Robyn Atkins v Manjimup Bakery Pty Ltd

[2015] FWC 4038

[2015] FWC 4038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Robyn Atkins
v
Manjimup Bakery Pty Ltd
(C2015/1317)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 16 JUNE 2015

Application to deal with contraventions involving dismissal.

[1] Ms Robyn Atkins (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 14 January 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the Manjimup Bakery Pty Ltd (the Respondent) in contravention of the general protections provisions of the Act. As the application had been lodged 56 days outside the statutory timeframe for lodgement, the Commission issued Directions on 23 January 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the directions.

[3] The application was the subject of a hearing on 9 June 2015. At the hearing Ms Nicole Young appeared with permission for Ms Atkins, while Mr Stephen Edwards appeared with permission for the Respondent.

[4] For the reasons set out below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Ms Atkins commenced employment with the Respondent on 10 January 2009 as a casual bread wrapper/packer.

[6] Ms Atkins states in her application that over the years she made a number of verbal enquiries about the award she was employed under but did not receive a clear answer. On 31 May 2014 she received advice from her supervisor that she was paid pursuant to the Food, Beverage and Tobacco Manufacturing Award 2010. Ms Atkins further states that from late June to late September 2014 various pieces of correspondence were exchanged between her and the Respondent regarding her entitlements, with Ms Atkins alleging that she had been underpaid.

[7] Ms Atkins also contends in her application that in mid-August 2014 her Saturday shifts were withdrawn as a result of her enquiries. The Respondent states that this was due to the loss on 31 May 2014 of a contract with the local IGA supermarket for the supply of breadlines. This was the reason given in a letter of 12 August 2014 from the Respondent to Ms Atkins advising that she would no longer be required to work on Saturdays. Ms Atkins also alleges in her application that after formally enquiring about her entitlements she was subject to bullying and harassment in the workplace.

[8] There was an incident in the workplace on 28 October 2014 after which Ms Atkins left the workplace. Ms Atkins was dismissed on 29 October 2014. The termination letter states:

“... In choosing to abandon your employment, and act in a rude and offensive manner you have displayed serious and unacceptable misconduct and as a result your employment with Manjimup Bakery has been terminated with immediate effect. Your attitude at work during recent weeks and particularly since presenting your allegations of underpayment of wages to us has been negative and rude, one minute laughing and joking and the next minute making false accusations about your treatment by us.

...

This is a regrettable turn of events but we are not prepared to accept your unacceptable attitude and behaviour any further.”

[9] Ms Atkins lodged a complaint with the Fair Work Ombudsman (FWO) in October 2014 regarding the alleged underpayments. A FWO mediation took place on 5 November 2014 but failed to resolve Ms Atkins’ concerns regarding alleged underpayments.

[10] Ms Atkins subsequently sought legal advice on 14 November 2014. On 5 December 2014 her representative wrote to the Respondent’s representative. That letter stated among other things that:

“We have taken instructions from our client and advised her that she has grounds to bring claims against the employer in relation to:

1. Unpaid wages,
2. Compensation in relation to:

a. Adverse Action taken against her by the employer because she exercised her workplace right to inquire about and later challenge her entitlements (including changing her job to her disadvantage, using threats or coercion, and dismissing her), and
b. Injury she has suffered due to bullying and harassment in the workplace.

We advise we will delay filing our claim for a further 14 days from the date of this letter in the hope that a satisfactory resolution of all claims by our client against the employer may be achieved.”

[11] Further correspondence was exchanged between the parties but did not result in a mutually acceptable resolution. Following a response dated 9 January 2015 from the Respondent’s representative which did not address the alleged adverse action, Ms Atkins instructed her representative to lodge a general protections application under s.365 of the Act. As previously noted, the application was received by the Commission on 14 January 2015, 56 days outside the statutory timeframe for lodgement.

The Relevant Legislation

[12] 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.”

Whether to allow a further period for the application to be made

[13] 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

[14] Ms Atkins submitted that the reason for the delay in lodging her application was that she was pursuing a claim with the FWO and that she believed a settlement in relation to all issues arising out of her employment with the Respondent was imminent. Ms Atkins further submitted that, although she was not prevented from pursuing an adverse action claim while her underpayment dispute remained unresolved, the settlement of either claim would be seriously impacted by the existence of the other claim. It was for this reason, Ms Atkins submitted, that she chose to delay filing her application with the Commission.

[15] At the hearing, Ms Atkins submitted that she sought legal advice from her representative on 14 November 2014 and decided not to lodge her application within the statutory timeframe as she was interested in negotiating in good faith with the Respondent a resolution of all the issues in dispute. However, Ms Atkins submitted that as soon as it became clear that a settlement was unlikely she instructed her representative to lodge her general protections claim with the Commission.

