Virginia Jacobs v Nagambie Wine Corporation Pty Ltd T/A Mitchelton Wines

[2014] FWC 1260

[2014] FWC 1260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Virginia Jacobs
v
Nagambie Wine Corporation Pty Ltd T/A Mitchelton Wines
(C2014/127)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 19 FEBRUARY 2014

General protections contraventions involving dismissal - extension of time.

[1] Mrs Virginia Jacobs (the Applicant) made an application on 29 January 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that her dismissal on 3 December 2013 was in contravention of the general protections provisions of the Act. On 5 February 2014, Nagambie Wine Corporation trading as Mitchelton Wines (the Respondent), in responding to the application, objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.366(1) of the Act. The Commission convened a teleconference on 10 February 2014 (the teleconference) to deal with the Respondent’s objection.

The Applicant’s outline of events

[2] Based on the material provided by the Applicant 1, she commenced work with the Respondent on 24 January 2011 as Cellar Door Manager.

[3] In October-November 2013 following a “run-in” with a fellow worker, Ms Knight, the Events Manager at Mitchelton Wines, the Applicant spoke to her supervisor, Mr Beresford, in relation to issues she had with Ms Knight. At about the same time, the Applicant also spoke with the site’s Commercial Manager, Ms Lloyd, regarding Ms Knight’s use of the cellar door cost centre for wine club events. The Applicant states that Ms Lloyd did not respond to her inquiries.

[4] In mid-November, the Applicant became aware that another employee, Ms Hodgeman, had made a formal complaint concerning Ms Knight. Later that month, the Applicant says that another colleague, Ms Munro, told her that she had informed Mr Beresford that she was concerned about the impact Ms Knight’s behaviour was having on the Applicant and Ms Hodgeman. According to the Applicant, Ms Munro had told her that Mr Beresford had asked her (i.e. Ms Munro) to document the issues she had observed and its impact on both the Applicant and Ms Hodgeman.

[5] On 3 December 2013, the Applicant’s employment was terminated when she was made redundant. Ms Knight and Ms Hodgeman were also made redundant at that time. The Applicant indicated that at the 3 December 2013 meeting where her employment was terminated “no mention of the issues I had raised were discussed or made.” The termination letter provided to the Applicant on 3 December 2013 and attached to her application states:

“As a result of a comprehensive review of the business structure and the operational & sales performance your role has been made redundant.”

[6] In a subsequent conversation with Ms Munro, Ms Munro indicated to the Applicant that following the 3 December 2013 meeting, Mr Ryan, the Respondent’s Managing Director, had followed her outside and “told her not to worry, that her letter of complaint was not a factor in the restructuring that occurred.” The Applicant asserts that this “indicates that Mr Ryan had considered the possibility that I may have also been considering making a complaint regarding Ms Knight’s behaviour.”

[7] At the teleconference, the Applicant indicated that the abovementioned subsequent conversation with Ms Munro occurred around Australia Day 2014 and had triggered her suspicions as to the real reason for her termination, particularly as she (and allegedly others) could not understand why she had been made redundant. The Applicant also confirmed that she had not made a formal complaint but indicated that she was about to when terminated.

The Respondent’s outline of events

[8] The Respondent in its response to the application 2 denied that the Applicant was terminated for any reason other than genuine redundancy, highlighting that in addition to the Applicant five other employees were made redundant. In short, staffing was reduced by 20 per cent.

[9] While the Respondent denies that the Applicant ever made a formal complaint regarding Ms Knight, it does acknowledge that the Applicant did raise issues with Mr Beresford and Ms Lloyd regarding Ms Knight. However, the Respondent adds that the Applicant “had stated she was just mentioning it” and that she “had never asked for the matter to be looked into formally and never indicated she wanted her comments to be followed up.”

[10] At the teleconference, Mr Ryan indicated that the redundancies were driven by the business losing a lot of money. Regarding the Applicant’s comments that he followed Ms Munro outside after the 3 December 2013 meeting, he confirmed that he did so as he wished to comfort Ms Munro as he could see she was upset.

The Relevant Legislation

[11] 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

[12] 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

[13] The application was lodged 57 days after the Applicant’s termination, well outside the 21 day statutory timeframe. At the teleconference, the only reasons advanced by the Applicant for the delay were that she thought the timeframe for making an application was 60 days and that following her termination she went through a “down period.” In response to a question from the Commission, the Applicant advised that post her termination she made no inquiries as to the options available to her under the Act and any timeframes attaching to those options.

[14] As stated by Commissioner Roe in Rose v BMD Constructions Pty Ltd (Rose) 3 when considering an application for an extension of time within which to file an application for an unfair dismissal remedy:

“Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.”

[15] By way of background, the grounds on which an extension of time for an unfair dismissal application can be made under the Act are set out in s.394 and are in similar, though not identical, terms to those set out in s.366. Further, the reference to the 14 day time limit in the above citation reflects the statutory timeframe for the making of unfair dismissal applications then applying. Since the decision in Rose, the Act has been amended to increase this period to 21 days. At the same time, the timeframe for making general protections claims relating to termination was amended to align the statutory time frames for the making of applications under s.365 and s.394 of the Act at 21 days.

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

[16] The Applicant did not take any steps to contest her dispute until filing her application on 29 January 2014.

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

[17] No views were expressed on this point.

(e) The merits of the application

[18] As noted above, the Applicant had not made a formal complaint regarding Ms Knight’s behaviour at the time of her termination, though she did indicate that she was about to make a complaint when she was made redundant. The Applicant did not indicate that she had informed anyone of her intention to do so.

[19] At the teleconference, the Applicant was unable to point to any material which she might rely on or draw upon to support her claim that her termination was linked to her intention to exercise a workplace right. The only point the Applicant made was that her conversation with Ms Munro around Australia Day 2014 had “triggered her suspicions as to the real reason for her termination” as it raised doubts in her mind as to Mr Ryan’s motivation in making the previously referred to comments to Ms Munro after the 3 December 2013 meeting.

[20] While I acknowledge that Mr Ryan’s comments to Ms Munro appear to be an odd way of comforting someone who has just lost their job, they do not necessarily mean there is a linkage between the Applicant’s intention to exercise a workplace right and her termination. This is particularly so given that there is nothing to suggest that the Applicant had foreshadowed her intention to make a complaint regarding Ms Knight.

[21] In the absence of more compelling material linking the Applicant’s termination with her intention to exercise a workplace right, I assess the merits of the application as poor.

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

[22] No views were expressed on this point.

Conclusion

[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.365.

[24] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

DEPUTY PRESIDENT

Appearances:

V. Jacobs with D. Jacobs for the Applicant.

A. Ryan for the Respondent.

Hearing details:

2014.

Melbourne (telephone conference):

February 10.

 1   Form F8 - General Protections Application

 2   Form F8A - Employer response to general protections application

 3   [2011] FWA 673 at paragraph [11]

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