Amanda Lorenzo v Innovations Direct Pty Ltd [2023] FWC 2461

1 Fair Work Act 2009 s.394—Unfair dismissal Amanda Lorenzo v Innovations Direct Pty Ltd (U2023/7376) COMMISSIONER CRAWFORD SYDNEY, 22 SEPTEMBER 2023 Application for an unfair dismissal remedy – Unfair dismissal application filed out of time – extension not granted – application dismissed Background [1] Amanda Lorenzo (Ms Lorenzo) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Innovations Direct Pty Ltd (Innovations Direct). [2] Innovations Direct is a subsidiary of Direct Group Pty Ltd (Direct Group). Direct Group sells a variety of products through several mediums including online, print, television and digital publishing. Ms Lorenzo was employed in the Innovations operating division of Direct Group which has brands such as Infashion, House of Pets, Home Collection, Magnamail, Entertainment Masters and the Fox Collection. There are a total of 11 brands falling under the Innovations business unit.1 [3] Ms Lorenzo commenced employment with Innovations Direct on 18 April 2016 and was engaged in the role of Graphic Designer. Ms Lorenzo was responsible for the graphic design of the Magnamail fashion catalogue and making marketing material that was sent to customers including envelopes and order forms for products sold by the Magnamail brand.2 [4] Ms Lorenzo was dismissed by Innovations Direct on 3 July 2023 on account of redundancy. Ms Lorenzo filed an unfair dismissal application on 9 August 2023. [5] Innovations Direct has objected to the application on the ground that the application is out of time. [6] Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.3 [2023] FWC 2461 DECISION -- 1 of 9 -- [2023] FWC 2461 2 Time limit for an unfair dismissal application [7] Section 394(2) of the FW Act provides that an unfair dismissal application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. Was the Application made within 21 days after the dismissal took effect? [8] As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”4 [9] Given Ms Lorenzo was dismissed on 3 July 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 24 July 2023. The application was filed on 9 August 2023. There is no dispute between the parties about these dates and hence that the application was filed 16 days outside the 21-day period. As a result, Ms Lorenzo needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act. Was the application made within such further period as the Commission allows? [10] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether Ms Lorenzo first became aware of the dismissal after it had taken effect; and (c) any action taken by Ms Lorenzo 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 Ms Lorenzo and other persons in a similar position. [11] Each of the above matters must be considered in assessing whether there are exceptional circumstances.5 Procedural history -- 2 of 9 -- [2023] FWC 2461 3 [12] On 30 August 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 20 September 2023. The parties filed material in accordance with the directions. [13] Neither party sought permission to be represented under s.596 of the FW Act. Ms Lorenzo represented herself. Innovations Direct was represented by Julie Ryan (General Counsel) and Ferzana Yale (Chief People & Culture Officer). [14] At the commencement of the determinative conference/hearing on 20 September 2023, I indicated my provisional view was that it was appropriate to conduct a determinative conference rather than a hearing6, particularly given Ms Lorenzo was representing herself. The parties consented to this approach. I decided a determinative conference would be conducted. Material filed Ms Lorenzo [15] Ms Lorenzo relied on the following material in support of her request for an extension of time to file an unfair dismissal application: • Form F2 application dated 9 August 2023; • A screenshot of a job advertisement for a casual graphic designer with Direct Group which she accessed on 9 August 2023. This document was marked Exhibit A1; • A photo of an envelope addressed to Ms Lorenzo from Magnamail Pty Ltd (another company within the Direct Group) with a sent date stamp of 27 July 2023. A photo of the enclosed promotional material was also included. These documents were marked Exhibit A2; • An email from Ms Lorenzo to the Commission dated 11 August 2023. The email contains an explanation from Ms Lorenzo for filing the application outside the 21-day period. This document was marked Exhibit A3; • An email from Ms Lorenzo to the Commission dated 18 August 2023. The email contains a further explanation from Ms Lorenzo for filing the application outside the 21-day period. This document was marked Exhibit A4; and • Two photos of an envelope addressed to Ms Lorenzo from Magnamail Pty Ltd with a sent date stamp of 4 August 2023. These documents were marked Exhibit A5. [16] Ms Lorenzo was cross-examined on her evidence and also provided oral closing submissions at the end of