Ms Nicole Pearson v Roberts Limited T/A Roberts
[2015] FWC 6905
•8 OCTOBER 2015
| [2015] FWC 6905 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Nicole Pearson
v
Roberts Limited T/A Roberts
(U2015/9906)
COMMISSIONER WILSON | MELBOURNE, 8 OCTOBER 2015 |
Application for relief from unfair dismissal.
[1] This matter concerns an application made by Nicole Pearson alleging unfair dismissal against her former employer, Roberts Limited. Ms Pearson’s application to the Fair Work Commission was received in the Fair Work Commission by email on 3 August 2015 after having been first sent to the Fair Work Ombudsman. The document itself is dated 26 July 2015. Ms Pearson’s application discloses that the date upon which her dismissal took effect is 25 May 2015.
[2] Section 394(2) of the Fair Work Act 2009 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 49 days out of time.
[3] In this decision, I have considered whether an extension of time should be granted to Ms Pearson for the making of her application, and for the reasons set out below, I am not satisfied that a further period should be allowed for the making of her application.
[4] 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 for the making of the application 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
[5] The Respondent, Roberts Ltd, 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.
[6] The circumstances of Ms Pearson’s employment and her subsequent unfair dismissal application include the following.
[7] Ms Pearson commenced employment with Roberts Ltd on 4 August 2014 as a property manager for the company after having relocated to Tasmania of her own accord. Her employment was in Ulverstone, Tasmania, and her job title was Department Manager – North West Property Management. At the time that she was dismissed, Ms Pearson received a salary of $65,000 per year. Ms Pearson also had access to the private use of a motor vehicle provided by Roberts Ltd.
[8] In about March 2015, Roberts Ltd decided to employ a new Portfolio/Property Manager, also to be based in Ulverstone.
[9] Roberts Ltd submits that Ms Roberts indicated some interest in being moved into the new position in order that she might benefit from some full-time experience in a Portfolio/Property Manager role, ostensibly to develop her skills as a Department Manager. However agreement to that move was not reached, with Ms Pearson indicating, on the Respondent’s submissions, that she would only make the move if her salary was at least $55,000 per year. In contrast to the salary Ms Pearson received, as well as what she sought, Roberts Ltd submits that the salary for the advertised Portfolio/Property Manager position was $45,000 per year.
[10] Roberts Ltd submits that it advised Ms Pearson it was not possible for them to offer her the Portfolio/Property Manager position at the rate of pay she sought. Subsequently agreement was not reached between the parties for Ms Pearson to move into the new position.
[11] The recruitment process for the Portfolio/Property Manager position continued and a new employee commenced in the role in early May 2015. Roberts Ltd submits that Ms Pearson was responsible for training and inducting the new employee.
[12] Subsequent to this process, Roberts Ltd reached a decision that it no longer required a Department Manager and decided to make Ms Pearson redundant. That decision was communicated to her in a meeting on 25 May 2015 with the company’s State Manager, Mr Kahn Dick, and confirmed in a letter given to her on the same day.
[13] The letter to Ms Pearson indicated that Roberts Ltd had undertaken a restructure of its business and that it took the view there was presently no position within the company that would be suitable for her skills, salary or experience. The correspondence also indicated that Roberts Ltd had also consulted with a related entity, Ruralco Group about whether there might be a position within a reasonable distance that might be suitable for Ms Pearson, and advised Ms Pearson that it had determined there was not. The correspondence advised Ms Pearson that as a result she was to be made redundant, with the redundancy to take effect on the same day that the letter was provided to her, being 25 May 2015.
[14] The correspondence also advised Ms Pearson that she would be entitled to one month’s payment in lieu of notice and that she would receive her accrued and unused annual leave entitlements. Beyond that, Ms Pearson was not paid any redundancy pay At the time of her dismissal she had not yet worked a full year with Roberts Ltd and thereby was not eligible for a redundancy payment.
[15] After being dismissed, Ms Pearson sought advice about her dismissal from a consultant, Leigh Bernhardt, and what could be done about it. Mr Bernhardt was known to Ms Pearson because of work he had done for the company she had previously worked with in Queensland. Ms Pearson’s evidence is that she engaged Mr Bernhardt on 11 June 2015, who advised her to make a general protections claim under the Act. She took that advice and a general protections application was filed in the Fair Work Commission on Friday 12 June 2015, 18 days after her dismissal took effect, and within the period allowed by the Act for the making of a general protections application, which expired on Monday 15 June 2015.
[16] The general protections application progressed in the usual manner before the Fair Work Commission, with a conciliation conference held before a staff conciliator on 1 July 2015. On 17 July 2015, Ms Pearson discontinued the general protections application.
[17] Having discontinued the general protections application, Ms Pearson made an unfair dismissal application, also to the Fair Work Commission.
[18] That application is signed and dated 26 July 2015, however Ms Pearson incorrectly sent the application to the Fair Work Ombudsman (FWO), which received it on 30 July 2015. The FWO then forwarded Ms Pearson’s application to the Fair Work Commission, where it was received on 3 August 2015. As such, Ms Pearson’s unfair dismissal application was lodged 49 days outside of the 21 day time limit provided for within its s.394. In order for the application to be lodged within time, it would need to have been lodged no later than 15 June 2015.
