Ms Kaye Wilson v The Respondent Ltd T/A Mackay Whitsunday Taxis

[2013] FWC 8634

[2013] FWC 8634 Note: An appeal pursuant to s.604 (C2013/7378) was lodged against this decision - refer to Full Bench decision dated 12 February 2014 for result of appeal.

FAIR WORK COMMISSION

DECISION

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

Ms Kaye Wilson
v
The Respondent Ltd T/A Mackay Whitsunday Taxis
(U2013/9954)

COMMISSIONER BOOTH BRISBANE, 4 NOVEMBER 2013

Termination of Employment - out of time and genuine redundancy.

[1] Ms Kaye Wilson (the Applicant) applied for an unfair dismissal remedy on 28 May 2013. She was employed by Mackay Taxi Holdings Ltd (the Respondent) and was terminated on 24 April 2013.

[2] An application under s.394 of the Fair Work Act 2009 must be brought within 21 days of the dismissal taking effect (which would have been by 15 May) or with such further period the Fair Work Commission (the Commission) allows. The Applicant seeks additional time as her application was lodged on 28 May.

[3] The Respondent resists an extension of time being given, and further asserts that the termination was a result of a genuine redundancy and is therefore not an unfair dismissal. The parties agreed to the preliminary issues of time and redundancy being dealt with on the papers. No relevant facts are in dispute.

Should The Applicant be granted an extension of time to lodge her application?

[4] Further time may be granted if the Commission is satisfied there are exceptional circumstances taking into account the factors listed in s.394(3), discussed below.

[5] The Applicant says her application was delayed for a number of reasons including her distress at being dismissed, a major family health issue affecting her daughter, and attempts to pursue a remedy through the Fair Work Ombudsman (FWO) rather than this Commission.

[6] The Applicant submits that her daughter’s health emergency commenced on 8 May, and she was hospitalised on 22 May. She attempted to contact the FWO on 12 May, and she submits detailed records of unproductive email and telephone communications with the FWO on 13 May, 16 May, 17 May, 20 May, 21 May, 22 May, and 24 May before finally conversing with an officer of FWO on 27 May. It was during that conversation she understood, she says for the first time, that she had to apply to this Commission for a remedy, and that the time limit was 21 days, but that she might be given extra time. She made application promptly.

[7] The Applicant submits that the FWO advised her that they had been experiencing email and telephone difficulties, meaning they had not been able to deal with her enquiries in a timely way.

Section 394(3)(a) Reasons for delay.

[8] Distraction by her daughter’s health emergency in itself is not an exceptional circumstance (compare Muir McMeeken v Action Industrial Catering Pty Ltd 1): on her own evidence, the Applicant pursued inquiries with the FWO during this period. Similarly, while the Applicant was clearly distressed at the termination, this cannot amount to an exceptional circumstance (eg Rose v BMD Constructions Pty Ltd2).

[9] The Respondent argued that there is no explanation of the delay because the Applicant appeared to do nothing for the two weeks immediately following the dismissal. However the Applicant is not obliged to act in two weeks. The allowable time is 21 days. The Applicant began agitating to the FWO not the Commission before the 21 days expired. Therefore, I do not accept the Respondent’s argument that there is no explanation for the delay: the Applicant was agitating: albeit to the wrong body - prior to the expiration of the 21 day period.

[10] It was further argued that the Applicant should have been well aware of the correct jurisdiction having consulted the FWO website and received an email on 22 May that included information about the Commission’s role in unfair dismissals. The Applicant contends she was genuinely seeking advice and guidance and did not comprehend the jurisdictional point until the telephone conversation of 27 May, despite the material on the website and in the email.

[11] Confusion about the jurisdiction of the FWO is not uncommon. Senior Deputy President Richards noted in Gough and Lifeaid Pty Ltd 3 that the confusion alone may not be exceptional circumstances, but that delays and failures by the FWO may amount to exceptional circumstances. So it is in this case. The Applicant was no doubt confused about the jurisdiction of the Commission and the FWO. The FWO, experiencing communication difficulties, failed to converse with and advise the Applicant until well after the allowable time. Once clearly aware of her mistake, the Applicant promptly lodged, albeit without fulsome explanation of the delay, which was explained in later documentation.

