Sara Hayes v Aldi Foods Pty Ltd as General Partner of Aldi Stores (A Limited Partnership)
[2017] FWC 3458
•11 JULY 2017
| [2017] FWC 3458 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Sara Hayes
v
ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership)
(C2017/2429)
COMMISSIONER LEE | MELBOURNE, 11 JULY 2017 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Introduction
[1] Ms Sara Hayes (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The Respondent to the application is ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) (the Respondent). The application concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant on 9 February 2017, in contravention of the general protections set out in Part 3-1 of the Act. The application was lodged with the Commission on 5 May 2017. As the application was made outside the prescribed period in s.366(1) of the Act, the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.
[2] The matter was listed for Objections Conference/Hearing by Telephone before me on 19 June 2017. Mr Rajesh Saharan was granted permission to appear for the Applicant and Ms Meg McNaughton was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Background
[3] The Applicant commenced her employment with the Respondent on 11 April 2016. The Applicant was notified of her dismissal on 9 February 2017 in writing and the dismissal took effect on 9 February 2017. 1 Therefore, the application should have been lodged on or before 2 March 2017. The application was lodged on 5 May 2017 and is therefore nine weeks and one day out of time.2
[4] On 25 February 2017 the Applicant made an application to the Commission under s.773 of the Act to deal with an unlawful termination dispute which was allocated to Commissioner Williams for conciliation. The Applicant’s s.773 application was filed within 21 days of her dismissal. However, the Respondent objected to the s.773 application on the basis that the employer was a constitutionally covered entity and the Applicant was therefore entitled to make a general protections application under s.365 of the Act. 3
[5] Commissioner Williams conducted a telephone conference in the matter during which the Respondent’s jurisdictional objection was discussed. Subsequent to the telephone conference the Applicant’s representative applied to amend the s.773 application to a s.365 application pursuant to s.586 of the Act. In support of the application the Applicant submitted that it believed the Respondent was not a corporation because her contract and her payslips referred to the Respondent as being a limited partnership. 4
[6] Ultimately, Commissioner Williams dismissed the application to amend on 1 May 2017 concluding that the appropriate course for the Applicant was to discontinue the s.773 application if she sought to make an application under s.365 of the Act. 5 The s.773 application was withdrawn on 3 May 2017 and the s.365 application was subsequently lodged on 5 May 2017.
The law to be applied
[7] Section 366(1) of the Act provides as follows:
“(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).”
[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
“(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.”
[9] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd,6 where the Full Bench stated that:
“[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.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
[10] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
Matters to be taken into account pursuant to section 366(2)
[11] 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
[12] There must be an acceptable explanation for the delay which makes it equitable to so extend. 7 The Applicant needs to provide a credible reason or credible reasons explaining the whole of the period that the application was delayed. 8As outlined earlier in this decision the Applicant filed the s.773 application for the Commission to deal with an unlawful termination dispute within 21 days of the date of her dismissal. The Applicant submits that a S.773 application was made as it believed the Respondent was not a corporation because of particulars provided by the Respondent on the Applicant’s employment contract and payslips. The Applicant submits that both documents referred to the Respondent as a limited partnership. It named the Respondent in the s.773 application as ‘Aldi Stores – A Limited Partnership’ (which was subsequently amended by an order of Commissioner Williams on 1 May 2017).9 The Applicant submits that it would have lodged a s.365 general protections application involving dismissal at first instance if the correct particulars were provided by the Respondent.10 During the hearing the Applicant’s representative asserted that the Respondent had misled or made misrepresentations about the structure of the business.11 At the hearing, the Applicant’s representative confirmed that the entire explanation for the reason for the delay was the alleged misrepresentation from the employer leading to the wrong application being made and that this is an acceptable reason for the delay.12
[13] The Respondent submits that the Applicant was informed that there were jurisdictional issues with the s.773 application during a conference held by Commissioner Williams on 17 March 2017. Further, the Respondent submits that the Applicant was advised about the option to withdraw and make an application under s.365 or s.372 of the Act. 13 However, the Applicant proceeded with the s.773 application and made an application under s.586 of the Act to amend the application made to a s.365 application and the Commissioner directed parties to file submissions addressing the Full Bench decision Peter Ioannou v Northern Belting Services Pty Ltd.14On 1 May 2017 Commissioner Williams dismissed the application to amend concluding he was bound to apply the decision of the Full Bench and it was not permissible to exercise power under s.586 to amend the application.15 A further four days after the decision of Commissioner Williams, the Applicant lodged the s.365 application having discontinued the s.773 application.
[14] In relation to the Applicant’s submission that it believed the Respondent was a partnership, the Respondent submits that it was, at all times, readily apparent that it was a constitutional corporation. The Respondent submits that the ALDI Jandakot Agreement 2015 was attached to the Applicant’s employment contract and it refers to the Respondent as ‘ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership). 16 Further, that there was no obligation or request from the Applicant for the Respondent to supply any particulars about its corporate status.17 The Respondent categorically refutes any suggestion that that there has been any misleading of the Applicant at all, in terms of the name of the employing entity.18
[15] The Applicant’s s.773 application was withdrawn on 3 May 2017 and the Applicant made the s.365 application on 5 May 2017. The decision of Commissioner Williams issued on 1 May 2017 makes clear at paragraph 29 that the appropriate course for the Applicant was to discontinue the s.773 application if she sought to make an application under s.365 of the Act.