[19] 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 Pearson.
[20] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Ms Pearson is otherwise a person protected from unfair dismissal and the Respondent makes no reliance upon the Small Business Fair Dismissal Code.
EXTENSION OF TIME
[21] 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
[22] In considering whether an extension of time should be granted to Ms Pearson, I am required to consider all of the criteria in s.394, which I now do.
Consideration of the factors set out in section 394(3) of the Act
1. The reason for the delay
[23] 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
[24] The material before the Commission in this matter discloses that Ms Pearson made a general protections application on 12 June 2015, having been advised about the matter shortly before. With a dismissal that took effect on 25 May 2015, being the same day it was notified to her, an action to be taken by Ms Pearson disputing her dismissal, whether that be a general protections application or an unfair dismissal application would need to have been made by 15 June 2015 in order for it to be within time.
[25] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Pearson to lodge her application.
[26] Ms Pearson’s evidence is that having been dismissed on 25 May 2015 she was distressed and that she sought out the services of Mr Bernhardt whom she knew from work he had done for her former employer. She asked him for advice about her circumstances and he recommended that she commence a general protections application. Her evidence is that he had not suggested to her the option of pursuing an unfair dismissal matter. At an early stage in cross examination, Ms Pearson gave evidence that when the general protections matter went to conciliation on 1 July 2015, she formed a view in the course of that conference that she needed to pursue an unfair dismissal claim. Her later answers backed away from that proposition, suggesting instead that a concluded view had not been formed as early as 1 July 2015.
[27] Even so, the documents provided to the Commission by the Applicant attached to her unfair dismissal application, corroborate that by at least 8 July 2015, Ms Roberts had terminated the services of Mr Bernhardt and that this had occurred because of matters arising at the time of the general protections conciliation conference.
[28] Accordingly I prefer Ms Pearson’s early answers to those given later and find that she did in fact form a view on 1 July 2015 that the preferable course of action for her was to pursue an unfair dismissal application rather than a general protections application.
[29] Ms Pearson also relies upon her level of distress following dismissal and in particular refers to a medical certificate indicating that she has been treated for depression and anxiety since June 2014. The certificate itself does not disclose the detail of that diagnosis or the treatment she was receiving, and neither did the medical practitioner who issued the certificate give evidence on behalf of Ms Pearson.
[30] Notwithstanding that Ms Pearson may have commenced proceedings in the Fair Work Commission under what she now regards as an unpreferred section, the obligation was upon her to put forward an acceptable reason for her delay in making the application that is now before me.
[31] Ms Pearson’s evidence is also that she sought out the assistance of a legal aid lawyer who took until about 17 July 2015 to provide advice about her unfair dismissal rights.
[32] Ms Pearson also puts forward that she located the unfair dismissal forms herself and that she completed the unfair dismissal application form on 26 July 2015 and then incorrectly posted the application to the Fair Work Ombudsman. She now accepts that the application was incorrectly addressed.
[33] As a result of the foregoing, four reasons crystallise for the delay in the making of Ms Pearson’s application for an unfair dismissal remedy;
● The first of those is that she relied upon her representative, Mr Bernhardt, about what she should do as a result of having been dismissed by Roberts Ltd and she was not otherwise aware that an alternative approach might be to file an unfair dismissal application with the Fair Work Commission, instead of a general protections application;
● The second of the reasons is that at the time of the general protections conciliation conference, Ms Pearson formed the view that an unfair dismissal application would be her preferred approach of redress for her dismissal;
● The third reasons for the delay appears to be the time it took after forming the view that an unfair dismissal application might be preferred, for Ms Pearson to locate the forms necessary for such application, complete them and mail them first erroneously to the Fair Work Ombudsman who then forwarded them to the Fair Work Commission;
● The fourth of the reasons relied upon by Ms Pearson is her medical condition which included a diagnosis of depression and anxiety.
[34] Having considered these circumstances, I do not consider an acceptable reason has been put forward for the delay by Ms Pearson in making an unfair dismissal application. While the first of the factors referred to above, the potential for representative error, has been accepted as an acceptable reason for the delay in making an application, I consider that the context of that factor together with the second and third factors referred to above militate against there being an acceptable reason in Ms Pearson’s case.
[35] This is not a circumstance in which, having realised that she might have commenced an action which was no longer her preferred course that she immediately endeavoured to safeguard her rights with an immediate unfair dismissal application.
[36] While the fourth factor put forward by Ms Pearson, namely her medical condition, may count in her favour, I do not consider it does on this occasion because there is insufficient evidence before me about the depth of the diagnosis. In particular the evidence does not suggest that Ms Pearson’s condition was so debilitating as to prevent her from making a timely application after deciding that one needed to be made.
[37] Accordingly, this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.
