England v Compass Group (ESS) [2016] FWC 88 (6 January 2016) [2016] FWC 88 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Dannielle England v Compass Group (Australia) Pty Ltd T/A ESS Support Services Worldwide (U2015/14993) DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 JANUARY 2016 Application for relief from unfair dismissal. [1] Ms Dannielle England alleged that the termination of her employment by Compass Group (Australia) Pty Ltd on 30 September 2015 was unfair. [2] Her unfair dismissal application lodged on 12 November 2015 was not made within 21 days of the date of the dismissal. [3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time. [4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said: “[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.” [Endnotes not reproduced] (a) the reason for the delay; [5] Ms England was advised on 9 September 2015 that her position was to be terminated on 30 September 2015. She was advised that during the notice period Compass would look for alternative work for her but if they were unable to find such a position, her employment would end on 30 September 2015. She undertook a medical assessment and other tests for another site on 13 October 2015 but was told a few days later that she had not been successful in obtaining the position. [6] Ms England had until 21 October 2015 to file her application. She has not provided any explanation of why she took until 12 November 2015 to file her application. Ms England said she was trying to sort out her maternity leave but it is not clear how this prevented her from lodging an unfair dismissal application. [7] This weighs against a finding that there are exceptional circumstances. (b) whether the person first became aware of the dismissal after it had taken effect; [8] Ms England was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances. (c) any action taken by the person to dispute the dismissal; [9] Ms England did not take any action to dispute her dismissal. Ms England’s real dispute was about the failure of Compass to offer her alternative work. She did not dispute the decision to end her employment at the mine site. This weighs against a finding that there are exceptional circumstances. (d) prejudice to the employer (including prejudice caused by the delay); [10] As Compass did not call any evidence or make any submissions on this criterion, I find that there would be no prejudice to Compass. This weighs in favour of a finding that there are exceptional circumstances. (e) the merits of the application; [11] Ms England did not dispute that Compass had an operational reason to make her position redundant. Ms England’s complaint was that she was not redeployed to another suitable position. Ms England was put forward for one position and she claimed that she was not offered the position because she was pregnant. All the other employees made redundant at the same time as Ms England were successfully redeployed. [12] Compass submitted that this was a genuine redundancy. It submitted that it consulted with Ms England on 9 September 2015. It submitted that there were no redeployment opportunities available prior to the 30 September 2015. It submitted that, post her termination, Ms England was put forward for a position but that Ms England did not pass the required site entry requirements for that position. It denied selecting Ms England for redundancy because she was pregnant and denied that she was not redeployed because she was pregnant. [13] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral. (f) fairness as between the person and other persons in a similar position. [14] There were no relevant submissions made on this criterion. Conclusion [15] Ms England has not provided a reasonable explanation for the delay. That there is no prejudice to Compass is not of itself sufficient to enable a finding that there are exceptional circumstances. All the other criterion are either neutral or against a finding of exceptional circumstances. I therefore find that there are no exceptional circumstances and as such Ms England’s claim for an unfair dismissal remedy must be dismissed. DEPUTY PRESIDENT Appearances : D. England on her own behalf. C. Holmes for the Respondent. Hearing details: 2016. Melbourne and Perth, by telephone link: 5 January. 1 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code A, PR575854>