Rachel Denman v Red Star Coffee

[2015] FWC 7817

[2015] FWC 7817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Denman
v
Red Star Coffee
(U2015/12464)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Rachel Denman alleged that the termination of her employment by Red Star Coffee Pty Ltd on 5 October 2015 was unfair. Ms Denman’s application lodged on 27 October 2015 was not made within 21 days of the date of the dismissal.

[2] 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.

[3] 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;

[1] Ms Denman filed documentation with the Commission on 26 October 2015 but did not attach the unfair dismissal application form. Ms Denman paid the filing fee the same day. She advised that she attached the application form but it did not go through. It appears that Ms Denman uploaded her termination letter twice instead of uploading the application form. When advised by the Commission she filed the application form on 27 October 2015. That application form was dated 26 October 2015.

[2] Ms Denman gave evidence that she sought legal advice in relation to her application and that she was not able to make an appointment until 26 October 2015. Further she advised that she contacted Fair Work and was not told that she had 21 days to lodge her application.

[3] I accept that Ms Denman advice that she had thought she had uploaded the form to the Commission’s website and was not aware that it had not been uploaded until she was advised by the Commission. She then acted promptly and uploaded the form.

[4] Ms Pearson for Red Star Coffee submitted that the delay was caused by Ms Denman waiting until the last minute to make her application and that she should have allowed sufficient time to accommodate problems with uploading the form. She submitted that Ms Denman went on holidays after the dismissal on 7 October 2015. Ms Pearson submitted that Ms Denman had sufficient time to lodge her application.

[5] I am satisfied that Ms Denman had a reasonable explanation for the delay in lodging the application. While it is not unusual for applicants to have difficulty getting legal advice in the 21 days provided for by the legislation I am satisfied that her mistake in lodging one document twice instead of the application form was out of the ordinary. Clearly Ms Denman intended to lodge her application in time. This weighs in favour of a finding that there are exceptional circumstances.

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

[6] Ms Denman was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[7] Ms Denman did not take any action to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.

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

[8] Ms Pearson submitted that there would be prejudice because Red Star Coffee had already had to spend money responding to the application. Further this was a small business. I do not consider that any prejudice to the employer is sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[9] Ms Pearson submitted that it had complied with the Small Business Fair Dismissal Code and this was a genuine redundancy. Ms Pearson submitted that Ms Denman’s position of Client Relationship representative was not covered by a modern award and that there was no position to which Ms Denman could be redeployed. She said that she looked at a number of models for the business and had advertised for a Sales Manager. It was her evidence that she decided not to proceed with this model rather she decided that her full time driver would take on some of Ms Denman’s duties and her remaining duties would be undertaken by other staff. She gave evidence that since the termination of Ms Denman’s employment no additional staff have been employed. Ms Pearson submitted that Ms Denman’s work was not covered by any modern award.

[10] Ms Pearson accepted that this dismissal did not involve any issue of performance or misconduct so I am unable to find that the dismissal was consistent with the Small Business Fair Dismissal Code.

[11] Ms Denman submitted that Red Star Coffee had advertised her position before she was made redundant. She submitted that the redundancy was not genuine. She submitted that there had been no consultation with her and that she only found out about the restructure at time she was told her employment was to end. Ms Denman submitted she had been told she was covered by the “Sales Award” but she was unsure about what modern award applied to her work.

[12] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. If Ms Denman is covered by an award and I am not able to resolve this dispute at this time then there is an arguable case that the consultation obligations were not complied with. I consider this criterion to be neutral.

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

[13] This criterion is neutral.

Conclusion

[14] I am satisfied that there are exceptional circumstances. Ms Denman has provided a reasonable explanation for the delay. Her case is not unarguable and any prejudice to the employer is not such as to weigh against the finding of exceptional circumstances. I order that the time for Ms Denman to lodge her application be extended to 27 October 2015 and the application be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

R Denman on her own behalf.

M Pearson on behalf of the Respondent.

Hearing details:

2015.

Melbourne via telephone:

11 November.

 1   [2011] FWAFB 975

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