[12] It is significant that the Applicant, having become specifically aware of the correct jurisdiction acted promptly and lodged on the next day, the first reasonable opportunity she had to lodge and pay filing fees.

[13] I have concluded that had the Applicant become aware earlier, she would likely have filed earlier. That is, she genuinely thought she was pursing the appropriate remedy and the FWO’s email and telephone problems contributed to her failing to lodge within the 21 days.

[14] On balance, I am satisfied that this factor weighs in favour of application for additional time.

Section 394(3)(b) When did the Applicant became aware of dismissal

[15] The Applicant became aware of the dismissal on 24 April 2013, the day it took effect.

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

[16] As detailed above, the Applicant engaged with the FWO to seek remedy. Otherwise, she submits she did not know she could dispute the dismissal with the Respondent.

Section 394(3)(d) Prejudice to the employer

[17] There is no apparent prejudice to the Respondent from the delay in the Applicant’s application.

Section 394(3)(e) Merits

[18] Subject to the discussion below about whether the termination is a genuine redundancy, on the untested evidence before the Commission, it cannot be said that the Applicant’s application lacks merit.

Section 394(3)(f) Fairness

[19] No submissions were made that weigh this factor either for or against additional time.

Is it a case of genuine redundancy?

[20] If termination of employment is a case of genuine redundancy, it is not an unfair dismissal: s.385(d). Genuine redundancy is defined in s.389 and has two limbs:

● namely, the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

● the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

[21] Under s.389(2), a dismissal is not a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within the employer’s enterprise, or the enterprise of an associated entity of the employer.

[22] There appears no dispute about the consultation requirements of s.389(1)(b). However the parties are at odds about whether the decision to change the role amounts to a genuine redundancy.

[23] From the material of both parties, it is apparent the Respondent decided to employ a qualified bookkeeper, for example a person possessed of a Certificate IV, which the Applicant does not possess but says she was willing to acquire if assisted by the Respondent. It is also apparent that the duties undertaken by the Applicant remained to be discharged. She submits that indeed a further person has been engaged to undertake such duties.

[24] The Applicant asserts that the new role includes some 70% of her previous role, and the Respondent does not appear to dispute this. The statement of Mr Button confirms that “some existing tasks” would be transferred to the bookkeeper, the major change being, however, the decision of the Respondent to engage a person with “formal book-keeping training, skills and experience”. That is, the Applicant’s job, or a significant part of it was still required, but qualifications added to the role.

[25] Mr Button also submits that the Respondent advertised the position, allowing the Applicant to apply for it, but that she was not successful, another applicant being more suitable. This, the Respondent submits, is a genuine redundancy because “the Applicant was not successful in obtaining the new position and consequently was displaced from her old role, and that her employment was terminated as a result.”

[26] On the Respondent’s own evidence, a decision was made to engage a qualified bookkeeper in lieu of the Applicant’s job, incorporating a sufficient proportion of the Applicant’s duties into the new role to justify full-time employment. The Respondent adduced no evidence as to the fate of the balance of the Applicant’s role, all of which appears to be ongoing.

Conclusion

[27] I am satisfied that the Applicant has demonstrated exceptional circumstances for the purposes of granting additional time. The communication problems experienced by the FWO were a significant factor contributing to the delay. Additional time is granted.

[28] I am not convinced that the changes instituted by the Respondent resulted in a genuine redundancy, but were changes to an existing and continuing role. This cannot satisfy the statutory definition of genuine redundancy, which requires that the job is no longer required to be performed by anybody.

[29] I therefore dismiss the Respondent’s jurisdictional objections.

[30] The substantive application will be remitted to the Unfair Dismissal Unit of the Commission for reallocation to a Fair Work Conciliator.

COMMISSIONER

 1   [2012] FWAFB 5933

 2   [2011] FWA 673

 3   [2010] FWA 2481

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