Ms Shan Denham v DownUnder GeoSolutions Pty Ltd
[2014] FWC 2746
•29 APRIL 2014
[2014] FWC 2746 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Shan Denham
v
DownUnder GeoSolutions Pty Ltd
(C2014/364)
COMMISSIONER CLOGHAN | PERTH, 29 APRIL 2014 |
Application to deal with contraventions involving dismissal.
[1] On 12 March 2014, Ms Shan Denham (Ms Denham or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her employment with Down Under Geo Solutions Pty Ltd (Employer).
[2] Ms Denham alleges that she was dismissed by Down Under Geo Solutions Pty Ltd on 13 December 2013.
[3] The application was made pursuant to s.365 of the Fair Work Act (FW Act).
[4] For the Commission to have jurisdiction to hear and determine the substantive application, it is necessary for the application to be made within 21 days after the dismissal took effect pursuant to paragraph 366(1) of the FW Act.
[5] Ms Denham has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made, that is, 12 March 2014, if it is satisfied that there are exceptional circumstances, pursuant to s.366(2) of the FW Act taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[6] To resolve whether there are exceptional circumstances to allow the Applicant to be filed on 12 March 2014, I issued procedural directions to the parties on 17 March 2014 advising that the matter would be determined by written submissions.
[7] The Applicant provided her submission on 22 March 2014. The Employer responded to the Applicant’s submission on 10 April 2014.
[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 12 March 2014.
RELEVANT BACKGROUND
[9] The Applicant commenced employment with the Employer on 16 September 2013. The Applicant states in her application that she was dismissed on 13 December 2013. However, in her submission of 22 March 2014, the Applicant states that she was dismissed on 31 January 2014.
[10] The Employer has provided the Commission with a copy of correspondence to the Applicant dated 13 December 2013, which is entitled “non-confirmation of employment”. The relevant parts of the correspondence are as follows:
“I therefore regret to inform you that, we will not be confirming your employment with the Company effective 13th December 2013.
The Company has agreed to pay you 1 month base salary inclusive of in lieu of notice. You shall be paid until 31st January 2014.” 1
[11] I find that the employment relationship ceased on 13 December 2013.
[12] Ms Denham has made her application 89 days after the dismissal took effect and 66 days outside the statutory timeline of 21 days.
[13] I now turn to the relevant legislative provisions which relate to Ms Denham’s application.
RELEVANT STATUTORY PROVISIONS
“365 Application for the FWC to deal with a dismissal dispute
...
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[14] I now consider the provisions of the legislation as they relate to Ms Denham’s application.
CONSIDERATION
[15] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:
“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.
[16] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.
[17] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.
s.366(2)(a) the reason for the delay
[18] Ms Denham relevantly submits:
- I then lodged an unfair dismissal claim (Application - Qualifying Period - U2014/555 - Denham v DownUnder GeoSolutions Pty Ltd) in which I was told I had to be employed by the company for 6 months before I could lodge an Unfair Dismissal claim. They told me I had a case and directed me back to the Fair Work website. This is where I decided to lodge this claim.
- Therefore I couldn’t lodge this any earlier as a) I didn’t know there was a person hired into my role and b) it was delayed as I was filing an Unfair Dismissal claim
- I haven’t taken any action directly with DownUnder as I was extremely embarrassed to be terminated and didn’t want to deal with the company or people there again.”
“ It was brought to my attention that a young family member, in which DownUnder are paying considerably less was hired into the role I was told was made redundant and that my skill set no longer matched what the new position was – the position is basically the same with only some items changed from the position description. I was only told of this at the end of February, which is after the 21 day period.
[19] Ms Denham’s unfair dismissal application was made on 25 February 2014 in which she states that the dismissal took effect on “February 2014”.
[20] The facts are that Ms Denham was dismissed on 13 December 2013 and lodged an unfair dismissal application over two months later after the dismissal took effect. Consequently, for the period 13 December 2013 to 25 February 2014, there is no reason for the delay in filing this application.
