Sharon Jones v Bunnings Group Limited T/A Bunnings

[2016] FWC 1954

[2016] FWC 1954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sharon Jones
v
Bunnings Group Limited T/A Bunnings
(C2015/6800)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 30 MARCH 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Sharon Jones (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 2 October 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Bunnings Group Limited T/A Bunnings (Bunnings – the Respondent) on 21 August 2015 in contravention of the general protections provisions in the Act.

[2] As the application had been lodged twenty one days outside the statutory timeframe for lodgement, the Commission issued Directions on 22 October 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.

[3] The extension of time issue was the subject of a telephone hearing on 26 November 2015. At the telephone hearing, Ms Jones appeared on her own behalf, while Ms Niki Howells-Schramm of the Victorian Employers’ Chamber of Commerce and Industry appeared for Bunnings.

[4] For the reasons set out below, I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Ms Jones commenced employment with Bunnings at its Port Kennedy complex in Western Australia on 4 March 2015. Ms Jones, who initially worked 30 hours per week, contended that she took the job on the understanding that her hours would increase to 34 hours per week after three months. When this did not eventuate Ms Jones contended that she indicated to Mr Noel Desouza, the Operations Manager at the Port Kennedy complex, on 31 July 2015 that she would raise the issue with her union, the Shop, Distributive and Allied Employees Association (SDA). Ms Jones further contended that she was advised by Mr Desouza that “there will be consequences” if she raised the matter with the SDA.

[6] Bunnings contended that on 5 May 2015 Ms Jones met with Mr Brien Mitchell, the Port Kennedy Complex Manager, as part of her Qualifying Review, with Mr Mitchell expressing the view that Ms Jones met “few expectations.”

[7] On 13 August 2015 Mr Desouza met with Ms Jones to discuss a complaint from another staff member regarding her attitude and behaviour towards them.

[8] On 14 August 2015 Ms Jones contacted the SDA.

[9] Ms Jones was subsequently dismissed on 21 August 2015 on the basis that she had failed to meet expectations during her six month probationary period, with the Employment Separation Certificate issued by Bunnings stating that Ms Jones was “Unable to carry out the job unable to perform all requirements.” 1

[10] On 11 September 2015 Ms Jones wrote to Ms Maree Fiore, a Human Resources Advisor with Bunnings, regarding her dismissal 2. Among other things, the letter requested a meeting with Bunnings and indicated that Ms Jones would be “seeking re-employment or compensation” and that the SDA would be attending “head office” that day to discuss the matter.

[11] In subsequent developments:

• the SDA emailed Ms Fiore on 16 September 2015 regarding Ms Jones;



• Ms Fiore emailed Ms Jones on 22 September 2015, stating “After an investigation into your employment history, we are not in a position of re instating or compensating you for lost earnings” 3; and

on the same day, Ms Jones contacted the Commission and was given information about making a general protections application, including information about the statutory timeframe for making an application.

[12] As previously noted, Ms Jones’ general protections application was received by the Commission twenty one days outside the statutory timeframe specified in s.366(1)(a) of the Act. In her application, Ms Jones alleged that she was dismissed in contravention of ss.340, 343 and 344 of the Act which deal respectively with protection concerning the exercise or otherwise of a workplace right, coercion regarding the exercise or otherwise of a workplace right and undue pressure or influence.

The Relevant Legislation

[13] 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

[14] 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

[15] Ms Jones submitted that she had no reason to lodge her application prior to when she did as she had been assured by the SDA that it was handling her case. Ms Jones further submitted that the reasons for the delay between 22 September 2015, i.e. the date on which she was informed by the Commission of the statutory timeframe for making a general protections application, and 2 October 2015 when her application was received by the Commission were that:

• she needed to configure her evidence in a logical fashion and sort through text messages and emails;



• as she did not have a computer she needed to travel to and from her daughter’s residence to use her daughter’s computer to prepare her application;



• she was looking for new employment;



• she had to make a claim for social security benefits with Centrelink; and



• she was seeking medical assistance following her dismissal.

[16] At the telephone hearing, Ms Jones contended that she thought the matter would be resolved without the need for her to make an application and in response to questions from the Commission acknowledged that she did not instruct the SDA to lodge a general protections application on her behalf. Ms Jones also submitted that the SDA had not informed her of the 21 day timeframe for making a general protections application.

[17] Bunnings submitted that waiting for an internal (or external) review of the grounds for termination or a decision to terminate is not an exceptional circumstance warranting an extension of time. Bunnings also submitted that representative error could not be argued in this case as there was no evidence that Ms Jones had instructed the SDA to lodge a general protections application.

[18] While Ms Jones did not explicitly rely on representative error as the reason for the delay in lodging her application, in circumstances where Ms Jones acknowledged at the telephone hearing that she did not instruct the SDA to lodge a general protections application on her behalf, I note that such a submission could not be sustained.

