Schneider v Apollo Motorhome Holidays Pty Ltd
[2015] FWCFB 1259
•24 MARCH 2015
| [2015] FWCFB 1259 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Apollo Motorhome Holidays Pty Ltd
(C2015/1610)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 24 MARCH 2015 |
Appeal against decision PR560230 of Vice President Hatcher at Sydney on 19 January 2015 in matter number U2014/13150 - public interest not enlivened - permission to appeal refused.
[1] Ms Jacqueline Schneider (the appellant) was dismissed from her employment with Apollo Motorhome Holidays Pty Ltd (the respondent, Apollo Motorhomes) on 5 September 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 9 October 2014.
[2] An unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). The appellant’s application was lodged 13 days outside the 21-day time limit and so it was necessary for her to obtain an extension of time under s.394(3).
[3] On 27 October 2014 the Commission caused a letter to be sent to the appellant informing her of the requirement to seek an extension of time if the application was to proceed; listing the matters which, under s.394(3), the Commission is required to take into account in determining any such application; and seeking a written statement within 14 days explaining why an extension of time should be granted and addressing the criteria in s.394(3)(a) to (f). The appellant provided such a statement on 7 November 2014. The appellant’s extension of time application was the subject of a hearing before Vice President Hatcher on 15 January 2015.
[4] On 19 January 2015 the Vice President issued a decision refusing to grant the appellant an extension of time and dismissing the appellant’s application on that basis1 (the Decision). Ms Schneider seeks permission to appeal the Vice President’s decision and that is the matter before us.
[5] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”4
[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.5 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.6
[8] The appellant’s employment was terminated on 5 September 2014 and she lodged her unfair dismissal application on 9 October 2014. As mentioned earlier, the appellant’s unfair dismissal application was lodged 13 days outside the statutory time limit.
[9] Subsection 394(3) deals with applications to extend time, it provides:
The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[10] The nature of the decision making exercise in relation to an extension of time application pursuant to s.394(3) was described by the Full Bench in Lombardo v Commonwealth of Australia 7 in the following terms:
“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.”
[11] The power to extend time pursuant to s.394(3) can only exercised if the FWC is satisfied that there are ‘exceptional circumstances’. The FWC may be satisfied that the circumstances are exceptional if they are out of the ordinary course, unusual, special or uncommon. 8 In deciding whether there are exceptional circumstances the FWC must take into account each of the matters specified in s.394(3)(a) to (f), insofar as those matters arise in a particular case. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend9 sense of matters which the decision maker is bound to take into account.
[12] Importantly, in s.394(3)(a) to (f) it is not necessary to find that the circumstances pertaining to any of the identified criteria are exceptional, rather the test posited by s.394(3) is whether taking into account all of the relevant specified criteria, there are ‘exceptional circumstances’.
[13] If the FWC is satisfied that there are ‘exceptional circumstances’ then the discretion to extend time is enlivened. It does not necessarily follow from a finding of exceptional circumstances that an application to extend time will be granted, it will always be a matter of discretion.
[14] In the decision subject to appeal the Vice President considered each of the matters specified in s.394(3)(a) to (f). At paragraph [7] of the decision his Honour set out the reasons advanced by Ms Schneider for the delay in lodging her unfair dismissal application:
“[7] Ms Schneider relied upon three matters together as the reason for the delay: that Apollo had “kept her dangling” by indicating that there might be alternative work without actually offering anything; the receipt of information on 7 October 2014 that indicated her redundancy might not be genuine; and her suffering depression after having been dismissed.”
[15] Paragraphs [8]-[10] of the Decision set out the Vice President’s assessment of the reasons advanced by Ms Schneider for the delay in lodging her application:
“[8] I do not consider that the first and third matters either singly or cumulatively with other matters constitute a satisfactory explanation for the delay. On the issue of alternative work, it is reasonably apparent that Ms Schneider was only interested in casual work. Ms Schneider’s disappointment at not being given the casual role which was raised with her on 5 September 2014 is understandable, and some criticism might reasonably be directed at Apollo on that score. However, it was clear by 9 September 2014 that the role was not available. While beyond that point Ms Schneider may have hoped to be offered casual alternative work, there was no evidence that Apollo had any such work to offer her. The position which Ms Schneider saw advertised on 22 September 2014 turned out to be a full-time position, and Ms Schneider clearly expressed a lack of interest in it. Nothing occurred thereafter which could reasonably have indicated to Ms Schneider that she should delay taking action about her dismissal because of the prospect of alternative work.