[21] When the Commission Conciliator highlighted to Ms Denham, on 4 March 2014, that she had not been employed for the minimum period of employment to be protected from unfair dismissal, it appears, from her submission, she returned to the Commission website to agitate her claim through another “avenue” - this application.
[22] I apprehend the Applicant to be submitting that the reason or the delay in filing this application is that she filed an unfair dismissal application. However, the filing of the unfair dismissal application was approximately two (2) months and two (2) weeks after the dismissal took effect. Further, irrespective of the lack of the minimum period of employment, the unfair dismissal application was filed over seven (7) weeks beyond the statutory timeline required. For these reasons, the Applicant cannot rely upon filing an unfair dismissal application as constituting exceptional circumstances.
[23] I also apprehend the Applicant to be submitting that it was only towards the end of February 2014 that she became aware that the Employer had employed another person to fulfil functions carried out by Ms Denham when she was employed. Further, that this person had a familial relationship to the General Manager.
[24] The Employer does not deny both assertions made by the Applicant. The Employer made the Applicant’s position redundant, reallocated the work within two existing positions and created a junior position which has a salary of approximately one-half of the Applicant’s remuneration when she was employed. However, these facts do not go to the issue of “exceptional circumstances”.
[25] Parliament has legislated 21 days for an application to be filed in accordance with s.366(1)(a) of the FW Act and not when particular information becomes available to prospective applicants. If reliance upon when information becomes available to prospective applicants, then the certainty of s.366(1)(a) would be replaced with uncertainty of an operative condition which is self determining. This would undermine Parliament’s intention in setting a statutory time and is an unacceptable reason, in these circumstances, for the delay in filing an application.
[26] Similarly, although not explicitly asserted, the Applicant appears to be stating that she was unaware of the statutory timeline. If becoming aware of the statutory timeline was an exceptional circumstance for delay in making an application to the Commission, the statutory timeline would become meaningless. Ignorance of the provisions of the FW Act is not an exceptional circumstance for the delay in lodging an application Nulty v Bluestar Group Pty Ltd[2011] FWAFB 975 [14].
s.366(2)(b) any action taken by the person to dispute the dismissal
[27] The only documentation submitted by the Applicant to dispute her dismissal by the Employer on 13 December 2013 was the lodging of the unfair dismissal application on 25 February 2014. It is noted that the Applicant did not provide the Employer with a copy of that application and the Employer only became aware of that action as a result of this General Protections application.
s.366(2)(c) prejudice to the employer (including prejudice caused by the delay)
[28] The Applicant does not make any reference in her submission to this criterion. The Employer does not contend any particular prejudice but notes that absence of prejudice is insufficient to make out a case for an extension.
s.366(2)(d) the merits of the application
[29] The Applicant describes in her application the Employer’s alleged contravention as follows:
“I believe I was terminated unlawfully.
There was bullying going on with myself and other staff and I don’t want them to get away with it.”
[30] The Applicant alleges that the Employer has contravened s.355 of the FW Act relating to coercion.
[31] I am unable from the submission and documentation of the Applicant to discern any particular facts which support the assertion that the Employer has contravened s.355 of the FW Act. However, while I have considered this criterion, I will, in the absence of a hearing and tested evidence, accord it a neutral position in terms of whether there are exceptional circumstances to allow a further period in which to allow Ms Denham to file her application.
s.366(2)(e) fairness as between the person and other persons in a like position
[32] The criterion was not addressed by the Applicant in her submission. It would appear that the criterion is not a relevant consideration. To the extent it is relevant, I have adopted a neutral position with respect to the criterion.
CONCLUSION
[33] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Ms Denham filing her application. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.
COMMISSIONER
Final written submissions:
Applicant: 22 March 2014.
Respondent: 10 April 2014.
1 Employer’s submission “A”
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