools filed a response to the application, and made submissions and submissions in reply on the time question and filed two witness statements of Mr Ian Mewett and one of Mrs Kerri Mewett, Directors of Compass Pools.

[8] Both parties were represented by solicitors.

Applicant’s evidence and submissions

[9] Mrs Spry submits that she was absent from work on workers’ compensation from 19 July 2013. She says she received an email on Friday 6 September 2013 inviting her to respond by 5pm the following Tuesday to a possible redundancy after a decision made by Compass Pools to close its Yatala manufacturing plant. She responded twice on the same day by disputing the genuineness of the prospective redundancy and questioning the process used by Compass Pools.

[10] Mr Mewett emailed again that day inviting Mrs Spry to a further, in-person consultation, and restating the genuineness of the closure and consequent need to reduce the size and scope of the workforce. Further email and text message exchanges took place in which Mrs Spry disputed the calculations of her redundancy entitlement and leave balances.

[11] Mrs Spry also details her work and medical history and her emotional response to the events around her work both leading up to her termination and following. She provided copies of medical certificates from her general practitioner, psychiatrist and Workers’ Compensation doctors covering the period from June 2013 to January 2014.

[12] She says the reason for the delay in making an application was incapacity due to illness. She says this was caused by her treatment at work and, later, the circumstances of her termination, combined with inadequate and constantly changing medical supervision, inappropriate medication causing severe symptoms, and surgery. She says she started to write her application on 4 December 2013 but was under a misapprehension about the nature of the application and did not know there was a form available. 1

[13] She submits that she disputed the dismissal and provided email and text message evidence to that effect, and argues that there is no prejudice to Compass Pools.

[14] Mr Bristow’s evidence is that his wife was not coping well, and that he provided extensive support to her in compiling her workcover applications. He says she was not fully in control of her senses and not capable of attending to the application in a timely way. His evidence is generally corroborative of that of his wife.

[15] In addition to the matters canvassed above, Mrs Spry’s solicitors made submissions about:-

• the merit of the application on the basis of the limited time allowed to respond to Compass Pools’ call for consideration of redundancy;

• matters relating to Mrs Spry’s previous discussions with Compass Pools about the future of the Yatala manufacturing enterprise and her expectations arising from those discussions;

• alleged inconsistencies in Mr Mewett’s emails of 6 and 8 September;

• suggestions that manufacturing continued at Yatala until at least January 2014; and

• what was said to be downplaying of Mrs Spry’s role with Compass Pools.

[16] As to fairness, the solicitors say Mrs Spry’s illness meant she was not treated fairly compared to other employees.

Respondent’s evidence and submissions

[17] Mr Mewett’s evidence included a copy of a general notice to Yatala staff dated 6 September 2013 detailing the reasons for ceasing manufacturing, and an email that day to Mrs Spry attaching a copy of the notice. Mr Mewett’s statement in reply says that manufacturing ceased at Yatala on 10 January 2014, with production having been scaled back from September 2013. He says a total of 9 employees were made redundant. All production was moved to a site in New South Wales. The Yatala site was used from September 2013 for distribution, storage and repairs, and on 6 February 2014, Mr Mewett advised the local authority’s Environmental Health Officer that the plant had ceased operation.

[18] Mrs Mewett attached to her statement copies of email correspondence from Mrs Spry and details of the Workcover claim.

[19] Compass Pools’ solicitors argued that the stated reasons for the delay do not stand with Mrs Spry’s active pursuit of Workcover remedies over the period between the termination and the application being lodged, and her emails show contemplation of her rights for unfair dismissal remedy under the Act (although not at all times of the 21 day time limit), and communication with her legal advisors on those remedies. 2 They also argue the claim cannot be meritorious given that the termination was a redundancy and suggest the application might be dismissed under s.587(1(b).3

Exceptional circumstances

[20] Unless the Commission finds there are exceptional circumstances, and in its discretion allows a further period, there is no valid application to be considered. The six factors listed in s.394(3) are highly prescriptive and are the only power the Commission has to extend time. See Mihajlovic v Lifeline Macarthur 4.

