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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jacqueline Schneider
v
Apollo Motorhome Holidays Pty Ltd
(U2014/13150)
VICE PRESIDENT HATCHER SYDNEY, 19 JANUARY 2015
Application for relief from unfair dismissal.
Introduction
[1] On 9 October 2014, Ms Jacqueline Schneider filed an unfair dismissal remedy
application pursuant to s.394 of the Fair Work Act 2009 (Act) in relation to her dismissal
from employment with Apollo Motorhome Holidays Pty Ltd (Apollo). The dismissal occurred
on 5 September 2014, so that the application was filed 13 days after the 21-day time period
prescribed by s.394(2)(a) of the Act. Accordingly it is necessary for Ms Schneider to obtain
an extension of time under s.394(3) in order for her application to be competent.
[2] Section 394(3) provides as follows:
394 Application for unfair dismissal remedy
(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.
[2015] FWC 482 [Note: An appeal pursuant to s.604 (C2015/1610) was
lodged against this decision - refer to Full Bench decision dated 24 March
2015 [[2015] FWCFB 1259] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1259.htm
[2015] FWC 482
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[3] The nature of the decision-making exercise involved in relation to an extension of time
application was described by the Full Bench in Lombardo v Commonwealth of Australia1 as
follows:
“The test for granting an extension of time involves both a broad discretion and a high
hurdle of exceptional circumstances.”
[4] Circumstances will be exceptional if they are out of the ordinary course, unusual,
special or uncommon, and may be constituted by a single exceptional matter.2 Even if
exceptional circumstances are found to exist, there remains a discretion to be exercised as to
whether an extension of time should be granted.3
Facts
[5] The facts relevant to the extension of time application were as follows:
(1) Ms Schneider commenced employment with Apollo in the position of Inbound
Sales Consultant in its Salamanda Travel business on 25 September 2013.
(2) Ms Schneider was dismissed on the ground of redundancy on 5 September
2014, in circumstances where Salamanda Travel had been in a loss-making
situation for some time. She was told, and her letter of termination of that date
repeated, that the position of Inbound Sales Consultant “was no longer needed
in Australia” and that this was not a reflection on her performance.
(3) At the termination meeting, Apollo’s HR Manager, Ms Sandra Foerster, told
her that Apollo was currently seeking to fill another casual role, and was
interviewing applicants, and asked Ms Schneider if she was interested. Ms
Schneider said she would think about it over the weekend.
(4) During the weekend, Ms Schneider sent text messages to her former Manager
Mr Craig Spencer expressing an interest in the casual position, and on 9
September 2014 contacted Ms Foerster to confirm her interest. However, she
was told that the position had already been filled. Unbeknownst to Ms Foerster
as at 5 September 2014, the position had in fact been offered to another person
that day. In the course of their discussion on 9 September 2014, Ms Foerster
mentioned the possibility that another position might become vacant. During
the conversation, Ms Schneider expressed a preference for casual work.
(5) On 22 September 2014 Ms Schneider saw an advertisement on Seek for a
casual position with Apollo. She then emailed Ms Foerster about this position
and inquired why she had not been contacted about it. Ms Foerster said the
advertisement was in error and in fact that it was a full-time position. Ms
Schneider then sent an email (on 23 September 2014) saying: “OK, that’s fair
enough. I am not interested in a permanent full time role at this stage, but I
was interested in a casual role”.
1 [2014] FWCFB 2288 at [21]
2 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
3 Ibid at [15]
[2015] FWC 482
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(6) On 7 October 2014, Ms Schneider received a copy of an internal Salamanda
Travel email of that day’s date which referred to “poor communication you
have been receiving due to a recent staff member’s departure in our Australian
Office. We expect to have our newest team member on the phones from next
week”.
(7) This email caused Ms Schneider to doubt the genuineness of her redundancy.
She did some research into the issue, and filed her application two days later.
(8) The 7 October 2014 email was referring to the fact that, during the course of
September 2014, Apollo had made arrangements to outsource Ms Schneider’s
principal job function to a call centre operator in the Phillipines, Beepo Pty
Ltd. A Beepo employee, Erica Rodriguez, began performing that function
during October 2014, and signed emails as “Reservations Office, Salamanda
Travel Pty Ltd”. Ms Schneider was not aware of this prior to filing her unfair
dismissal remedy application.
(9) On 29 October 2014 Ms Schneider was diagnosed by a medical practitioner as
suffering “severe depression and stress after unfair dismissal”.
[6] Against this factual background, I will consider the specific matters identified in
s.394(3).
Reason for the delay
[7] Ms Schneider relied upon three matters together as the reason for the delay: that
Apollo had “kept her dangling” by indicating that there might be alternative work without
actually offering anything; the receipt of information on 7 October 2014 that indicated her
redundancy might not be genuine; and her suffering depression after having been dismissed.
[8] I do not consider that the first and third matters either singly or cumulatively with
other matters constitute a satisfactory explanation for the delay. On the issue of alternative
work, it is reasonably apparent that Ms Schneider was only interested in casual work. Ms
Schneider’s disappointment at not being given the casual role which was raised with her on 5
September 2014 is understandable, and some criticism might reasonably be directed at Apollo
on that score. However, it was clear by 9 September 2014 that the role was not available.
While beyond that point Ms Schneider may have hoped to be offered casual alternative work,
there was no evidence that Apollo had any such work to offer her. The position which Ms
Schneider saw advertised on 22 September 2014 turned out to be a full-time position, and Ms
Schneider clearly expressed a lack of interest in it. Nothing occurred thereafter which could
reasonably have indicated to Ms Schneider that she should delay taking action about her
dismissal because of the prospect of alternative work.
