Narelle Armstrong v Police Citizens Youth Clubs T/A PCYC

[2016] FWC 766

[2016] FWC 766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Narelle Armstrong
v
Police Citizens Youth Clubs T/A PCYC
(C2015/7396)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 5 FEBRUARY 2016

Application to deal with contraventions involving dismissal.

[1] On 18 November 2015 Ms Narelle Armstrong (the Applicant) lodged a General Protections application involving a dispute pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Police Citizens Youth Club T/A PCYC (the Respondent).

[2] The Applicant commenced employment in February 2000. She was a part-time Senior Activities Officer in the Respondent’s programs in the Newcastle area. She says that she was dismissed on 15 October 2015 and the dismissal took effect on that day.

[3] The application was some 13 days out of time.

Alleged Contravention

[4] The Applicant says that she was dismissed because she had attempted to exercise her workplace rights. She also claimed that there had been discrimination based on her age. A breach of ss.340, 344 and 351 was alleged.

Respondent’s Submissions

[5] The Respondent submits that the Applicant was terminated because of a genuine redundancy. The Respondent further state that it had complied with its consultation obligations with respect to employees and the relevant union.

Relevant Legislation

[6] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Approach of the Commission

[7] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[8] On 23 November 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 18 January 2016.

[9] The Applicant was self-represented. The Respondent was represented by Ms L. Street, who was granted permission to appear as a paid agent.

Matters to be taken into account pursuant to s.366(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] The Applicant’s explanation for lodging 13 days out of time was essentially her medical condition. However, no evidence was provided other than a medical certificate for one day. This day was prior to her termination.

[12] Accordingly, the reasons for delay cited by the Applicant fall well short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[13] It appears that the Applicant contested that she should have been made redundant. She contacted people who were associated with the Respondent alleging that she had been forced to sign the redundancy form following her termination.

[14] It appears therefore, that the Applicant took some limited steps to press her case prior to lodging the s.365 application.

(c) Prejudice to the employer (including prejudice caused by the delay

[15] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[16] The Applicant alleges the redundancy device was really a device to get her out of the workplace. She complains of lack of notice and unfair process in a similar manner to that which is usually put forward in an unfair dismissal case. It is difficult to see the likely link with a breach of ss. 340, 344 or 351.

[17] The Respondent, on the other hand, outlined the consultation process that it went through to implement redundancies following its operational review. It is not apparent that this was anything other than a genuine redundancy.

[18] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[19] This factor was not addressed and has not been taken into account.

Conclusion and Order

[20] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Narelle Armstrong under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

N. Armstrong, applicant.

L. Street, for the respondent.

Hearing details:

2016

January 18 (by telephone)

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