Ms Eva Johansson v Avcom Pty Ltd T/A Avcom Staging
[2013] FWC 4159
•27 JUNE 2013
[2013] FWC 4159 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Eva Johansson
v
Avcom Pty Ltd T/A Avcom Staging
(U2013/7279)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 27 JUNE 2013 |
Summary: unfair dismissal remedy s.394 - extension of time - mental health - no exceptional circumstances - application dismissed.
[1] This matter arose from an application by Ms Eva Johansson (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) through which she sought an unfair dismissal remedy as a consequence of her dismissal by Avcom Pty Ltd T/A Avcom Staging (“the Employer”). Over the course of her employment the Applicant performed duties of a wide ranging administrative kind for the Employer. The Employer claimed that the dismissal was for reasons of a redundancy owing to a downturn in work.
[2] The Employer has objected to the application because the application was made to the Fair Work Commission (“the Commission”) on 7 March 2013, whereas the date the dismissal took effect was 29 November 2012. The application was therefore made more than three months after the dismissal took effect, and therefore beyond the 14 days stipulated at s.394(2)(a) of the Act (as it was at the time of the dismissal).
[3] There is no contest between the parties in regards to the relevant chronology.
[4] Both parties sought to be heard in relation to this matter and as a consequence a hearing was conducted on 25 June 2013.
Legislative provisions
[5] Section 394 of the Act (as it was at the time of the dismissal) relevantly provides as follows:
[...]
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
Consideration
[6] The Applicant’s evidence in relation to the various matters set out at s.394(3) of the Act is as follows.
(a) the reason for the delay
[7] Several weeks before the Applicant’s dismissal took effect, she made an application to Workplace Health and Safety Queensland (“WHSQ”). That application concerned her grievances in relation to her treatment in the workplace, particularly since June 2012. At that time (in June 2012) the Applicant had received a warning letter from the Employer regarding her manner in the workplace and its perceived impact on other employees. The Applicant for her part had concerns that there was manoeuvring afoot to replace her with another preferred employee.
[8] The Applicant claims that she relied on the progress of that application to ventilate her concerns following her dismissal as she anticipated the complaint may result in her reinstatement.
[9] The Applicant also gave evidence that in July 2012 she had contacted the Queensland Working Women’s Service about her circumstances.
[10] The Applicant stated that she was aware of the jurisdiction of the Commission as she had investigated the website and had had contact with the Commission by telephone seeking advice in respect of her circumstances. The Applicant’s evidence is that she was aware that there might be issues arising from having two applications to different regulatory bodies on foot at the same time. The Applicant was aware of this situation, on her evidence, in December 2012, which is shortly after her dismissal took effect.
[11] The Applicant went on to explain that she had monitored the progress of her grievance to WHSQ throughout December 2012 and January 2013 and had various interactions with that agency about matters relating to that investigation. The Applicant was led to understand that by mid-January 2013 the investigation into her grievance had been completed. The Applicant did not in actuality have access to her completed grievance investigation until late February 2013, whereupon she was disappointed with the outcome.
[12] The Applicant consulted a community legal service on or about 4 March 2013. She was advised at that time that she could seek a review of the WHSQ investigation result and that she should make an application to this Commission for a remedy in relation to her alleged unfair dismissal. The Applicant subsequently made her application to the Commission (on 7 March 2013).
[13] The Applicant gave some evidence over the course of the proceedings that she had been suffering from depression for a lengthy period of time and was being medically treated for that condition. The Applicant appears to have been treated for her condition from March 2012 onwards and to have been taking medications intermittently since that time.
(b) whether the person first became aware of the dismissal after it had taken effect
[14] The current circumstances do not concern a case where the Applicant became aware of the dismissal after it had taken effect.
(c) any action taken by the person to dispute the dismissal
[15] The Applicant had made an application for an investigation into workplace harassment or bullying through the agency of WHSQ. She had used this avenue as a means of seeking to redress her concerns including seeking reinstatement.
(d) prejudice to the employer (including prejudice caused by the delay)
[16] Evidence was taken from Mr George, the sole director for the Employer, that there was no demonstrable prejudice arising from the application.
