Wright v Compass Group

[2016] FWC 1194

[2016] FWC 1194

DECISION

Fair Work Act 2009

s.365—General protections

Nicola Wright

v

Compass Group (Australia) Pty Ltd T/A ESS Support Services Worldwide

(ESS)

(C2015/7045)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 24 FEBRUARY 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 Nicola Wright (the Applicant) made an application under s.365 of the Fair Work

Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on

23 October 2015. In her application Mrs Wright alleges that she had been dismissed by

Compass Group (Australia) Pty Ltd T/A ESS Support Services Worldwide (ESS) (the

Respondent) on 2 August 2015 in contravention of the general protections provisions of the

Act. ESS in its Form F8A – Employer Response to General Protections Application raised a

jurisdictional objection on the basis that the application had been lodged outside the 21 day

statutory timeframe specified in s.366(1)(a) of the Act.

[2]        As the application had been lodged 61 days outside the statutory timeframe for

lodgement, the Commission issued Directions on 17 November 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 application was the subject of a telephone hearing on 23 February 2016 to deal

with the extension of time issue. At the telephone hearing, Mrs Wright appeared on her own

behalf, while Ms Catherine Holmes, ESS’s National Workplace Relations Manager, appeared

for the Respondent.

[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.
[2016] FWC 1194
Background

[5]        Mrs Wright stated in her application that she commenced employment with ESS in

2012. Attached to Mrs Wright’s application was a copy of her most recent contract of

employment which had been signed on 29 January 2014. That contract described

Mrs Wright’s job title as Coordinator – Active Life and that her site would be

Jundunmunnah/Rocklea Palms. Mrs Wright was dismissed with effect from 2 August 2015 at

the conclusion of her period of parental leave.

[6]        Based on the material before the Commission, the following is a brief chronology of

events leading up to the termination of Mrs Wright’s employment:

	on 23 March 2015 ESS wrote to Mrs Wright advising that it will cease to provide
contracted catering and related services for the Kurra Kulli site, the site which
ESS stated Mrs Wright’s employment was limited to, and giving notice of the
termination of her employment with effect from the end of her shift on 31 March
2015;
	on 1 April 2015 ESS wrote to Mrs Wright confirming that her employment had
been terminated on 31 March 2015;
	on 28 July 2015 ESS wrote to Mrs Wright stating that “During and after the
notice period we have looked for suitable alternative employment for you and
other Compass operations however we have not been able to secure another
suitable position. As you are in receipt of paid parental leave payments from
Centrelink through our payroll system, we agreed to maintain your employment
status in the system to avoid inconvenience and delay in your payments. As your
last payment is expected to go through for the period ending 02/08/2015, we wish
to advise you that your employment will terminate on 02/08/2015 …”;
	Mrs Wright sent an email on 8 September 2015 to her former manager at ESS,
Mr Hamish Johnston, advising that her contract of employment described her site
as Jundunmunnah/Rocklea Palms and not Kurra Kulli as contended by ESS in the
above correspondence and also indicating that she had “sought advice” regarding
her termination; and
	there was an ensuing email exchange between Mrs Wright and Mr Johnston
which concluded on 20 October 2015.

[7]        As previously mentioned, Mrs Wright’s application was received by the Commission

on 23 October 2015. In her application, Mrs Wright contends that she had been dismissed in

contravention of s.351 of the Act which deals with discrimination on the basis that ESS had

reneged on its contractual obligations while she was on maternity leave.

[8]        I would observe by way of background that Mrs Wright’s dismissal resulted from an

error by ESS as to the work site her employment contract specified. The above

correspondence from ESS to Mrs Wright is predicated on her employment being limited to

the Kurra Kulli site; however the contract of employment which Mrs Wright attached to her

application clearly specifies her site as Jundunmunnah/Rocklea Palms. This error was

acknowledged by ESS both in its outline of submissions and at the telephone hearing. It is

unfortunate that the error was not picked up much sooner as it would have avoided much

angst for both Mrs Wright and ESS.
[2016] FWC 1194
The Relevant Legislation

[9]        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

[10]      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

[11]      In her application Mrs Wright stated that the reason for the delay in lodging her

application was because she was trying to get ESS to honour her contract of employment and

also because she was unaware of the 21 day timeframe for lodging a general protections

application. In her outline of submissions, Mrs Wright contended that the reasons for the

delay in lodging her application were a combination of being absent on maternity leave,

Mr Johnston’s delayed responses to her emails and ESS’s unwillingness to honour its

contractual obligations.

