Nyrene Demaria v SG & Et Snowdon T/A Meriben Park

[2015] FWC 7786

[2015] FWC 7786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nyrene Demaria
v
SG & ET Snowdon T/A Meriben Park
(U2015/13349)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mrs Nyrene Demaria alleged that the termination of her employment by SG & ET Snowden T/A Meriben Park on 31 July 2015 was unfair.

[2] Her unfair dismissal application lodged on 5 October 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd  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]

(a) the reason for the delay;

[5] Mrs Demaria said that she did not lodge her application form because her husband had a workers compensation claim on foot and she thought he was still employed. As she considered that she was jointly employed with him she could not lodge an application until that was resolved. It was her evidence that the workers compensation claim was resolved on 22 August 2015. However her application though signed on 25 August 2015 was not posted until 30 September and was not lodged with the Commission until 5 October 2015. Mrs Demaria had no explanation for that delay. Mrs Demaria submitted that she was not well educated and she was trying to have the question of whether she was an independent contractor resolved through the office of the Fair Work Ombudsman. She also said that upon losing the job she had to move out of the house and move back into her own home.

[6] I am not satisfied that Mrs Demaria has a reasonable explanation for the whole of the delay. Even if I accepted that it was reasonable for her to wait until her husband’s workers compensation claim was resolved, there was no explanation about why after that was resolved the application was not promptly lodged. The Australia Post tracking information discloses that the form was not received by Australia Post until 30 September. Mrs Demaria was unable to explain this delay.

[7] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] Mrs Demaria was aware of the dismissal when it took effect and had the full 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[9] Mrs Demaria said she tried to speak to Mr Snowden but he would not talk to them. Further, she lodged a complaint with the Fair Work Ombudsman about their employment status. It is not clear from Mrs Demaria’s evidence when she went to the Fair Work Ombudsman. It is clear that there were discussions between the parties prior to the dismissal and it is clear that she was unhappy at the dismissal. This weighs in favour of a finding that there are exceptional circumstances.

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

[10] Mr Snowden gave evidence that the partnership that employed Mrs Demaria had been wound up and if he had to go through the process it would be stressful. I consider this criterion to be neutral.

(e) the merits of the application;

[11] Mr Snowden disputed that Mrs Demaria was an employee. It was his evidence that he had a contract with the JJ and NJ Demaria (ABN 26143266364) which was paid $11,000 per calendar month (inclusive of GST) from October 2012 to manage the farm. Included in the contract package were a house, power and milk. It was his evidence that the contract price was $165,145 (inclusive of GST).

[12] It was his evidence that he terminated the contract because the partnership entered into an agreement with his sons to take over the management of the farm and entered into a succession plan. It was his evidence that the farm was on the market the entire time Mrs Demaria was engaged and it did not come off the market until 1 June 2015. Mr Snowden gave evidence that he received an offer to buy the farm on 29 May 2015. After discussing it with his sons it was decided that they would take over the farm via a succession plan. As a result he told Mr Demaria on 1 June 2015 that this was going to occur and that he would be terminating Mr and Mrs Demaria’s contract. An email was sent which Mrs Demaria said was received on 7 July 2015 advising that they would finish up on 31 July 2015. The partnership which employed Mrs Demaria has been wound up.

[13] If Mrs Demaria was an employee Mr Snowden submitted that the termination of her employment was a genuine redundancy.

[14] He further submitted that Mrs Demaria earned more than the high income threshold and the business was a small business and the dismissal was consistent with the code.

[15] Mrs Demaria submitted that she was an employee. While she was of the view that she was jointly employed with Mr Demaria she says they were employed to manage the farm and they did not have a written contract. Mrs Demaria submitted that she had no notice that the farm was going to be sold. She understood that in 2014 it had been agreed by the family that a 10 year plan would be put in place and that she and her husband had ongoing employment.

[16] Mrs Demaria submitted that she and her husband had worked hard and had turned the farm around. It was her evidence that if she and her husband had known their jobs were not safe Mr Demaria would have accepted other work.

[17] There is clearly a factual difference between the parties about Mrs Demaria’s employment status.

[18] A decision to hand over the management of the farm to his sons may constitute operational reasons for the dismissal. The succession plan is not in evidence before me. Mr Snowden did not explain the nature of the agreement between him and his sons and whether he will remain an owner of the business. He was clear however, that he was not employing his sons. There were no submissions put that a modern award applied to the work. It is therefore not clear if the partnership was obliged to consult with Mrs Demaria once the decision had been made.

[19] I am not able to make any assessment of the merits of this matter as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[20] No relevant submissions were made on this criterion.

Conclusion

[21] I am not satisfied that there are exceptional circumstances. Mrs Demaria has not provided a reasonable explanation for the delay. This is not a case where the merits of the case are such as to outweigh the lack of a reasonable explanation for the delay. That Mrs Demaria disputed the dismissal is not of itself sufficient for a finding of exceptional circumstances. Accordingly Mrs Demaria’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

N Demaria on her own behalf.

S Snowdon on behalf of the Respondent.

Hearing details:

2015.

Melbourne via telephone:

10 November.

 1   [2011] FWAFB 975

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