2. Whether the person first became aware of the dismissal after it had taken effect
[38] On the basis of the evidence before me, I am satisfied that Ms Pearson first became aware of the termination of employment on 25 May 2015. This is therefore not a circumstance where she only became aware of her termination at some point after the time that it too effect. Accordingly, this is a neutral factor in my consideration.
3. Any action taken by the person to dispute the dismissal
[39] 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. 7
[40] There is no evidence before me that Ms Pearson endeavoured to dispute her dismissal, other than through the making of the general protections and unfair dismissal applications referred to above. Other than these actions, I am satisfied that Ms Pearson took no substantive action to dispute her dismissal until the making of her application to the Fair Work Commission on 3 August 2015. Ms Pearson was not delayed in making her application because was in discussion with the Respondent about her grievance in another forum.
[41] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.
4. Prejudice to the employer (including prejudice caused by the delay)
[42] The delay in the filing of the application is 49 days. The Respondent puts forward the prejudice has already accrued to it because it had to contend with two applications arising out of Ms Pearson’s dismissal. The Respondent submits that not only has it needed to respond to this unfair dismissal application, but it is also had to respond to a general protections application, at least to the stage of a conciliation conference.
[43] 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 create 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. 8
[44] In relation to this matter, I do not find 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
[45] 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.
[46] In the unfair dismissal application, Ms Pearson rejects that she was made redundant saying that her position “was assumed by the State Manager, Anne Ackroyd and North West Sales Manager, Raymond Builenhouse”. For its part, Roberts Ltd reject that proposition, setting out in its submissions that Ms Pearson was dismissed for reasons of genuine redundancy. There appears to be no reliance on the part of the Respondent that Ms Pearson was dismissed for any reason relating to her capacity or conduct.
[47] In such case, consideration of the merits of the matter can be confined to a consideration of the extent to which the Respondent might reasonably be able to argue there had been a genuine redundancy. Relevant to that consideration is the contention that Ms Pearson puts forward about the assumption of her position by two others. Also relevant is the fact that advertised Portfolio/Property Manager position was at a considerably lower salary point than the position occupied by Ms Pearson.
[48] In relation to the former consideration, the fact that duties have been assumed by others is likely to count in favour of an assessment that there was a genuine redundancy. In relation to the latter, the difference in salary points is one factor, but by no means the only factor, which the Commission would take into account as to whether the respondent no longer required Ms Pearson’s job to be performed by anyone because of changes in the operational requirements of its enterprise.
[49] The Respondent also submits that even if Ms Pearson’s dismissal was found to have been unfair, any order for compensation would be low, and certainly not to the level sought by the Applicant, for reason that she has found employment since dismissal. It submits that in such circumstances Ms Pearson’s post-dismissal earnings would substantially offset an order for compensation.
[50] 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 factors 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 case either has very strong or very weak merits on its face. 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. 9
[51] In considering Ms Pearson’s application, I take the view that it is more likely than not that a full exposition of the evidence of this matter would result in a finding that there had been a genuine redundancy. Whereas, of course, the definition of genuine redundancy requires a consideration of whether the respondent has complied with any obligation in a modern award or enterprise agreement that applied to it to consult about the redundancy, I note there is no material before me to suggest that Ms Pearson was covered by either. My assessment of the merits the matter is therefore within that context.
[52] As a result, it is my view that consideration of this criterion resolves in Roberts Ltd’s favour.
6. Fairness as between the person and other persons in a similar position
[53] 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. 10
[54] In applying Ms Pearson's facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to her would give rise to an expectation that there had been some process of immediate action to lodge an unfair dismissal claim once she had realised that she no longer wish to pursue a general protections claim. There is a considerable period between 1 July 2015, when she realised that she wanted to consider an unfair dismissal matter and 26 July 2015, which is the date shown upon the unfair dismissal application itself.
[55] That period, of more than three weeks, is not entirely explained by the time it took for Ms Pearson to locate and complete the application, or to seek assistance from a legal aid lawyer. Neither can it be entirely explained by the medical condition Ms Pearson advances. While distressed and depressed as a result of having been dismissed, there is no evidence before me that her condition was so debilitating that a three-week period to file the relevant application would be justified. As a result, I consider that it would be unfair to other unfair dismissal applications to exercise a discretion in Ms Pearson’s favour in the circumstances disclosed in this matter.
[56] 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 Ms Pearson's unfair dismissal application I am not satisfied there are exceptional circumstances that would warrant allowing a further period for her to make an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Ms Pearson’s case but also to the criteria set out within s.394 (3) of the Act.
[57] After consideration of the whole of 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 Pearson
[58] For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order dismissing Ms Pearson’s application as being out of time.
COMMISSIONER
Appearances:
Nicole Pearson, on her own behalf
Mr Dearden, Hall & Wilcox Lawyers, for the Respondent
Hearing details:
2015
Melbourne (by telephone)
September 30
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 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 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, 2003) PR927201, at [16]
9 Haining v Deputy President Drake (1998) 87 FCR 248, 250
10 Wilson v Woolworths [2010] FWA 2480, [24]‒[29]
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