Naoko Okamoto v GBW GAPbuster Worldwide Pty. Ltd
[2017] FWC 2880
•24 MAY 2017
| [2017] FWC 2880 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Naoko Okamoto
v
GBW GAPbuster Worldwide Pty. Ltd
(U2017/834)
| Deputy President Clancy | MELBOURNE, 24 MAY 2017 |
Application for an unfair dismissal remedy – extension of time granted.
Ms Naoko Okamoto alleged that the termination of her employment by GBW GAPbuster Worldwide Pty. Ltd (GBW) was unfair.
There was no dispute that Ms Okamoto was notified of her termination on Friday 6 January 2017 or that it took effect that day. Ms Okamoto lodged her Form F2 – Application on 29 January 2017 (Application) and subsequently filed an amended Form F2 on 30 January 2017, stating that she required a Japanese interpreter in order to participate in conciliation, conference or hearing at the Fair Work Commission (the Commission).
Ms Okamoto’s Application was not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).
In its Form F3 – Employer Response filed on 8 February 2017, GBW objected to Ms Okamoto’s application on two bases; that it was lodged out of time and that her dismissal was a case of genuine redundancy.
The matter was referred to conciliation on 2 March 2017 but did not resolve. Subsequently, the matter was listed for a Conference/Hearing on 31 March 2017 to deal with Ms Okamoto’s application for an extension of time. Following a request made by GBW and having regard to the availability of Commission Members, the matter was relisted for Conference/Hearing before me on 5 May 2017.
At the hearing, Ms Okamoto was granted permission to be represented by Mr G. Dircks pursuant to s.596 of the Act. Regard was had to the fact that she is from a non-English speaking background. Ms S. Chen (GBW Senior Human Resources Advisor) appeared for GBW.
Extension of Time
The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where the Full Bench said:
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To 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. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]
At the hearing, Ms Okamoto gave evidence and addressed the material she had filed. Through Ms Chen, GBW made submissions only.
Section 394(3)(a) the reason for the delay;
There must be an acceptable reason for the delay in making the unfair dismissal application.[2] Ms Okamoto must provide a credible reason for the whole of the period that the application was delayed.[3]
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.
However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.[4]
The Full Bench in Ozsoy v Monstamac Industries Pty Ltd (Ozsoy),[5] described the reason for the delay in the following terms:
“The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.”[6]
In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank,[7] Vice President Watson and Deputy President Smith re-emphasised the point made in Ozsoy:
“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. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”[8]
Finally, the Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic (Diotti)[9]:
“…while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”[10]
Ms Okamoto submitted the reasons for the delay in filing her application were attributable to two factors. The first was associated with her being in Japan when she was notified of the termination of her employment and her evidence in this regard went to difficulties she had in gathering her thoughts, a lack of access to the internet and information and her inability to obtain advice.
However, it emerged at the hearing, during the course of Ms Okamoto’s evidence, that she was not contemplating making an application for unfair dismissal while in Japan and was instead focussed on whether her termination payment was in accordance with her legal entitlement. I therefore do not consider this first factor to be relevant to a determination as to whether there are exceptional circumstances.
The second factor was related to the period following her return to Australia on 24 January 2017. On Friday 27 January 2017, the 21st day following her termination, Ms Okamoto stated she was advised that a casual employee of GBW, whom she understood was also dismissed a few weeks earlier, was being “brought back”[11].
Ms Okamoto also said that when she visited the company to collect her belongings on Saturday 28 January 2017, she was told by Ms Naoko Fujiwara, a team leader at GBW, that a casual staff member was brought back. Ms Okamoto further said she also heard about the staff member being re-employed from another team leader based in Japan and this information led to her lodging her unfair dismissal application on Sunday 29 January 2017, two days outside of the lodgement period.
