Ms Karyn Zaska v Staff Link Personnel Pty Ltd T/A Staff Link
[2015] FWC 6399
•18 SEPTEMBER 2015
| [2015] FWC 6399 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Karyn Zaska
v
Staff Link Personnel Pty Ltd T/A Staff Link
(U2015/9165)
COMMISSIONER WILSON | MELBOURNE, 18 SEPTEMBER 2015 |
Application for relief from unfair dismissal.
[1] This matter concerns an application made by Ms Karyn Zaska alleging unfair dismissal against her former employer, Staff Link Personnel Pty Ltd, trading as Staff Link Personnel. Ms Zaska’s application to the Fair Work Commission (the Commission) was first received by email on 8 July 2015. While the date shown on the signature block of the application form is 22 June 2015, the form was not submitted on that date.
[2] Ms Zaska’s application discloses that the date upon which her dismissal took effect is 1 April 2015, and the evidence generally supports that as being the date on which she was told she was dismissed, and the date that she finished working with Staff Link Personnel.
[3] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 77 days out of time, being the period between 1 April and 8 July 2015.
[4] In this decision, I have considered whether an extension of time should be granted to Ms Zaska for the making of her application, and for the reasons set out below, I am not satisfied that a further period should be allowed.
[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances, taking into account the criteria which are specified within s.394 (3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2
[6] The Respondent, Staff Link Personnel, (Staff Link) objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.
[7] Those circumstances include that Ms Zaska was employed by Staff Link in August 2008 to provide business development services. Her duties were to obtain business for the company and, in particular, to grow the existing client base. Once she had ascertained a business opportunity, for example to recruit a particular number of employees on behalf of a client, she passed the order over to other staff of the company who would proceed to fill the vacancies.
[8] All things considered, Staff Link is a small employer, and has been for some time. Until recently Staff Link comprised two parts, one aimed at providing services to the employment of “white-collar” or office-based employees, and the other aimed at providing services for the employment of factory or outdoor based workers, such as unskilled labourers or semiskilled employees. The company’s white-collar recruitment focused on office-based roles with about 80% of its recruitment being for office support employees and about 20% for more senior positions such as people with managerial, specialist accounting or engineering skills.
[9] Ms Zaska was remunerated through an annual salary of $70,000 per annum. In addition to the salary she received private use of a motor vehicle, which was also used for business purposes, and payment of superannuation.
[10] On 1 April 2015 Ms Zaska was dismissed in a meeting with Mr Alan Warne, the CEO and Joy Northover, a Director and Manager.
[11] Ms Zaska was told by Mr Warne and Ms Northover that her position could no longer be sustained by the company and that as a result she was being made redundant. She was provided with a letter of termination, also dated 1 April 2015 which told her that “as a matter of necessity” her employment with the business would conclude that day. The correspondence also referred to there being several months of business losses with the company’s management finding itself in a position where her role as business development manager was no longer sustainable.
[12] Ms Zaska was then asked to leave the premises, which she did.
[13] Ms Zaska’s evidence is that at the time she was in shock. She had no idea that her dismissal was coming.
[14] She did not take immediate advice about her rights after her dismissal, since she thought that her dismissal was a genuine redundancy.
[15] Ms Zaska’s evidence is that she began thinking about what her rights and entitlements might be when she had her attention drawn to a job advertisement placed by Staff Link on or around 10 June 2015. Her evidence was that the advertisement was drawn to her attention by Ms Gill Mullins, the person acting as her representative in the hearing.
[16] A copy of the advertisement was provided to the Commission after the hearing and its contents have been taken into account in forming this decision. The advertisement refers to Staff Link Personnel seeking a Business Development Manager, and inviting applicants to contact Ms Northover for further information. The duties of the position are only peripherally described in the advertisement, including the following;
“Business Development Mgr
Do you have a passion for B2B service excellence and a track record of successful business development achievements? Staff Link Personnel is looking for an experienced solution sales professional with a strong understanding of the changing Perth business scene. As a long-established WA independent recruitment agency, we are committed to partnering with our clients in providing short-term and permanent staffing solutions. We have a loyal client base covering a wide range of industries across blue collar, white collar, professional and technical areas and a committed and experienced recruitment team. With our dedication to providing quality service solutions, we are well-placed to build the current business growth into new and existing markets.”
[17] Having had the advertisement drawn to her attention around 10 June 2015, Ms Zaska noticed it was advertised again on or around 19 June 2015.
