Ms Colleen Saporita v Regent Motors Pty Ltd

[2016] FWC 5086

[2016] FWC 5086

FAIR WORK COMMISSION

DECISION

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

Ms Colleen Saporita
v
Regent Motors Pty Ltd
(U2016/3070)

COMMISSIONER ROE MELBOURNE, 29 JULY 2016

Application for relief from unfair dismissal - extension of time.

[1] Ms Saporita was employed by Regent Motors from September 2015 until her dismissal for reasons of alleged redundancy on 28 April 2016. The dismissal took effect on that date. The application was received by the Fair Work Commission by email on 27 June 2016. The application was therefore received 39 days after the 21 days allowed under the legislation.

[2] Section 394 of the Fair Work Act 2009 (the Act) provides that I may allow a further period for the application if I am 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] Ms Saporita says that she only became aware that the employer had reinstated the manager, Mr Andre Van she had replaced when she was engaged by Regent Motors and this person has continued to operate the department since the day she left. When she was made redundant she says that she was told that the department she was managing would be closed. Regent Motors denies that Ms Saporita’s role has continued and says that the duties have been distributed amongst other existing employees. Regent Motors say that a number of other employees were also made redundant throughout Australia due to economic downturn. Regent Motors concedes that the anticipated restructuring process which could lead to the closure of the department has not been completed but submits that Ms Saporita’s job is no longer required and no one has been employed to replace her.

The reasons for delay

[4] Ms Saporita says that the reasons for the delay were:

● She only became aware in a conversation with a former work colleague that the reasons given by the employer for the termination were false some time after the dismissal. She lodged the application in the same week that she became aware that the restructure which she had been told was the reason for her termination had not occurred.
● She was unaware of the time limit for making an application.
● If she had known that she had 21 days to lodge her application then she would have ensured that she did so.

[5] The reasons given for the delay are contradictory. If the real reason for the delay is the belated discovery that the reasons for the termination were false, then Ms Saporita would not have made an application within 21 days even if she had been aware of the time limit. If the reason for delay is ignorance of the time limit then, in circumstances where there is no evidence that Ms Saporita is particularly handicapped from making an application or becoming aware of her rights, this cannot be the basis for a finding of exceptional circumstances. Ignorance of the law is not generally the basis for a finding of exceptional circumstance unless the employee is particularly or unusually disadvantaged.

[6] The employer denies that false information about the reasons for termination were given. The discovered evidence that the redundancy was a sham is weak. The fact that the department continues does not mean that the redundancy was a sham if the duties of the Applicant have been redistributed. Ms Saporita does not suggest that she discovered information that someone new and additional had been employed to exclusively perform the same role as she had previously performed. I accept that Ms Saporita has discovered that things have not been changed in the way she believed they were going to be based upon her understanding of the discussions at the time of the termination. However, I do not consider that Ms Saporita discovered information that demonstrated clearly that her position was not made redundant. Having heard evidence from both Ms Saporita and Mr Stewart for the company, I am satisfied that the job which was performed by Ms Saporita is largely being performed now by Mr Andre Van Helboort. These duties are additional to the training manager duties held by Mr Andre Van Helboort prior to Ms Saporita’s redundancy.

[7] I am not satisfied that the reasons for delay support a finding of exceptional circumstances.

The other factors

[8] It is not suggested that Ms Saporita became aware of the dismissal after it had taken effect. This is therefore a neutral factor in this case.

[9] Ms Saporita did nothing to dispute the dismissal between the time of the termination and the time of making the application. Given the period of delay is significant, I consider that this is a factor which stands against a finding of exceptional circumstances in this case.

[10] The application was 39 days late. This is a significant period. The employer is a large employer. I am not satisfied that there is any significant prejudice in this case. This is a neutral factor.

[11] The employer strongly denies that the redundancy was a sham. Ms Saporita does not have strong evidence that the redundancy is a sham. However, the material provided to date does not deal with any consultation or redeployment requirements which might exist. In circumstances where I have not had the benefit of all the evidence, I cannot conclude that the case is hopeless. This is a neutral factor.

[12] This case depends upon its own particular facts. I do not consider that my decision would be disharmonious with other decisions about related matters. I do not consider there is any issue of fairness as between the person and other persons in a similar position.

Conclusion

[13] Considering all of the factors in Section 394 leads me to conclude that there are no exceptional circumstances which justify an extension of time in this case. The application is dismissed.

COMMISSIONER

Appearances:

Ms C Saporita represented herself.

Mr M Bycroft and Mr D Stewart represented the Respondent.

Hearing details:

2016

Melbourne by video to Perth

July 21

Printed by authority of the Commonwealth Government Printer

<Price code A, PR583382>