[9] The medical diagnosis of depression post-dated the making of the application. It refers to the depression being caused by “unfair dismissal”. On Ms Schneider’s evidence, she did not consider her dismissal to be unfair until she saw the email on 7 October 2014. That makes it difficult to attribute the depression as a cause of delay before that time. There is no indication in the evidence that the depression was such as to disable Ms Schneider from making an application; indeed once she saw the email on 7 October 2014 she proved herself able to act promptly and effectively by lodging her application two days later.
[10] The principal matter relied upon by Ms Schneider is the email which she saw on 7 October 2014. From a subjective perspective, it is understandable that the email caused Ms Schneider to conclude that her position had not in fact been abolished and her redundancy was therefore not genuine. She had not been told her job was, effectively, being outsourced to a Filipino call centre, and the reference in her termination letter to her job no longer being required “in Australia” was not sufficiently clear to allow a reasonable inference to that effect. Insofar as Ms Schneider contends that her dismissal was unfair because it was not a genuine redundancy in that her position appeared to still be required to be performed by Apollo, then she had a reasonable explanation for her delay in filing the application. However, insofar as Ms Schneider contends that the other aspects of the genuine redundancy definition in s.389 concerning consultation and redeployment were not satisfied and her dismissal was unfair on that basis also, she has no reasonable explanation for the delay, since the facts relevant to those matters were known to her well before the 21-day period expired.”
[16] At paragraphs [11] to [15] of the Decision the Vice President dealt with other matters which he was required to take into account and made the following findings:
¬ Ms Schneider became aware of her dismissal at the same time it took effect, on 5 September 2014 (s.394(3)(b));
¬ Ms Schneider disputed her dismissal by lodging her unfair dismissal application (s.394(3)(c));
¬ there was no identifiable prejudice to the employer (including prejudice caused by the delay)(s.394(3)(d));
¬ the application was not devoid of merit and was arguable, but did not have good prospects of success in all the circumstances (s.394(3)(e)); and
¬ fairness in relation to any other person in a similar position was not relevant in this particular case (s.394(3)(f)).
[17] The Vice President concluded that having regard to all of the matters which he was required to take into account he was satisfied that there were ‘exceptional circumstances’ within the meaning of s.394(3). In particular, the Vice President observed (at [19]) that,
‘the discovery by Ms Schneider on 7 October 2014 of information relevant to her dismissal on the grounds of redundancy which caused her to doubt the genuineness of that redundancy was sufficiently unusual to constitute exceptional circumstances’
[18] The Vice President went on to consider whether to exercise the discretion to extend time and concluded that ‘it would not be fair or equitable to grant an extension of time’. In reaching that conclusion the Vice President placed particular weight on three matters (set out at [20] of the Decision),:
“(1) Ms Schneider took no action whatsoever to contest or even question her dismissal within the 21-day period or before she filed her application on 9 October 2014.
(2) Subjectively speaking, it is reasonable that Ms Schneider, having seen the email on 7 October 2014, only formed the view at that time that Apollo had filled her position rather than abolishing it and that her dismissal was therefore not a genuine redundancy and was unfair. Objectively however, this principal aspect of Ms Schneider’s case is without merit. It is clear that Apollo outsourced to an independent business in the Philippines the main functions of Ms Schneider’s former position.
(3) Insofar as I have assessed other aspects of Ms Schneider’s case as having some merit and being arguable, they related to matters which were fully known to her well prior to the expiry of the 21-day lodgement period. She has no reasonable excuse for not filing an application in time in relation to those matters.”
[19] Ms Schneider’s submission in support of her application for permission to appeal may be distilled into five points:
(i) In finding that she took no action to contest or question her dismissal within the prescribed 21 day period the Vice President did not give sufficient weight to the fact that she had been misled about the circumstances surrounding her redundancy.
(ii) The Vice President’s findings in relation to the merits of the substantive application are contradictory as he finds that the claim is ‘arguable’ and ‘not devoid of merit’ on the one hand and yet concludes that the substantive application ‘cannot be assessed as having good prospects of success in all the circumstances’.
(iii) It is in the public interest that time be extended as the failure to do so will be seen as condoning a practice whereby an employer fails to consult and misleads employees,”
“If the Decision is upheld and my late application is not accepted, this condones deception and non compliance with the Act on the part of employers who seek to protect themselves from an unfair dismissal action.”
(iv) The appellant was told, and accepted, that the business was not viable yet it continues to operate,:
“Apollo Motorhomes states that they have reduced my salary costs by hiring someone via Beepoo in The Philippines, and they have also reduced paid advertising significantly. But this will not make the business viable, contrary to point [16] of the Decision, that “The business circumstances of Salamanda Travel … provided a legitimate reason for Ms Schneider’s dismissal.” With reduced paid advertising, the sales will be correspondingly lower, which would logically mean that any savings achieved by outsourcing my role and reducing paid advertising will be negated by lower sales. This begs the question, why is this non-viable business being continued when it is clear it will continue to make a significant loss based on the figures provided?”