[18] Ms Zaska was concerned about whether the job being advertised by Staff Link Personnel was the one from which she had been dismissed. Ms Mullins undertook inquiries on behalf of Ms Zaska in late June. Ms Mullins provided some of the information about her inquiries to the Commission after the hearing. That information included extracts of contact made by Ms Mullins with an online advisory service, the FW Centre. Those inquiries commenced, it appears, on 17 June 2015 and continued through until 22 June 2015. After an exchange of information about whether the person being enquired about might be entitled to pro rata long service leave, the advisor then provided the following, pertaining to an unfair dismissal claim;
“Gillian,
There is nothing preventing the employee from filing an unfair dismissal claim (see attached), however, the employee will need to argue as to why her application should be accepted by the Commission.
Greg”
[19] Ms Mullins’ explanation to the Commission about this contact included that she initiated the contact outside of the 21 day period for making an unfair dismissal application and that the purpose of making the enquiry was to seek further information about Ms Zaska’s rights. In particular she wanted their opinion about whether what had occurred to Ms Zaska was a fair and just way to proceed.
[20] Ms Zaska’s evidence was that she made an unfair dismissal application as soon as she was able to, and after she had obtained Ms Mullins’ advice on the subject.
[21] For its part, Staff Link, through Mr Warne, Ms O’Malley and Ms Northover argued that Ms Zaska’s dismissal in April was justified.
[22] Staff Link had been going through a poor trading position. There had been a downturn in sales and the company was in a situation where it needed to address its cost structure. In particular, there had been a reduction in the company’s “white-collar” business, which was the part of the business for which had been responsible Ms Zaska. As a result of this situation, the company needed to make operational decisions to improve its circumstances.
[23] One of those decisions was to make Ms Northover more operational than she had been and to reduce costs where that could be done. A consequence of that decision making was to make Ms Zaska redundant.
[24] The evidence on behalf of Staff Link was that when it came to advertise the Business Development Manager position in June, the expectation was that the person to be employed would work principally in the “blue-collar” part of the business, which is an area in which Ms Zaska did not have significant experience.
[25] The company’s explanation is that the blue-collar work focused on the high-volume/low-skill recruitment of general hands and labourers and that the business as a whole wanted to move that recruitment into a more trades-based recruitment activity.
[26] Staff Link submitted that there was initially not a strong response to the advertisment, although it had engaged a new Business Development Manager in August, with that person focusing on blue-collar accounts,
[27] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of;
● Ms Karyn Zaska, the Applicant;
● Ms Jill Mullins, who made unsworn submissions on behalf of the Applicant and was her representative;
● Mr Alan Warne, Chief Executive Officer of the Respondent;
● Ms Joy Northover, a Director of the Respondent; and
● Ms Colleen O’Malley, General Manager of the Respondent
[28] Both parties provided material in advance of the hearing and each had the opportunity to submit further material to me after the hearing was completed if they so desired, with both parties taking up that opportunity.
[29] I have taken into account all of the material that has been provided in this matter.
EXTENSION OF TIME
[30] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”.3
[31] In considering whether an extension of time should be granted to Ms Zaska, I am required to consider all of the criteria in s.394, which I now do.
1. The reason for the delay
[32] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6
[33] In relation to Ms Zaska, the evidence shows that until about 10 June 2015, the Zaska had no reason to question her dismissal by Staff Link Personnel. On or around that date, an advertisement placed by Staff Link Personnel for a Business Development Manager was drawn to Ms Zaska’s attention. Until that point she did not consider there may be a question about the propriety or otherwise of her dismissal. Ms Mullins made some enquiries on Ms Zaska’s behalf as to the rights she may have. Those enquiries appear to have been concluded by 22 June 2015.
[34] Having been dismissed by Staff Link on 1 April 2015, for her unfair dismissal application to be within time, Ms Zaska would have needed to have filed such an application no later than 22 April 2015.
[35] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Zaska to lodge her application. The Full Bench has found that an employee needs to provide a credible reason for the whole of the period that the application was delayed.7
[36] In all, that period was a total of 77 days. However, it is noted that an application made on 10 June 2015, being the date she learned of the job advertisement would be 49 days out of time and one lodged on 22 June 2015, when Ms Mullins’ enquiries concluded, would be 61 days out of time.
[37] As referred to above, Ms Zaska’s unfair dismissal application was filed in the Commission on 8 July 2015 and the application itself in the signature box, refers to the date of “22nd June 2015”.