[12]      ESS referred to the correspondence it sent to Mrs Wright (see above), highlighting the

absence of a reasonable explanation for the delay in Mrs Wright lodging her application. ESS

further submitted that a lack of knowledge of the 21 day timeframe, particularly in

circumstances where Mrs Wright’s email of 8 September 2015 to Mr Johnston indicated that

she had obtained advice, together with her absence on parental leave were not a reasonable

explanation for the delay.

[13]      At the telephone hearing, Mrs Wright acknowledged that she contacted ESS when she

received her final pay out which was two days after the letter of 28 July 2015 and also

indicated that she did not take any steps to find out what her options may be to dispute her

dismissal. While there appears to have been some telephone discussions between Mrs Wright

and Mr Johnston prior to her email of 8 September 2015, this is disputed by ESS. Further, I

note that Mrs Wright took no steps to inquire about her employment following the March and

April 2015 correspondence she received from ESS and that her email of 8 September 2015

was sent 16 days after the 21 day statutory timeframe had expired.
[2016] FWC 1194

[14]      With regard to Mrs Wright’s submission that she was not aware of the 21 day

timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v

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Blue Star Group Pty Ltd (Nulty)	a 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 ...”

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

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

[16]      Mrs Wright submitted that she contacted Mr Johnston via telephone when she had

received a final payout in an attempt to explain that her contract stated that she worked at the

Jundunmunnah/Rocklea Palms site and not the Kurra Kulli site as contended by ESS in its

correspondence. Beyond that, as noted above, Mrs Wright initiated an email exchange with

Mr Johnston which commenced on 8 September 2015, i.e. after the 21 day period had expired.

[17]      The Respondent’s submissions did not directly address this factor.

[18]      Based on the material before the Commission, it appears that Mrs Wright took limited

steps to dispute her dismissal within the 21 day statutory timeframe.

[19]      This does not support a finding of the existence of exceptional circumstances.

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

[20]      At the telephone hearing, Mrs Wright submitted that ESS would not be prejudiced

were an extension of time to be granted.

[21] ESS submitted that as it had lost the contract to provide services to the

Jundunmunnah/Rocklea Palms site, it would be prejudiced were an extension of time to be

granted as Mrs Wright’s former position will shortly no longer exist. In normal circumstances

this would not necessarily constitute prejudice. However, given Mrs Wright’s concession

below regarding the merits of her application, I consider that ESS would be prejudiced were

an extension of time to be granted, albeit for different reasons than those submitted by ESS.

(e) The merits of the application

[22]      At the telephone hearing, Mrs Wright acknowledged that she had not been dismissed

because she had taken maternity leave but rather as a result of a mix-up regarding her contract

of employment.

[23]      This supports a finding that Mrs Wright’s general protections application is without

merit.
[2016] FWC 1194

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

[24]      Mrs Wright did not directly address this factor in her submissions.

[25]      ESS submitted that it was unaware of any employees in similar positions who were on

parental leave at the time of the Kurra Kulli site closure or who challenged the decision to

terminate their employment.

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

Conclusion

[27]      The question of exceptional circumstances was dealt with by a Full Bench of the then

Fair Work Australia in the decision of 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.”

[28]      Having considered all of the factors set out in s.366(2) of the Act 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). The primary consideration in

that regard was Mrs Wright’s acknowledgement at the telephone hearing that she had not

been dismissed because she had taken maternity leave and the resulting finding that her

application was therefore without merit.

[29]       Accordingly, the application will be dismissed. An order to that effect will be issued

with this decision.

[2016] FWC 1194

Appearances:

N.Wright for the Applicant.

C.Holmes for the Respondent.

Telephone Hearing details:

2016.

Melbourne:

23 February.

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<Price code C, PR577348>

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[2011] FWAFB 975.