(e) the merits of the application
[17] Essentially, the Applicant contends that her redundancy was not an actual redundancy but was fabricated to ensure that she was removed from the business because the Employer thought she was an undesirable employee. She was also of the view that the Employer had manoeuvred the employment arrangements so that an alternative employee might be utilised in her position.
[18] There appeared to be some two other employees who were made redundant at the same time as the Applicant. Mr George gave evidence that the three redundancies arose from the downturn in the industry, which has been restructuring since 2009 to accommodate the contemporary lower level of demand amongst the corporate sector for staging services.
[19] It appeared from the evidence of Mr George that one of the Applicant’s claims about a particular employee continuing in employment arose because the Employer had not updated its website. Mr George apologised for having misled the Applicant by retaining this information publicly when it ought to have been corrected more promptly. Apparently, the Applicant’s name was also retained on the website for some time following her redundancy.
[20] The Applicant led a very significant volume of material in relation to the merits case.
[21] However, these were not proceedings in which the merits could be ventilated comprehensively and I have not been able to draw any conclusions one way or the other about whether the Applicant’s claims are meritorious or otherwise. Therefore, the merits of the matter are a neutral consideration for the purposes of this proceeding.
(f) fairness as between the person and other persons in a similar position
[22] Though two other employees were made redundant around the same time as the Applicant, neither of these employees circumstances were raised as representing any issue of fairness for the purposes of this subsection.
Consideration
[23] I am mindful that the Applicant pressed her mental health circumstances as they have been at least since early 2012.
[24] But on the evidence before me they do not appear to have impinged upon her capacity to make an application within the requisite time period.
[25] The Applicant had collated a very significant volume of materials relating to her merit claim, and by so doing demonstrated some significant degree of organisation and composure of mind.
[26] But beyond this, the Applicant’s conduct since the time of her dismissal itself indicates that the Applicant was of sufficiently composed mind generally to negotiate the bureaucratic processes to facilitate a claim against her Employer through the agency of WHSQ.
[27] The Applicant maintained consistent interaction with WHSQ in the months following her dismissal and it was only when the WHSQ application did not yield the desired result that she sought to make this application following further legal advice.
[28] The Applicant was not in any manner uninformed about the jurisdiction vested in the Commission under s.394 of the Act. In December 2012 the Applicant had made contact with the Commission to consider her circumstances. This was shortly after her employment had been terminated for reason of redundancy.
[29] At earlier times the Applicant had also manifested a capacity to seize the initiative to pursue her interests by contacting the Queensland Working Women’s Service.
[30] In all, I do not see in the actual conduct of the Applicant any significant limitation in respect of her capacity to access the bureaucracy for the purposes of protecting and advancing her interests. Indeed, the delay in making the application appears to be attributable solely to matters of the Applicant’s judgement as to the appropriate course of action to take, and not because of any other factor such as the Applicant’s mental health.
[31] I also add that the Applicant was suspicious of her Employer’s intentions in June of 2012. Thus, the Applicant was herself on notice effectively that her interests were at stake at a very early point in time. The dismissal therefore occurred within the context in which the Applicant had pre-existing concerns with her Employer’s motives and conduct. Of course, this was evident from her contact with the Queensland Working Women’s Service in July 2012. This was a case then in which the Applicant was poised, as it were, to question her Employer’s conduct at the time of the dismissal.
[32] Despite these circumstances, the Applicant still was unable to make an application until some months after the dismissal took effect.
Conclusion
[33] Considering all the circumstances of this case, I do not discern that there are any exceptional circumstances relating to the Applicant’s failure to make an application within the requisite 14 day time period, as it was, under s.394(2)(a) of the Act. The Applicant was of sufficiently composed mind to access the bureaucracy to assert her rights and had knowledge of that bureaucracy and other community resources from an early point in time. The Applicant was also poised to challenge any actions taken against her interests from an early date.
[34] There is no reason, therefore, that would constitute exceptional circumstances that explains why the Applicant did not make an application before such time as she did.
[35] The application under s.394 of the Act seeking an unfair dismissal remedy against the Employer is therefore dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms E. Johansson, Applicant
Mr L. George, for the Respondent
Hearing details:
Brisbane
2013
25 June
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