[38] I find that Ms Zaska’s explanation about not questioning her dismissal until learning of the Business Development Manager advertisement on 10 June 2015, coupled with the consequential enquiries made by Ms Mullins about Ms Zaska’s rights and her then consideration of what was relayed back to her, as being her explanation for the delay in making an unfair dismissal application to the Commission.
[39] By at least 22 June 2015, if not earlier, Ms Zaska was likely aware that she had capacity to challenge her dismissal, however an application to the Commission was not made for a further two weeks. There has been no particular explanation given to the Commission as to why that delay might have occurred or why her application form appears to be dated 22 June but then not lodged with the Commission until 8 July 2015.
[40] Taken together, I find that there is not an acceptable reason for the whole of the delay in making Ms Zaska’s application for unfair dismissal remedy.
2. Whether the person first became aware of the dismissal after it had taken effect
[41] On the basis of the evidence before me, I am satisfied that Ms Zaska first became aware of the termination of her employment on 1 April 2015. This is therefore not a circumstance where Ms Zaska only became aware of her termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.
3. Any action taken by the person to dispute the dismissal
[42] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.8
[43] Ms Zaska’s evidence, and the submissions of Ms Mullins, is that the principal of disputing of Ms Zaska’s dismissal amounted to seeking advice once it came to their attention that Staff Link had advertised a Business Development Manager. Other than this action, I am satisfied that Ms Zaska took no substantive action to dispute her dismissal until the making of her application to the Fair Work Commission on 8 July 2015.
[44] In the circumstances of this matter, I am satisfied that there was some questioning by Ms Zaska and Ms Mullins of the dismissal once it came to their attention that Staff Link had advertised a position similar to that previously occupied by Ms Zaska. Since this was not an especially energetic disputing of the dismissal, consisting of the exploring of third-party general advice, I find that this criterion resolves in favour of the Respondent.
4. Prejudice to the employer (including prejudice caused by the delay)
[45] The delay in the filing of the application is 77 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.
[46] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.9
[47] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.
5. The merits of the application
[48] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
[49] The central contention advanced by Ms Zaska is that Staff Link advertised in June 2015 the position from which she was dismissed in April 2015, and it was only once she saw the advertisement that she realised that her dismissal may not be a genuine redundancy.
[50] For its part, Staff Link argue that the advertised position was a different one that was formerly occupied by Ms Zaska; with the position focusing on developing markets for blue-collar workers as opposed to the focus undertaken by Ms Zaska which was to develop markets for white collar workers.
[51] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such a case either has very strong or very weak merits on face value. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.10
[52] In considering Ms Zaska’s application, while I am satisfied that there is at least an arguable case on her behalf, it is also to be noted that the case is as yet untested, and that the former employer equally has at least an arguable case that Ms Zaska’s position was redundant and that it advertised an entirely different position in June, being one with different duties, objectives and skills.
[53] On balance, I consider the Respondent’s case to be more likely to succeed, with the evidence it would call pointing to the different duties and needs of the advertised position. As a result, I consider this factor to resolve in favour of the Respondent.
6. Fairness as between the person and other persons in a similar position
[54] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past.11
[55] In a matter such as this, where a person dismissed for reason of redundancy, find out sometime later that there may be questions about the legitimacy of a redundancy, it could be expected that persons in similar situations would be granted some leniency in the time permitted for making an application. Quite clearly there will be circumstances in which the legitimacy of the redundancy is not called into question until long after the expiry of the 21 day time period.
[56] Accordingly I consider that this criterion resolves in favour of Ms Zaska, but noting that such matter needs to be considered on balance along with each of the other legislated criteria.
[57] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making her unfair dismissal application I am not satisfied there are exceptional circumstances that would warrant allowing a further period for Ms Zaska for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of her case but also to the criteria set out within s.394 (3) of the Act.
[58] After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Zaska.
[59] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Ms Zaska’s application as being out of time.
COMMISSIONER
Appearances:
Ms Zaska on her own behalf
Ms O’Malley, Ms Northover and Mr Warne for the respondent
Hearing details:
2015:
Melbourne
Perth (by video conference)
24 August
Final written submissions:
Applicant 26 August 2015
Respondent 1 September 2015
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]
3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
5 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409
6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287
7 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[2010] FWAFB 7251 (2010) 197 IR 403, at [16] – [18]
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
9 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16].
10 Haining v Deputy President Drake (1998) 87 FCR 248, 250
11 Wilson v Woolworths [2010] FWA 2480
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