Mrs Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)

[2014] FWC 10681

[2014] FWC 9288

The attached document replaces the document previously issued with the above code on 23 December 2014.

An amendment has been made to the second last sentence of paragraph [5].

An amendment has been made to the last sentence of paragraph [10].

Associate to Deputy President Asbury

Dated 5 January 2015

[2014] FWC 9288 [Note: An appeal pursuant to s.604 (C2015/7) was lodged against this decision - refer to Full Bench decision dated 24 March 2015 [[2015] FWCFB 1257] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mrs Renee Gutzeit
v
Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)
(U2014/10681)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 DECEMBER 2014

Application for relief from unfair dismissal - Jurisdiction - Extension of time.

[1] Mrs Renee Leigh Gutzeitapplies for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) with respect to the termination of her employment by Liquorland (Qld) Pty Ltd trading as Spirit Hotels Liquorland (South East Queensland). Mrs Gutzeit states in her Form F2 Application for an unfair dismissal remedy that she was notified of her dismissal on 13 June 2014 and that it took effect on that date. The application was made on 8 July 2014.

[2] By virtue of s.394(2) of the Act 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 under s.394(3). Mrs Gutzeit’s application was made four days outside the time required in s.394(2). It is necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mrs Gutzeit to make her application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. The parties did not request cross-examination of persons who provided statements. For reasons which will be apparent, it is not necessary to hold a hearing for this purpose and I have determined the matter on the basis of the material on the file.

[6] The reason given by Mrs Gutzeit for the delay in making her application is that she alleges that Liquorland (Qld) Pty Ltd was not clear to her about when the dismissal took effect. According to her statement, Mrs Gutzeit attended a disciplinary meeting with Liquorland on 13 June 2014. At that meeting, Mrs Gutzeit was notified that her employment was to be terminated. Mrs Gutzeit contends that Liquorland was not clear to her about whether she would be required for any further shifts and states that she believed that the proper termination date would be confirmed by the human resources department of Liquorland. Ms Gutzeit stated that she was very distressed throughout the course of the meeting.

[7] Mrs Gutzeit also states that she made enquiries with the Administration Officer on 26 June, 1 July, 16 July and 22 July and received an Employment Separation Certificate on 22 July 2014 indicating that the date her employment ceased was 25 June 2014. Ms Gutzeit points to the fact that the employment separation certificate indicates that she was dismissed with notice. Ms Gutzeit contends that when she received the employment separation certificate she believed that she had 21 days from the date of dismissal indicated in the certificate in which to make her application. Ms Gutzeit also asserts that her dismissal took effect on 25 June 2014 as stated in the Employment Separation Certificate. Further, Ms Gutzeit states that if her dismissal was effective on 13 June 2014, her application was made only four days (two working days) outside the time required.

[8] In relation to merit, Ms Gutzeit states that she was called into a disciplinary meeting on 13 June. Prior to that meeting, Ms Gutzeit raised a number of concerns with regard to operational matters, security, safety and workplace culture. Ms Gutzeit asserts that she had less than 24 hours notice of the meeting and was either misinformed or mislead with respect to the nature of and purpose of the meeting. As a result, Mr Gutzeit states that she was denied the opportunity to have a support person present at the meeting. Mrs Gutzeit also contends that there would be no prejudice to the employer if a further period in which to make her application was granted as the application was only filed four days outside the requisite timeframe.

[9] Liquorland (Qld) Pty Ltd submits that Ms Gutzeit has not demonstrated the existence of exceptional circumstances as required by the Act. Liquorland refutes that claim made by Ms Gutzeit that she was not aware of the date of her dismissal. It is contended that Ms Gutzeit was informed at the meeting of 13 June 2014 that the decision had been made to terminate her employment, effective immediately. In this regard, Liquorland refers to a document entitled Record of Conversation that was completed and provided to Mrs Gutzeit. Part C of Section 5 of the Record of Conversation is entitled ‘termination of employment’ and a tick box that indicates that the outcome of the conversation is termination of employment.

[10] Liquorland also submits that Ms Gutzeit was escorted from its premises and was required to return items such as her keys and uniforms. Liquorland concedes an administrative error in payroll which resulted in delayed processing of final payments for over two weeks and that the Employment Separation Certificate contains an incorrect date.

[11] I am not satisfied in the circumstances of this case that there are exceptional circumstances so that the discretion to allow Ms Gutzeit an additional period to file her application should be exercised. The check box being ticked on the Record of Conversation on 13 June 2014 indicates that Ms Gutzeit’s employment has been terminated. It is also the case that Ms Gutzeit was escorted from the premises and required to return keys and uniforms.

[12] Neither party tendered a copy of the Employment Separation Certificate. However, I accept that it contained an incorrect date. I also accept that because of administrative error there was a delay in paying Ms Gutzeit’s entitlements on termination. However, the incorrect date on the Employment Separation Certificate and the administrative error that lead to delays in paying Ms Gutzeit could not have impacted on the timing of filing her unfair dismissal application.

[13] Ms Gurtzeit filed her application on 8 July 2014 but on her own evidence did not receive the incorrect Employment Separation Certificate until 22 July 2014. Although an incorrect date on such a document is unfortunate, and could be misleading in respect of when a particular dismissal took effect, in circumstances where Ms Gutzeit had already filed her unfair dismissal application, the incorrect date is not a basis for asserting lack of clarity about this matter for the purposes of determining whether the discretion to extend time should be exercised.

[14] I am also of the view, based on the submissions provided by Mrs Gutzeit and Liquorland, that it must have been reasonably apparent to Ms Gutzeit that her employment had ceased at the conclusion of the disciplinary meeting. While there is no prejudice to Liquorland other than the fact that it will be required to defend the application, mere lack of prejudice is not of itself sufficient to justify an extension of time. In relation to merit, the background facts to the dismissal are in dispute and can only be resolved through a hearing at which evidence is considered. Merit is not a consideration that over-rides the other criteria in this case.

[15] In circumstances where Ms Gutzeit has not established that there are exceptional circumstances in relation to the delay in making her application, it would be unfair to other employees in similar circumstances who have been refused an extension of time, if Ms Gutzeit was granted an extension.

[16] For these reasons, I am not satisfied that the discretion to allow a further period for Mrs Gutzeit’s application to be made should be exercised. Ms Gutzeit’s application for an unfair dismissal remedy in U2014/10681 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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