(v) The Vice President found that during a discussion between the appellant and Sandra Foerster on 9 September 2014 the appellant had ‘expressed a preference for casual work’.
[20] It is convenient to deal with the last point first. The finding referred to is set out at paragraph [5] of the Decision,:
“The facts relevant to the extension of time application were as follows:
... (4) During the weekend, Ms Schneider sent text messages to her former Manager Mr Craig Spencer expressing an interest in the casual position, and on 9 September 2014 contacted Ms Foerster to confirm her interest. However, she was told that the position had already been filled. Unbeknownst to Ms Foerster as at 5 September 2014, the position had in fact been offered to another person that day. In the course of their discussion on 9 September 2014, Ms Foerster mentioned the possibility that another position might become vacant. During the conversation, Ms Schneider expressed a preference for casual work.
[21] The Vice President’s finding is based on evidence given by Ms Foerster during the proceedings, particularly at paragraphs 208-212 in the course of her evidence in chief:
“On 5 September when Ms Schneider was advised of her redundancy, was she also advised that there was an alternative casual position available that she may have been able to fill?---Correct, at the time during that redundancy meeting, it was mentioned to Ms Schneider that there was a casual role advertised. It was also mentioned that the role had been advertised for some time, and that interviews have taken place for that position, and that if she was interested, she would need to indicate fairly quickly or immediately if she wanted to be considered.
What was her response?---At the time, she said she wasn't really interested, but she would consider it over the weekend or she would think about it. I think that's what she said, that's what her words were.
What subsequently happened to that particular vacancy?---Unbeknown to myself, the position actually was offered to an applicant on 5 September on the same day that the meeting actually took place.
So, in effect, there was no alternative position that was available for Ms Schneider to take on?---I cannot exactly determine what time of day the offer was made, but it could be possible that the position was actually already gone.
There's been some mention also of a second position that Ms Schneider became aware of on approximately 23 September. Could you tell us something about that vacancy?---That vacancy became available due to the retirement of one of our full-time permanent GSOs, guest service officer, sorry, and that position was advertised. I did not contact Ms Schneider at the time because she had indicated during the conversation on 9 September, which was the Tuesday following her redundancy, that she wasn't interested - that she was interested in bringing up her own business, which is a translation business, that she was working on that business and that it would have been perfect to have a casual role to supplement her income while she was working on her own business. So she indicated to me in a phone conversation that she wasn't interested in a full-time permanent role, especially one that required overtime and weekend work, and work on public holidays, that she wanted to work on her own business and bring that business back up to working at full speed, so to speak, and while this business was getting back up to running, to just supplement her income with some casual hours up to 20 hours a week. At that time, I didn't contact her about the full-time role because she had already indicated to me that she wasn't interested in that. When she called me about the role and we spoke about it, and I clarified to her that it was a full-time role replacing a full-time member, she again indicated to me that she wasn't interested in a full-time role, and that she wouldn't really want to take that.”
[22] Ms Foerster was cross-examined generally about other available positions, 10 but there was no challenge to Ms Foerster’s evidence that the appellant had expressed a preference for a casual, as opposed to a full time, position. The Vice President’s finding was plainly open on the evidence.
[23] As to point (i), we are not persuaded that the Vice President had given insufficient weight to the fact that Ms Schneider had not been told that her job had been outsourced to an entity in the Phillipines. It is apparent from the Decision (at [5] (part (8)), [10] and [19]) that the Vice President did take this matter into account, indeed it was this matter which led the Vice President to conclude that there were ‘exceptional circumstances’.
[24] As to point (ii) the Vice President deals with the merits of Ms Schneider’s substantive application at [14]-[17],:
“[14] The evidence and other material currently before me is relatively extensive, and it is unlikely that there would be any significant additional material placed before the Commission were Ms Schneider’s application to go to hearing. The main facts are either not in dispute or clearly established by the evidence. It is therefore possible to make a realistic assessment of the merits of the application.
[15] The application of the definition of genuine redundancy in s.386 looms large in relation to this application. That definition has three limbs. The first is a requirement that “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”. That requirement is clearly satisfied here, in that Apollo no longer employs anyone to perform the principal function of Ms Schneider’s role, and has outsourced that function to another employer overseas. Although, subjectively speaking, the email which Ms Schneider saw on 7 October 2014 may have given a different impression, the objective position is quite clear.
