Selena Rubeck v Bliss Organics Hair Studio

[2015] FWC 7762

[2015] FWC 7762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Selena Rubeck
v
Bliss Organics Hair Studio
(C2015/5657)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 11 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 13 August 2015 Ms Selina Rubeck (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Bliss Organics Hair Studio (the Respondent).

[2] The Applicant commenced employment with the Respondent on 20 January 2015. She was a casual hairdresser at the Respondent’s hair salon at Hervey Bay, Queensland. She says that she was told verbally that she was no longer required on 17 July 2015 but was not terminated until she received a separation certificate on 27 July 2015.

Alleged Contravention

[3] The Applicant submits that she was discriminated against because of her pregnancy in breach of s.351 of the Act.

Respondent’s Submission

[4] The Respondent says that the Applicant was dismissed by its salon manager on 17 July 2015 in a conversation in the salon. She was told in later text message exchanges that the separation certificate was waiting for her. The Respondent denies that the Applicant was dismissed because of her pregnancy but because of performance and availability issues that well pre-dated her pregnancy.

Relevant Legislation

[5] 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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[7] On 11 September 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 2 November 2015.

[8] The Applicant was self-represented. The Respondent was represented by Mr Nicholas McKeown, the owner of the studio.

Matters to be taken into account pursuant to s.366(2)

[9] 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

[10] The issue in dispute is the date of the dismissal. The evidence indicates that the Applicant was dismissed on 17 July in the conversation with the salon manger. The Applicant appears to have accepted this in her requests for the documentation relating to the dismissal. The Applicant was therefore seven days out of time. She filed after she received legal advice.

[11] The reasons for delay cited by the Applicant fall well short of establishing exceptional circumstances.

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

[12] Text message discussions relating to the documentation took place after 17 July. The alleged reason for the dismissal was not mentioned.

[13] The evidence of these discussions does not support a finding that there were exceptional circumstances.

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

[14] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[15] The Applicant did not provide convincing evidence about the reason for the dismissal. On the other hand, the Respondent emphasized the casual nature of the Applicant’s employment and the issues that had been apparent with respect to the Applicant’s performance and availability for work for some time.

[16] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[17] This factor was not addressed and has not been taken into account.

Conclusion and Order

[18] Having considered all of the factors set out in s.366(2), 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.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Selina Rubeck under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

S.L. Rubeck, Applicant.

N. McKeown, Respondent.

Hearing details:

2015

Telephone Hearing:

November 2.

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