Ms Lorraine Camm v Sigma Company Limited

[2020] FWC 3068

[2020] FWC 3068

FAIR WORK COMMISSION

DECISION

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

Ms Lorraine Camm
v
Sigma Company Limited
(U2020/6643)

COMMISSIONER MCKINNON MELBOURNE, 11 JUNE 2020

Application for an unfair dismissal remedy – extension of time.

[1] Lorraine Camm was employed by Sigma Company Limited as Manager, Strategic Sourcing from 2 July 2018 until her employment terminated with effect from 9 April 2020.

[2] On 13 May 2020, Ms Camm applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] Ms Camm’s application was filed 13 days late. The question is whether an extension of time to file the application should be granted.

Extension of time

[4] Section 394(3) of the Act sets out a range of factors that are to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  any action taken by the person to dispute the dismissal;

•  prejudice to the employer (including prejudice caused by the delay);

•  the merits of the application; and

•  fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon” but not necessarily circumstances that are “unique, or unprecedented, or very rare”. 2

Relevant factors

[6] Reason for delay: Ms Camm was notified that her employment would terminate by reason of redundancy on 12 March 2020. In the period from 12 March 2020 to 2 April 2020, she sought redeployment into an alternative role. She expressed interest in two vacancies for roles very similar to her own but with lower levels of responsibility and remuneration. On 2 April 2020, she was advised that recruitment for those roles would “not proceed”. Her dismissal took effect one week later.

[7] On 11 May 2020, Ms Camm found each of the roles in which she had expressed an interest advertised on seek.com.au. The advertisements were dated 30 April 2020 and 11 May 2020 respectively.

[8] The advertisement of these two roles approximately four to six weeks after Ms Camm was advised that recruitment for the roles would not proceed and her prompt action to dispute the dismissal once she became aware of the advertised roles weighs in favour of a grant of additional time to make the application.

[9] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration. Ms Camm knew that her employment was coming to an end before the dismissal took effect.

[10] Any action taken by the person to dispute the dismissal: Ms Camm initially asked Sigma Company to reconsider the decision to end her employment because of its likely effect on her. She sought redeployment to an alternative role before she was dismissed. After the dismissal, she turned her focus to finding new employment. It was only then that she discovered the advertisements, giving rise to a reasonable concern about whether the dismissal was a genuine redundancy. She made this application within two days of discovering the alternative roles on seek.com.au. Her actions weigh in favour of a grant of additional time.

[11] Prejudice to the employer (including prejudice caused by the delay): There is no evidence of any prejudice to Sigma Company if the application proceeds and no objection is raised to the application for extension of time on this basis. This is a neutral consideration.

[12] Merits of the application: The merits of this case are arguable for both parties. Prima facie, it appears that the role Ms Camm occupied at the time of dismissal was redundant and that at that time there was a recruitment freeze in place. Sigma Company points to the evolving situation over the period in light of the COVID-19 pandemic and resulting changes in its recruitment policy before and after the dismissal. It may simply be a matter of unfortunate timing. However, there is also an arguable case that the dismissal was not a genuine redundancy for the purposes of section 389 of the Act because Ms Camm could reasonably have been redeployed to another role within the business. It is unclear if those roles were open at the time of dismissal in light of the recruitment freeze, just as it is unclear whether the recruitment freeze also operated as a barrier to redeployment. Whether the evidence will ultimately establish that the dismissal was a genuine redundancy or one that was harsh, unjust and/or unreasonable is not yet known. On balance, this is a neutral consideration.

[13] Fairness as between the person and other persons in a similar position: There is nothing in the materials to indicate that fairness as between two or more persons is a relevant factor in this case. It is a neutral consideration.

Conclusion and disposition

[14] I find that there are exceptional circumstances in this case arising from the inconsistency in advice given to Ms Camm about available alternative roles (linked to the company’s evolving response to the COVID-19 pandemic) and the advertisement of those roles in a matter of weeks after dismissal.

[15] On balance, the considerations above tend in favour of additional time being granted and it is appropriate that a further period of time be allowed.

[16] The time within which Ms Camm is required to file her application for an unfair dismissal remedy is extended to 13 May 2020.

[17] The application will now be referred for conciliation.

COMMISSIONER

Appearances:

T Hancock of McDonald Murholme for the applicant.
D Murray of the Australian Industry Group for the respondent.

Hearing details:

2020.
Melbourne (telephone hearing):
June 11.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1.