[19] Similarly, while Ms Jones did not explicitly rely on her ignorance of the 21 day timeframe for making a general protections application prior to 22 September 2015 as the reason for the delay in lodging her application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 4a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[20] As to the delay between 22 September 2015, i.e. the date Ms Jones was informed by the Commission of the statutory timeframe for making a general protections application, and 2 October 2015 when Ms Jones’ application was received by the Commission, the decision by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 5 (Cheval) that an employee needs to provide a credible reason for the whole of the period that the application was delayed. An examination of the reasons cited by Ms Jones does not point to anything unusual or exceptional about the reasons cited by Ms Jones. For instances, most employees who have lost their job seek alternative employment following their dismissal. Accordingly, I am not satisfied that Ms Jones has provided a credible reason for the whole period of the delay in lodging her application.

[21] The above analysis, together with the decisions in Nulty and Cheval, does not support a finding of the existence of exceptional circumstances.

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

[22] Ms Jones submitted that she disputed the dismissal, both through representations made by the SDA and by way of her letter of 11 September 2015.

[23] Bunnings did not dispute that Ms Jones took some steps to dispute her dismissal.

[24] I note that Ms Jones’ letter to Ms Fiore of 11 September 2015 which disputed her dismissal was sent on the twenty first day after her dismissal. While the material before the Commission indicates that there was an exchange of text messages between Ms Jones and the SDA regarding the abovementioned letter, there is no material before the Commission which indicates that the SDA contacted Bunnings prior to the letter being sent to discuss Ms Jones’ dismissal.

[25] The above analysis does not point to the existence of exceptional circumstances.

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

[26] Ms Jones submitted that Bunnings would not suffer any prejudice were an extension of time granted.

[27] Bunnings submitted that it will suffer prejudice in having to defend a claim which it would not otherwise have to address, contending that at the very least the issue of prejudice should be considered a neutral consideration. While I note Bunnings’ submission, I would observe that having to defend the claim would not of itself constitute prejudice in the sense that Bunnings would be disadvantaged in defending the application as a result of the delay in lodging the application.

[28] Against that background, I consider this factor to be a neutral consideration.

(d) The merits of the application

[29] Ms Jones did not directly address this factor in her submissions other than setting out the series of events leading up to her dismissal. As noted above, Ms Jones contended that that she was advised by Mr Desouza on 31 July 2015 that “there will be consequences” if she raised her concerns regarding her hours of work with the SDA.

[30] Bunnings refuted that Mr Desouza had said to Ms Jones that there would be consequences if she contacted the SDA. More generally, Bunnings submitted that:

• in a Qualifying Review discussion of 5 May 2015, Ms Jones was advised that she was meeting few expectations and that she was perceived as negative and confrontational;



• further concerns were raised with Ms Jones in July 2015;



• concerns raised by a fellow staff member regarding Ms Jones were discussed with her on 13 August 2015 when she was advised that if her behaviour did not improve her employment would be terminated; and



• Ms Jones indicated little, if any, willingness to change her behaviour, resulting in Bunnings deciding not to continue her employment beyond the probationary period.

[31] Bunnings contended that Ms Jones had been dismissed for a lawful and appropriate reason and that at no time had she been treated adversely because she exercised a workplace right. Bunnings further disputed that Ms Jones had been coerced or placed under undue influence or pressure.

[32] At the telephone hearing, Bunnings contended that the merits of Ms Jones’ application were weak, adding that Ms Jones’ allegations of threatening behaviour and bullying were not breaches of the general protections provisions in the Act.

[33] An analysis of the material before the Commission supports much of Bunnings submissions regarding the various concerns raised with Ms Jones. For instance, I note that Ms Jones was advised on 5 May 2015, i.e. before she raised concerns about her hours of work with Mr Desouza, that she met few expectations. The analysis also indicates that Mr Andrew Dul of the SDA sent an email to Ms Jones on 21 September 2015 which stated, inter alia, that:

“… I have heard the witness to the comment Neil [Mr Desouza] made to re the union has not backed us up. I will continue to pursue the issue … I feel without back up from others in store we have little grounds to get compensation and are relying on Bunnings to do the right thing.” 6 (Underlining added)

[34] Against that background, the merits of Ms Jones’ application do not appear to be particularly compelling. This does not point to the existence of exceptional circumstances.

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

[35] Ms Jones did not address this factor other that stating that she did not think that people should have to go through what she had experienced.

[36] Bunnings submitted that granting an extension of time in this case would be unfair to those in a similar position whose applications had rightly been dismissed due to a lack of exceptional circumstances.

[37] While I note Bunnings’ submission, I nevertheless consider it to be a neutral consideration.

Conclusion

[38] The question of exceptional circumstances was dealt with in 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.”

[39] 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).

[40] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

S. Jones on her own behalf.

N. Howells-Schramm for Bunnings Group Limited T/A Bunnings

Hearing details:

2015.

Canberra, Melbourne and Perth (telephone hearing):

November 26.

 1   Form F8 – General Protections Application Involving Dismissal at Appendix 1

 2   Ibid at Appendix 6

 3   Ibid at Appendix 4J

 4 (2011) 203 IR 1

 5 (2010) 197 IR 403 at 408-409

 6   Form F8 – General Protections Application Involving Dismissal at Appendix 4I

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