Sinead Carroll v Abbeville Enterprises Pty Ltd ATF Jo Turner Family Trust T/A Skin Revision

[2016] FWC 7459

[2016] FWC 7459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sinead Carroll
v
Abbeville Enterprises Pty Ltd ATF Jo Turner Family Trust T/A Skin Revision
(C2016/1965)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 14 OCTOBER 2016

Application to deal with contraventions involving dismissal.

[1] On 19 August 2016 Ms Sinead Carroll (the Applicant) lodged a General Protection 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 her employer Abbeville Enterprises Pty Ltd ATF Jo Turner Family Trust T/A Skin Revision (the Respondent).

[2] The Applicant commenced employment with the Respondent on 12 August 2015. She was employed as Clinic Manager in the Respondent’s clinic in Chermside, Brisbane. The clinic delivers non-surgical cosmetic and skin treatments. She was terminated on 25 July 2016 by a letter which was dated the day before but given to her on 25 July. The dismissal therefore took effect on 25 July.

[3] The application was lodged four days out of time.

Alleged Contravention

[4] The applicant submits that she was dismissed when she was on sick leave after a series of text messages asking her to come to work. The alleged misconduct was showing a client the work of another contractor of the employer. A process had already commenced to change the Applicant’s role. She was provided with two weeks’ pay in lieu of notice. The Applicant submits that she was not provided with procedural fairness. A breach of s.340 is alleged.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed for misconduct in referring clients to one of the Respondent’s contractors, therefore losing business. There had been ongoing issues about the Applicant’s performance that led to a proposal to downgrade her role. However, the disloyalty to the Respondent was the reason for the dismissal. The Respondent set out in details the chain of events that led to the dismissal.

Relevant Legislation

[7] 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

[8] 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.”

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[11] On 23 August 2016, 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 listed for hearing on 14 September 2016.

[12] The Applicant was represented Mr B. Holloway, a support person. The Respondent was represented by Dr J. Turner, the owner of the business.

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

[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] The main reasons the Applicant gave for the delay in lodging the application were her health and some family issues in the couple of weeks after the dismissal. However, the Applicant went on a holiday from 6 to 14 August 2016. The Applicant also says that she could not speak to a lawyer until 16 August. In the meantime, her grandfather died and she departed Brisbane on 17 August to attend the funeral in Scotland.

[15] None of these matters constituted exceptional circumstances. It is clear that the Applicant’s health and family circumstances did not prevent her lodging the application in time. The Respondent provided a range of social media posts of the Applicant’s holiday that support this conclusion. Her departure from Australia was after the time for lodgements had passed.

[16] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[17] The Applicant did not take other action to dispute the dismissal.

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

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

(d) Merits of the application

[19] The Applicant alleges that she was dismissed without procedural fairness. It is said that this is the workplace right which is infringed. It is difficult to see that the application discloses a General Protections cause of action. Rather, it is an unfair dismissal argument. The Respondent had eight employees and the Applicant less than 12 months service, so she could not lodge a s.394 application.

[20] The Respondent provided substantial evidence with respect to the reason for the dismissal relating to the Applicant’s performance and conduct.

[21] 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

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

Conclusion and Order

[23] 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 Sinead Carroll under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

B. Holloway for the Applicant;

J. Turner for the Respondent.

Hearing details:

2016

September 14 (telephone hearing).

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