Wright v Compass Group [2016] FWC 1194 (24 February 2016) [2016] FWC 1194 FAIR WORK COMMISSION 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. 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. 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. [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 Blue Star Group Pty Ltd (Nulty) 1 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 . (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. Appearances : N.Wright for the Applicant. C.Holmes for the Respondent. Telephone Hearing details: 2016. Melbourne: 23 February. 1 [2011] FWAFB 975 . Printed by authority of the Commonwealth Government Printer <Price code C, PR577348>