Ms Okamoto submitted that when she found out on Friday 27 January 2017 that other GBW staff had been rehired “this revelation thereby called into serious doubt the whole basis for the dismissal”[12]. She further submitted:
· it is obviously contrary to the notion of a job being redundant if the employer then appoints within a short time another person to the same job. It is not a genuine redundancy if the employee could have been redeployed into other work (per s.389(2) of the Act);
· while in the interlocutory stage it may be difficult to test the assertions about the nature of the job or jobs, whether there are any true differences and the suitability of the Applicant to perform it/them if there were differences, this fundamental change from an apparent unremarkable redundancy to a questionable dismissal that is understood to have occurred is a separate and sufficient basis for the Application to be allowed to proceed;
· in Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU (Bananacoast)[13], Deputy President Sams stated he was “satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine… based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act”[14];
· as such, the Commission should follow Bananacoast (in which the extension of time application was granted, appealed but ultimately upheld[15]) and also accept that Ms Okamoto had an “honestly and reasonably held belief” that the redundancy offered to her by GBW was not genuine; and
· if that is accepted, then there is a reasonable basis for the Commission to exercise its discretion to extend the period for lodgement of Ms Okamoto’s application. When the new circumstances were made known to her by a former co-worker, there was a relatively short delay of 2 days from 27 to 29 January 2017, the date Ms Okamoto first learned of the changed circumstances and date of the lodgement of her application[16].
In relation to the second factor, GBW contends that Ms Okamoto’s dismissal was a case of genuine redundancy, due to a restructure of its business. This was because the company had lost half of its Japanese client accounts, with the result that a number of roles were made redundant following the decision to relocate work from Melbourne to an office in Japan. As a result of this, GBW submitted it no longer required Ms Okamoto’s role as Shift Leader to be performed on a permanent and ongoing basis due to the “reorganization and redistribution of tasks which were being performed by her role”[17].
In relation to Ms Okamoto’s submission that GBW rehired a casual employee, it was asserted by GBW that it did not reemploy any former personnel, but instead recruited two employees in its Japan office who were “backfills for employees of which (sic) had voluntarily left the company”[18] prior to Ms Okamoto’s redundancy.
GBW asserted it employed a short-term contractor on a contract running from 1 February 2017 to 9 March 2017 and provided documentation. As such, it submitted it did not re-employ any casual staff members as alleged by Ms Okamoto and nor was there any redeployment of former employees who had been made redundant.
Ultimately, GBW submitted that the reasons advanced by Ms Okamoto as to her delay in lodgement show an ignorance of the relevant timeframe, in circumstances where she evidently had capacity to seek advice and did not contest her dismissal at any time during or after being notified on 6 January 2017. It submitted that Ms Okamoto had ample opportunity to seek advice on her eligibility for unfair dismissal while in Japan between 6 and 23 January 2017 and in the days following her arrival back in Australia on 24 January 2017.
As to the 21 day period, Ms Okamoto’s evidence was she only became aware of it as a result of speaking with friends and visiting the Commission website on 28 January 2017. This was four days after she returned to Australia from Japan and 22 days after she was notified her employment was terminated with immediate effect.
Ms Okamoto’s lack of knowledge of the 21 day requirement to file an unfair dismissal application before this period had expired cannot be regarded as an acceptable reason for the delay in making the application. Mere ignorance of the 21 day requirement is not an exceptional circumstance.[19] However, the evidence is that Ms Okamoto discovered there was a 21 day requirement the day after the 21 days post-termination had expired and then, a further day later, filed the Application.
Further, I am satisfied on the evidence that this came about because Ms Okamoto only formed the view that her termination was not the result of a genuine redundancy after she conversed with former colleagues on 27 and 28 January 2017. Once she was told that GBW was re-engaging a former staff member, a very short period of time elapsed before she filed the Application on 29 January 2017.
Having regard to the fact that she was unrepresented at that time and had to navigate through the information and processes associated with filing an application pursuant to s.394 of the Act without prior familiarity with them, I am satisfied the short delay was understandable. In this regard, I have been guided by the decision of Vice President Watson in Toledo v Foxtel[20].
I am therefore satisfied that Ms Okamoto has provided a reasonable explanation for the delay in lodging her application. This weighs in favour of a finding that there are exceptional circumstances.
Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect;
Ms Okamoto was notified of her dismissal on 6 January 2017 and was aware of its immediate effect. As Ms Okamoto was aware of the dismissal on the day it took effect, she had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c) any action taken by the person to dispute the dismissal;
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[21]
Ms Okamoto conceded she took no action to dispute the dismissal other than to lodge the Application. As discussed above, this is understandable because she only became doubtful about the genuineness of her redundancy upon speaking to former colleagues on 27 and 28 January 2017.
In the circumstances of this case, I do not consider the failure of Ms Okamoto to take action to dispute the dismissal, other than to lodge the Application, weighs against a finding that there are exceptional circumstances.
Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay);
Prejudice to the employer will weigh against granting an extension of time.[22]
Ms Okamoto submitted the lateness of the application has not caused GBW any disadvantage or unfairness. GBW’s submissions on prejudice were an outline of the issues it had with the explanation Ms Okamoto gave for her delay and the merits of the Application.
I do not consider there is any prejudice to GBW due to the two-day delay in the filing of the Application. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[23] In this matter, I consider this criterion to be neutral.
Section 394(3)(e) the merits of the application;
When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[24], it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[25]
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[26] for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.
It is clear from the submissions of the parties and the evidence of Ms Okamoto that the issue of whether her redundancy was genuine is disputed. GBW has indicated its evidence on merits would be to the effect that the redundancy was a result of the loss of clientele and revenue and there were no redeployment options. Ms Okamoto submitted that soon after her employment terminated, GBW re-employed a casual employee in a position that she could have performed.
I am not able to make a final assessment of the merits as the evidence of the parties has not been fully tested. The merits of the Application remain, at this stage, open and the parties’ evidence requires more detailed consideration. I consider this criterion to be neutral.
Section 394(3)(f) fairness as between the person and other persons in a similar position.
In Wilson v Woolworths,[27] it was said of this criterion:
“It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically.”[28]
The question of fairness as between the Applicant and other persons in a similar position was also considered in Morphett v Pearcedale Egg Farm,[29] as follows:
“…cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”[30]
Ms Okamoto submitted that as the Application was filed before the end of the weekend on Sunday 29 January 2017, there can be no claim of disadvantage to anyone and little practical effect. She relied on Perret v Teeth Health Life Dental[31] in this regard.
GBW submitted that the termination of Ms Okamoto’s employment was due to a major operational restructure and all employees affected were notified on the same day, had the same sort of notification meeting, received the same sort of correspondence and were paid the entitlements due to them as at that date. GBW acknowledged that Ms Okamoto was notified while on annual leave but submitted there were three other employees who were being terminated to consider as well.
While I accept there was a desire on the part of GBW to not stagger the communication of the terminations, Ms Okamoto being in in Japan on annual leave did place her at a relative disadvantage compared to other the affected employees who were notified on the same day.
Therefore, in the circumstances of this case, I consider this criterion to weigh in favour of granting an extension of time.
Conclusion
I have concluded that only one of the criteria in s.394(3) of the Act weighs against the granting of an extension of time for the making of Ms Okamoto’s application. Having taken into account the matters referred to in paragraphs [10]-[46] above, I am, on balance, satisfied that there are exceptional circumstances warranting an extension. There is a reasonable explanation for Ms Okamoto’s short delay in lodging her application beyond the 21 day time limit and, on the material before the Commission, there is an unusual feature to her case in that it was only on the 21st day after her termination that she first developed doubts as to the genuineness of her redundancy.
Therefore, I am satisfied there are exceptional circumstances and I will extend the time for Ms Okamoto to make her application to 29 January 2017. An order to this effect will be issued with this decision.
Accordingly, the matter will now be referred for further directions so that the jurisdictional objection to and the merits of Ms Okamoto’s unfair dismissal application can be heard and determined.
DEPUTY PRESIDENT
Appearances:
G Dircks for the Applicant.
S Chen for the Respondent.
Hearing details:
2017.
Melbourne:
May 5.
[1] (2011) 203 IR 1.
[2] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[3] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[5] [2014] FWCFB 2149.
[6] Ibid at [31].
[7] [2015] FWCFB 287.
[8] Ibid at [12].
[9] [2016] FWCFB 349.
[10] Ibid at at [31].
[11] Exhibit A1 at [35]-[37].
[12] Applicant’s Outline of Submissions at [20].
[13] [2012] FWA 7681.
[14] Ibid at [51].
[15] BananaCoast Credit Union Limited v Cross and others [2012] FWAFB 10165.
[16] Applicant’s Outline of Submissions at [21]-[26].
[17] Respondent’s Form F3, question 3.1 at [1].
[18] Respondent’s Form F3, question 3.2 at [5].
[19] (2011) 203 IR 1 at [14].
[20] [2016] FWC 2450.
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[22] Ibid.
[23] Ibid.
[24] Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997].
[25] Ibid at [8].
[26] Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].
[27] Wilson v Woolworths[2010] FWA 2480.
[28] Ibid at [29].
[29] [2015] FWC 8885.
[30] Ibid at [29].
[31] [2016] FWC 8312.
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