[16] The Respondent noted and the Applicant’s representative confirmed that the Applicant was legally represented by him from the time of her initial dispute about the termination. The Respondent submitted that, while it may have been confusing for the Applicant herself, it should have been apparent to the Applicant’s representative that the Respondent was a constitutional corporation. Further, even if that was not the case, the Applicant’s representative was on notice, at least from the time of the conference before Commissioner Williams on 17 March 2017, where it was flagged that the Applicant was covered by a constitutional corporation and the s.773 application was therefore subject to a jurisdictional challenge. Further that the Applicant was advised by Commissioner Williams about the option to withdraw at that time. However, the Applicant’s representative elected to persevere with s.773 the application and attempt to amend the application. 19
[17] It was not submitted by the Applicant that representative error was a reason for the delay. However, having considered the submissions of the parties it became apparent that this was potentially a reason for the delay. At the hearing I put that proposition to the parties for their comment. The Applicant’s representative submitted that he disagreed that there was representative error. 20 The Respondent’s representative submitted and I agree that if the Applicant is not recognising that there has been representative error then there is no basis for the Commission to make a decision confirming that.21
[18] Having considered the submissions, I do not accept the submission of the Applicant’s representative that the Respondent has misled the Applicant in respect to the corporate status of the Respondent. It would have been apparent to the Applicant’s representative that the Respondent was a constitutional corporation had he undertaken even the most basic of enquiries. In any case, it is clear that having made that oversight at the time of lodging the application, the Applicant’s representative was on notice from 17 March 2017 after the conference before Commissioner Williams was conducted that the Respondent was asserting that it was a constitutional corporation. However, the Applicant’s representative elected to persevere with the s.773 application and unsuccessfully sought to have the application amended to a s.365 application. This is not an acceptable reason for the delay. The Applicant’s representative has elected to take this approach. The election of the Applicant’s representative to make a particular application which was the incorrect application is not of itself an acceptable reason for the delay.
[19] I am not satisfied that the Applicant has provided an acceptable explanation for the delay. This weighs against a finding of exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[20] Any action taken by an employee to contest the dismissal, other than lodging the general protections application, will show that the decision to terminate is actively contested and may favour the granting of an extension of time. 22 In this matter, it is not contested that in lodging the s.773 application, that the Applicant was taking action to contest the dismissal.23 While it was the wrong application, it nevertheless represents clear action to dispute the dismissal. This factor weighs in favour of granting the extension.
(c) Prejudice to the employer (including prejudice caused by the delay)
[21] Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time. 24 The Respondent submits that it would be prejudiced having to respond to the application should the extension be granted.25 The Respondent submits that it has spent considerable time and incurred expenses in responding to the s.773 application, attending the conference conducted by Commissioner Williams on 17 March 2017, filing submissions in relation to the jurisdictional issues relating to the s.773 application, providing a response to the s.365 application and filing submissions in relation to the extension of time.26
[22] The Applicant submits that the Respondent has been on notice since the s.773 application was made and would not suffer any injustice if the extension of time was granted, however, that the Applicant would suffer significant injustice if she did not have the opportunity to have her s.365 application heard. 27
[23] I am satisfied that the Respondent would suffer some prejudice if an extension of time were granted. However, I am not satisfied that the prejudice would be significant and is a neutral consideration.
(d) Merits of the application
[24] The Applicant submits that there is merit to her application, and to the remedy sought.
[25] The Respondent submits that the Applicant was dismissed from her employment due to poor performance and that the Applicant’s termination was not linked in any way to the complaint she made alleging bullying and harassment which she subsequently withdrew. The Respondent also submits that the termination was not linked to the Applicant’s absence due to temporary illness or injury nor to the Applicant’s request for training. 28
[26] I am satisfied that the Applicant’s application may well have some merit depending on the determination of relevant factual matters. However, for the purposes of determining an extension of time application the Commission should not embark on a detailed consideration of the substantive application. 29 In the circumstances, I consider this factor to be a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[27] The consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past. 30 There were no submissions that there is, or has been, any persons in a similar position to the Applicant. Accordingly, I regard this factor as neutral.
Conclusion
[28] Having considered all of the factors set out in s.366(2), I am not satisfied that there is an acceptable reason for the delay and this weighs against granting an extension of time. Only the action taken to dispute the dismissal weighs in favour of granting the extension and other factors are neutral considerations. Considering the factors overall, 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.
[29] An order will be issued concurrently with this decision.
COMMISSIONER
Appearances:
R Saharan for the Applicant
M McNaughton for the Respondent
Hearing details:
2017.
Melbourne (Telephone Hearing):
19 June.
Final written submissions:
13 June 2017
1 PN62 - PN63
2 PN64 - PN65
3 Sara Hayes v Aldi Stores – A Limited Partnership[2017] FWC 2369 [3]
4 [2017] FWC 2369 [4] and [6]
5 [2017] FWC 2369 [28]
6 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
8 Cheval Properties Pty ltd v Smithers (2010) 197 IR 403, 408-409
9 PR592527
10 Applicant’s Outline of argument: Extension of time at Q1d
11 PN21
12 PN51 - PN52
13 Respondent’s Outline of argument: Extension of time at Q1e.3
14 Peter Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660
15 [2017] FWC 2369
16 Respondent’s Outline of argument: Extension of time at Q1e.8
17 Respondent’s Outline of argument: Extension of time at Q1e.9
18 PN112
19 PN118
20 PN183 - PN184
21 PN186
22 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
23 PN126
24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
25 PN118
26 Respondent’s Outline of argument: Extension of time at Q1g
27 Applicant’s Outline of argument: Extension of time at Q1d
28 Respondent’s Outline of argument: Extension of time at Q1h
29 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
30 Markos Wilson v Woolworths[2010] FWA 2480 [24] – [29]
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