[16] It was noted by the Respondent that Ms Atkins’ application indicated that she had received legal advice in relation to her circumstances on 14 November 2014 and was advised of the possibility of an adverse action claim. According to the Respondent Ms Atkins:

“...took a deliberate, measured, fully informed and conscious tactical decision not to commence proceedings for adverse action well knowing the existence of and legal implications involved in ignoring the time limit.”

[17] The Respondent submitted that Ms Atkins’ decision was not induced by anything said or done by it and that therefore Ms Atkins must bear responsibility for her decision. The Respondent rejected Ms Atkins’ contention that a settlement of the underpayment claim would be ‘seriously impacted’ by the existence of an adverse action claim, noting that the causes of the actions are distinct and the remedies different, and that a deed could be drafted to settle a claim for unpaid wages whilst an Applicant contemporaneously pursued an unfair dismissal or general protections claim.

[18] At the hearing, the Respondent submitted, inter alia, that where an applicant makes a conscious decision to ignore a statutory timeframe he or she then faces an enormous hurdle to make out exceptional circumstances.

[19] From the above it is clear that Ms Atkins made a conscious and deliberate decision on 14 November 2014 not to lodge her application within the statutory timeframe. This weighs very heavily against a finding that exceptional circumstances existed.

[20] I note that following a dismissal the parties often explore the scope for a mutually acceptable settlement of a dispute relating to the dismissal. The continuation of such discussions does not however preclude the making of an application under the general protections provisions of the Act within the statutory timeframe while such discussions remain on foot. In this case it was open to Ms Atkins to have instructed her representative on 14 November 2014 to lodge her general protections application and to seek to resolve her underpayment claim in a way that reserved her ability to pursue her general protections application. Had she done so and had the application subsequently been lodged on or before 19 November 2014, it would have been lodged within time.

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

[21] Ms Atkins contends that she made a number of attempts to dispute her dismissal within the statutory timeframe for lodgement, though no evidence was provided to support this contention. While it is contended that she instructed her solicitor to advise the Respondent’s representative on 14 November 2014 that she was contemplating lodging a general protections application, this did not occur until the letter from Ms Atkins’ representative to the Respondent of 5 December 2014. At the hearing, Ms Atkins’ legal representative submitted that the delay in communicating this possibility to the Respondent was to do with the her administration rather than as a result of anything that Ms Atkins did or did not do.

[22] The Respondent contends that the first time that the possibility of action arising from the dismissal was raised with it was in the letter from Ms Atkins’ representative of 5 December 2014. The Respondent highlighted that the letter was not finalised until after the 21-day statutory timeframe had already expired. The Respondent further submitted that it was in fact unaware of any threat of action arising from Ms Atkins’ dismissal until 11 December 2014 when the Respondent’s representative spoke to one of the Respondent’s directors.

[23] Based on the above, it would appear that Ms Atkins took limited action to dispute her dismissal until she sought legal advice on 14 November 2014.

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

[24] Ms Atkins contended that the Respondent has not suffered any prejudice as a result of the delay.

[25] The Respondent did not contend that it had suffered or would suffer prejudice as a result of the delay, though it noted that the mere absence of prejudice to the employer is not a sufficient basis to grant an extension of time 1.

[26] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[27] Ms Atkins submits that the nature of her claim is highly meritorious as the termination letter specifically refers to the workplace complaint lodged by her and acknowledges that her complaint was accompanied by an attitude that warranted dismissal.

[28] The Respondent contends that Ms Atkins’ application lacks merit because she abandoned her employment.

[29] The limited material before the Commission suggests that Ms Atkins’ application is not without merit.

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

[30] Ms Atkins submitted that it is fair that an applicant who holds a belief that the disputes arising out of their employment have a real prospect of being resolved between the parties without the need to involve the Commission ought be allowed to pursue those negotiations and attempt to reach an agreement without their efforts being distracted by the requirements to submit and respond to a claim before the Commission.

[31] The Respondent made no submissions in this regard.

[32] I consider this factor to be a neutral consideration. I do not concur with Ms Atkins’ submissions on this point for the reasons outlined at paragraph [20] above.

Conclusion

[33] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:

“[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.”

[34] Having considered all of the factors set out in s.366(2), and drawing on Nulty, 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) of the Act. In this case, Ms Atkins made a conscious decision on 14 November 2014 not to lodge her application within the statutory timeframe in circumstances where she could clearly have done so.

[35] Accordingly, the application cannot proceed and is therefore dismissed. An order to this effect [PR568382] will be issued with this decision.

Appearances:

N Young for the Applicant.

S Edwards for the Respondent.

Hearing details:

2015.

Canberra:

June 9.

 1   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299.

 2   [2011] FWAFB 975

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