Trudy Taylor v LVMH Perfume and Cosmetics T/A Parfums Christian Dior

[2017] FWC 4803

[2017] FWC 4803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trudy Taylor
v
LVMH Perfume and Cosmetics T/A Parfums Christian Dior
(U2017/7992)

COMMISSIONER PLATT ADELAIDE, 15 SEPTEMBER 2017

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Ms Trudy Taylor has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with LVMH Perfume and Cosmetics T/A Parfums Christian Dior (LVMH). Ms Taylor’s form F2 Unfair Dismissal Application advised that she was notified of the dismissal on 12 April 2017 which took effect on 30 May 2017.

[2] The application was lodged on 24 July 2017.

[3] Ms Taylor’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“My Employer didn’t give me the Employment Separation Certificate with the reason for my dismissal until by email dated 6/7/2017 and then in the post received on 12/7/2017.”

[4] On 15 August 2017, LVMH lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time and Ms Taylor was not dismissed. This decision only deals with the extension of time issue.

[5] On 18 August 2017, my Associate corresponded with Ms Taylor and LVMH and advised that the extension of time issue would be considered at a telephone conference on 13 September 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Taylor was directed to provide a statement concerning the extension of time and any documents to be relied upon by 30 August 2017. LVMH was invited to file any material in reply by 6 September 2017.

[6] Ms Taylor provided a written submission which is summarised as follows:

● On 12 April 2017, she was advised that she would not be offered any further work due to conduct/performance issues at three of LVMH stores.
● On 11 May 2017, Ms Taylor sought Mr Phillipos’ assistance to obtain a Centrelink Separation Certificate from LVMH.
● On 29 May 2017, Ms Taylor emailed LVMH and requested that they complete an Employment Separation Certificate.
● On 30 May 2017, Ms Taylor emailed LVMH and acknowledged that she would not be employed as no further hours were available.
● On 31 May 2017, Ms Taylor resigned by email.
● Ms Taylor continued to seek a Separation Certificate until its receipt on 6 July 2017.
● Further correspondence took place concerning the payment of Ms Taylor’s entitlements.
● On 19 July 2017, Ms Taylor received advice from a specialist tax accountant. At that time, Ms Taylor ascertained the basis of the dismissal and believed she had been unfairly dismissed.

[7] LVMH’s submission is relevantly summarised as follows:

● Ms Taylor’s last day of work was 12 April 2017.
● Ms Taylor resigned on 30 May 2017.
● The application was filed out of time.
● Ms Taylor has not properly explained the delay.
● No exceptional circumstances exist.
● Ms Taylor must have known by 30 May 2017 that the employment had come to an end.
● The representations made by Ms Taylor did not contest the dismissal but related to entitlements.
● No prejudice to the employer is contended.
● The merits of the application weigh against the applicant.
● Fairness between others is a neutral consideration.

[8] A hearing was conducted by way of telephone conference on 13 September 2017. A sound file record of the telephone conference was kept. Ms Taylor was represented by Mr George Phillipos who was not remunerated for his work, LVMH was represented by Mr Benjamin Gee of counsel with permission granted pursuant to s.596(2) of the Act.

[9] Ms Taylor reiterated her submissions and provided the following additional information at the hearing, which is summarised as follows:

● Prior to 12 April 2017, she worked as a casual for 21 years and in the last 6 months had worked an average of 4 days per week.
● Ms Taylor did not contest the contents of the 30 and 31 May 2017 emails filed by LVMH.
● Ms Taylor disputed that her conduct or performance were grounds for dismissal.

[10] LVMH relied on its submissions and further contended:

● Ms Taylor was employed as a casual.
● It did not dispute that Ms Taylor’s employment was regular and systematic prior to 12 April 2017.
● On 12 April 2017, it advised Ms Taylor that she would not be offered work at some of its stores (3 out of 6).
● On 30 May 2017, Ms Taylor was advised that she would not be offered any further work at any of its stores.
● On 30 May 2017, LVMH received an email from Ms Taylor which stated “I acknowledge that I won’t be employed by LVMH due to no hours available”.
● On 31 May 2017, Ms Taylor advised by email that “Due to Dior informing me there are no hours available, I am officially resigning my position as a rotator.”

[11] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) 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.”

[12] I find that Ms Taylor’s employment ended on 31 May 2017.

[13] This unfair dismissal application by Ms Taylor was made 33 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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] I make the following findings.

[16] The only action Ms Taylor took to question her dismissal was the lodgement of this application on 24 July 2017.

[17] The other communications appeared to relate to issues concerning the payment of Ms Taylor’s entitlements after the Centrelink Separation Certificate was provided.

[18] The delay in the provision of the Separation Certificate is not of itself an exceptional circumstance.

[19] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[20] There is no submission that the granting of an extension of time represents prejudice to LVMH.

[21] In terms of the merits of the application, in her email dated 31 May 2017 Ms Taylor appears to have resigned from her role. At the hearing, Ms Taylor accepted that email was a resignation. It appears that Ms Taylor resigned and as such the application lacks merit. Accordingly, I have regarded the merits as a factor which weighs against the extension of time issue.

[22] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[23] For the reasons I have set out above, I am not satisfied that Ms Taylor’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr G.Phillipos on behalf of the Applicant.

Mr B.Gee of counsel on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

September 13.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

3 PR596108

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