[16] It is reasonably arguable however that the second and third limbs of the genuine redundancy definition - that is, the consultation (in this case, as required by the Clerks - Private Sector Award 2010) and redeployment elements - may not have been satisfied in this case. However, it does not necessarily follow from a conclusion that a dismissal on redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair. Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had replaced her. The evidence demonstrates that she was not replaced by Apollo and that her work was outsourced, as earlier explained. She could not therefore obtain a finding of unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s decision to restructure that business, provided a legitimate reason for Ms Schneider’s dismissal.
[17] It would therefore be necessary for Ms Schneider to argue that her dismissal was unfair because of insufficient consultation and a failure to redeploy her to the alternative casual position identified to her on 5 September 2014. That position is not devoid of merit and is arguable, but it cannot be assessed as having good prospects of success in all the circumstances.”
[25] The Vice President placed particular weight on the merits in reaching his conclusion that it would not be fair or equitable to grant an extension of time (see paragraph [18] above).
[26] Contrary to Ms Schneider’s submission we are not persuaded that the Vice President’s observations about the merits of her substantive application are contradictory.
[27] We agree with the Vice President’s assessment that the respondent no longer employs anyone to perform the principal function of Ms Schneider’s former role and accordingly her position has been made redundant. Section 385(d) of the FW Act provides that a person has been ‘unfairly dismissed’ if, among other things, the Commission is satisfied that the dismissal was not a case of ‘genuine redundancy’. The expression ‘genuine redundancy’ is defined in s.389 :
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[28] In determining whether a dismissal is a ‘genuine redundancy’ the Commission is concerned with whether the employer no longer required the person’s job to be performed by anyone ‘because of changes in the operational requirements of the employer’s enterprise’. A decision by an employer to outsource all of an employee’s duties is clearly a redundancy.
[29] The Vice President also observed (at [16] of the Decision) that it was reasonably arguable that the respondent had not consulted with the appellant about the redundancy and had made no effort to redeploy her. In this context the Vice President was referring to two of the elements of the definition of genuine redundancy in s.389. However, the Vice President goes on to say:
“[16] It is reasonably arguable however that the second and third limbs of the genuine redundancy definition - that is, the consultation (in this case, as required by the Clerks - Private Sector Award 2010) and redeployment elements - may not have been satisfied in this case. However, it does not necessarily follow from a conclusion that a dismissal on redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair. Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had replaced her. The evidence demonstrates that she was not replaced by Apollo and that her work was outsourced, as earlier explained. She could not therefore obtain a finding of unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s decision to restructure that business, provided a legitimate reason for Ms Schneider’s dismissal.”
[30] The Vice President then states that if the substantive application proceeded Ms Schneider would need to persuade the FWC ‘that her dismissal was unfair because of insufficient consultation and a failure to deploy her to the alternative casual position identified to her on 5 September 2014’. The Vice President characterised such a submission as ‘not devoid of merit ... but it cannot be assessed as having good prospects of success’.
[31] There is no inherent contradiction in the Vice President’s observations. The first set of observations are directed at whether the dismissal would be regarded as a ‘genuine redundancy’ within the meaning of s.389 and the second are concerned with something quite different - whether the dismissal would be considered to be ‘unfair’ within the meaning of s.387. Nor is there any contradiction in assessing an application as ‘not devoid of merit’ but ‘not having good prospects of success’.
[32] As to point (iii), we are not persuaded that refusing to grant permission to appeal would be contrary to the public interest. The Decision involved the exercise of a discretion based upon a consideration of specified statutory criteria. We are not persuaded that the discretion miscarried or that there was any error in the Vice President’s reasoning. Refusing to grant permission to appeal is based on those considerations and does not, in any way, condone a failure to consult an employee about an impending redundancy. We also note that it would still be open to Ms Schneider to institute proceedings against the respondent for breach of the consultation provisions in the relevant modern award.
[33] As to point (iv), we are not persuaded that this matter is relevant to our consideration of whether to grant permission to appeal.
[34] We are not persuaded that Ms Schneider has established that it is in the public interest to grant permission to appeal. The Vice President addressed the relevant statutory criteria and we are not persuaded that the decision subject to appeal discloses any error of principle or any significant error of fact. Nor are we persuaded that the appellant has established an arguable case of error in relation to any aspect of the decision subject to appeal.
[35] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: Mrs Schneider on her own behalf
The Respondent: Mr T. Kowalski
Hearing details:
Melbourne with video link to Brisbane
18 March 2015
1 [2015] FWC 482
2 (2011) 192 FCR 78 at paragraph 43
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
4 (2010) 197 IR 266 at paragraph 27
5 Wan v AIRC [2001] FCA 1803 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
7 [2014] FWCFB 2288 at [21]
8 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
9 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
10 See Transcript at paragraphs 238-265
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