[9] The medical diagnosis of depression post-dated the making of the application. It refers
to the depression being caused by “unfair dismissal”. On Ms Schneider’s evidence, she did
not consider her dismissal to be unfair until she saw the email on 7 October 2014. That makes
it difficult to attribute the depression as a cause of delay before that time. There is no
indication in the evidence that the depression was such as to disable Ms Schneider from
[2015] FWC 482
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making an application; indeed once she saw the email on 7 October 2014 she proved herself
able to act promptly and effectively by lodging her application two days later.
[10] The principal matter relied upon by Ms Schneider is the email which she saw on 7
October 2014. From a subjective perspective, it is understandable that the email caused Ms
Schneider to conclude that her position had not in fact been abolished and her redundancy was
therefore not genuine. She had not been told her job was, effectively, being outsourced to a
Filipino call centre, and the reference in her termination letter to her job no longer being
required “in Australia” was not sufficiently clear to allow a reasonable inference to that effect.
Insofar as Ms Schneider contends that her dismissal was unfair because it was not a genuine
redundancy in that her position appeared to still be required to be performed by Apollo, then
she had a reasonable explanation for her delay in filing the application. However, insofar as
Ms Schneider contends that the other aspects of the genuine redundancy definition in s.389
concerning consultation and redeployment were not satisfied and her dismissal was unfair on
that basis also, she has no reasonable explanation for the delay, since the facts relevant to
those matters were known to her well before the 21-day period expired.
Whether the person first became aware of the dismissal after it had taken effect
[11] Ms Schneider became aware of the dismissal at the same time it took effect on 5
September 2014.
Any action taken by the person to dispute the dismissal
[12] Ms Schneider took no action whatsoever to dispute the dismissal prior to filing her
application on 7 October 2014.
Prejudice to the employer (including prejudice caused by the delay)
[13] No prejudice to Apollo is identifiable.
The merits of the application
[14] The evidence and other material currently before me is relatively extensive, and it is
unlikely that there would be any significant additional material placed before the Commission
were Ms Schneider’s application to go to hearing. The main facts are either not in dispute or
clearly established by the evidence. It is therefore possible to make a realistic assessment of
the merits of the application.
[15] The application of the definition of genuine redundancy in s.386 looms large in
relation to this application. That definition has three limbs. The first is a requirement that “the
person’s employer no longer required the person’s job to be performed by anyone because of
changes in the operational requirements of the employer’s enterprise”. That requirement is
clearly satisfied here, in that Apollo no longer employs anyone to perform the principal
function of Ms Schneider’s role, and has outsourced that function to another employer
overseas. Although, subjectively speaking, the email which Ms Schneider saw on 7 October
2014 may have given a different impression, the objective position is quite clear.
[16] It is reasonably arguable however that the second and third limbs of the genuine
redundancy definition - that is, the consultation (in this case, as required by the Clerks -
[2015] FWC 482
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Private Sector Award 2010) and redeployment elements - may not have been satisfied in this
case. However, it does not necessarily follow from a conclusion that a dismissal on
redundancy grounds was not a genuine redundancy under s.386 that the dismissal was unfair.
Ms Schneider’s primary contention was that her dismissal was unfair because Apollo had
replaced her. The evidence demonstrates that she was not replaced by Apollo and that her
work was outsourced, as earlier explained. She could not therefore obtain a finding of
unfairness on that score. The business circumstances of Salamanda Travel, and Apollo’s
decision to restructure that business, provided a legitimate reason for Ms Schneider’s
dismissal.
[17] It would therefore be necessary for Ms Schneider to argue that her dismissal was
unfair because of insufficient consultation and a failure to redeploy her to the alternative
casual position identified to her on 5 September 2014. That position is not devoid of merit and
is arguable, but it cannot be assessed as having good prospects of success in all the
circumstances.
Fairness as between the person and other persons in a similar position
[18] This consideration is not relevant to Mr Schneider’s application.
Conclusion
[19] Having taken the above matters into account, I consider that the discovery by Ms
Schneider on 7 October 2014 of information relevant to her dismissal on the grounds of
redundancy which caused her to doubt the genuineness of that redundancy was sufficiently
unusual to constitute exceptional circumstances. It is therefore necessary for me to consider
whether I should exercise my discretion in favour of granting an extension of time.
[20] I have concluded on balance, having regard to the matters specified in s.394(3)(a)-(f)
which I have taken into account in the manner set out above, that it would not be fair or
equitable to grant an extension of time. In reaching that conclusion, I have placed particular
weight on three matters:
(1) Ms Schneider took no action whatsoever to contest or even question her
dismissal within the 21-day period or before she filed her application on 9
October 2014.
(2) Subjectively speaking, it is reasonable that Ms Schneider, having seen the
email on 7 October 2014, only formed the view at that time that Apollo had
filled her position rather than abolishing it and that her dismissal was therefore
not a genuine redundancy and was unfair. Objectively however, this principal
aspect of Ms Schneider’s case is without merit. It is clear that Apollo
outsourced to an independent business in the Philippines the main functions of
Ms Schneider’s former position.
(3) Insofar as I have assessed other aspects of Ms Schneider’s case as having some
merit and being arguable, they related to matters which were fully known to
her well prior to the expiry of the 21-day lodgement period. She has no
reasonable excuse for not filing an application in time in relation to those
matters.
[2015] FWC 482
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[21] Ms Schneider’s application for an extension of time to make her unfair dismissal
remedy application is therefore refused.
VICE PRESIDENT
Appearances:
J. Schneider on her own behalf.
T. Kowalski on behalf of Apollo Motorhome Holidays Pty Ltd.
Hearing details:
2015.
Brisbane:
15 January.
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OF THE FAIR WORK MISSION THE