[21] Nulty v Blue Star Group Pty Ltd 5 extensively canvassed the meaning of “exceptional circumstances” for s.394(3), concluding:

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.

[22] The circumstances that Mrs Spry says amount to exceptional circumstances include:

• psychiatric illness;

• surgery;

• being on inappropriate medication;

• variable medical support;

• the stress of her Workcover claim and the termination of the employment relationship;

• relocating her place of residence.

• poor access to information about her entitlements and the decision making about the closure of the Yatala facility.

[23] She exhibits medical certificates purporting to cover her from the date of dismissal to the date of application, but as Compass Pools’ solicitors submit some of that medical evidence does not support her contention. 6

394(3)(a) Reasons for delay

[24] Mrs Spry’s submissions included a number of factors that she says made it difficult for her to make application in time. They are summarised above. Shock and trauma at being dismissed is not exceptional circumstances (Rose v BMD Constructions Pty Ltd 7), and even illness requiring hospitalisation for part of the period is not exceptional (Muir McMeeken v Action Industrial Catering Pty Ltd8). Compass Pools also drew the Commission’s attention to recent single member decisions dismissing applications as out of time where the applicant was incapacitated.

[25] She herself says she was writing the application by 4 December 2013, yet did not lodge until 40 days later. That 40 day delay is not explained satisfactorily by Mrs Spry.

[26] Mrs Spry no doubt faced considerable emotional difficulties, demonstrated by the emails in evidence. However the reasons for delay are not exceptional circumstances in the special sense used in the Act.

394(3)(b) When applicant became aware of dismissal

[27] There is no dispute that Mrs Spry was aware of the dismissal on the day it took effect, 13 September 2013. This factor is neutral.

394(3)(c) Action taken to dispute the dismissal

[28] Mrs Spry adduced evidence in the form of cogent and detailed emails and text messages disputing both the genuineness of the claimed redundancy and the calculation of her entitlements. Compass Pools refutes that this amounts to a genuine dispute, citing numerous attempts by it to engage with Mrs Spry on the redundancy. However, the attempts, while genuine, confirm Mrs Spry’s assertion: she disputed the genuineness of the redundancy. However, she did not take any further steps to dispute the dismissal, rather focussing on the redundancy, her entitlements and associated issues.

[29] This factor in my opinion weighs marginally against additional time.

394(3)(d) Prejudice to the employer

[30] Mrs Spry asserts there is no prejudice with little additional elaboration. Compass Pools merely submits prejudice will arise because of the need to argue a case. That does not amount to prejudice in this instance.

[31] In my view the following factors tend to show prejudice:

• manufacturing has ceased at the Yatala site;

• redundancy and redeployment decisions were made before the application was lodged;

• witnesses previously employed by Compass Pools may be difficult to contact.

[32] Balanced against this, Compass Pools’ relevant records should still be accessible, the key witnesses are the two Directors who remain active in the company, and Compass Pools remains trading actively.

[33] This factor is neutral.

394(3)(e) Merits

[34] Both parties’ main argument on merits related to the genuineness of the redundancy. That fact could only be properly considered if additional time is given. Accordingly, in fairness to both parties this factor is treated as neutral.

394(3)(f) Fairness

[35] Mrs Spry says her illness meant she was treated differently from other employees, whereas Compass Pools says it made real attempts to communicate with her about the redundancy, mindful that she was not at work and ill. I find that Mr Mewett did make genuine attempts to engage with Mrs Spry, but that this factor is on the whole neutral.

Consideration

[36] The major consideration is whether Mrs Spry’s explanation for the delay in lodging her application established exceptional circumstances.

[37] For the reasons stated above, exceptional circumstances are not established. The application must be dismissed. An order will issue to that effect.

COMMISSIONER

 1   Affidavit of Melanie Spry dated 6 May 2014 paragraph 63

 2   Respondent’s Submissions paragraph 29, and Submissions in Reply paragraphs 15-21

 3   Respondent’s submissions paragraph 43

 4   [2014] FWCFB 1070 at paragraph [16]

 5   [2011] FWAFB 975 at paragraph [13]

 6   Submissions in Reply paragraphs 12-13

 7   [2011] FWA 673

 8   [2012] FWAFB 5933

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