the determinative conference. Innovations Direct -- 3 of 9 -- [2023] FWC 2461 4 [17] Innovations Direct relied on the following material in opposition to the granting of an extension of time: • Form F3 employer response dated 5 September 2023; • Outline of submissions dated 15 September 2023; and • Statement of Ferzana Yale dated 15 September 2023. The statement contained the following attachments: - FY 1: Email from Mark Ashby (CEO Direct Group) dated 28 June 2023. This outlined various structural, and organisations changes to Direct Group. The changes included that “the current Magnamail Fashion catalogue will no longer be produced as a separate catalogue. The current Magnamail Fashion customers will be serviced by the Infashion catalogue with small changes to the branding of Magnamail Fashion.” A Frequently Asked Questions document was attached to the email. - FY 2: A letter to Ms Lorenzo dated 28 June 2023 foreshadowing that her position was redundant and that her employment would end on 3 July 2023 unless she can be redeployed. Attached to the letter were redundancy calculations, current vacancies and career transition material. - FY 3: Ms Lorenzo’s termination letter dated 3 July 2023. Attached to the letter were final pay calculations. - FY 4: An email from Ms Lorenzo to Lisa Youngman (copying Ms Yale) dated 1 July 2023, which stated: “My decision is to take the Exit package. I will not apply for any jobs at Direct Group. If you still need to call me on Monday, that’s fine. When will I receive my payments?” Ms Yale’s statement was marked Exhibit R1. [18] Ms Lorenzo declined an opportunity to cross-examine Ms Yale. Ms Ryan also provided oral closing submissions on behalf of Innovations Direct at the end of the determinative conference. Consideration When did the dismissal take effect? [19] I accept Ms Lorenzo’s dismissal took effect on 3 July 2023 as specified in the termination letter. This was not contested by Ms Lorenzo. When was the application made? [20] There is no dispute that Ms Lorenzo filed her unfair dismissal application on 9 August 2023. -- 4 of 9 -- [2023] FWC 2461 5 Reason for the delay [21] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 July 2023. The delay is the period commencing immediately after that time until 9 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.7 [22] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.8 [23] Ms Lorenzo does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Ms Lorenzo has not provided any reason for any part of the delay.9 [24] The reasons identified by Ms Lorenzo for the delay are summarised in her email to the Commission dated 18 August 2023: The reason why my circumstance for filing a late Unfair Dismissal is because of two things: • I assumed no one was doing my old job as they said my role was no longer required. Within the 21 days, I had no knowledge that someone was still doing my old job at Innovations. It wasn't until I received Innovation's promotional envelope in the mail, that I realised a graphic designer was doing my old job! I used to create those promotional envelopes. The first envelope came to my mailbox on 29/07/2023. Then I just received another promotional envelope in the mail, stamped 04/08/2023 (Please see attached photo of SECOND promotional envelope sent to my house, time dated 04/08/2023). I had no idea this was going on and by the time I found out, it was too late to file for Unfair Dismissal under the 21-day timeframe. • I recently saw on seek.com.au, Innovations advertised for a Graphic Design role, similar to what I used to do. Again, that ad went on seek after my 21-day time frame. They are not allowed to hire someone for my old role.10 [25] Ms Lorenzo supplemented this evidence in response to a question from me during cross- examination. Ms Lorenzo stated she initially had no reason to doubt what she was told about her role being redundant. Ms Lorenzo put the first promotional envelope, received on around 29 July 2023, down to someone else finishing off the work she performed prior to being made redundant. However, when she received the second envelope on around 6 August 2023, she became concerned that someone else was completing the work she previously performed for Innovations Direct and that her full role was not genuinely redundant. Ms Lorenzo indicated she was indecisive about whether to contest her dismissal after receiving the second envelope and sought legal advice. The advice was not in favour of contesting the dismissal due to concerns about what remedy may be available. Ms Lorenzo ultimately decided to file the application herself on 9 August 2023. -- 5 of 9 -- [2023] FWC 2461 6 [26] I found Ms Lorenzo to be a credible witness and have no reason to doubt her explanation for the delay. Ms Lorenzo provided documentary evidence to substantiate her explanation. I accept Ms Lorenzo believed she had no basis to contest her dismissal until she received the second envelope on around 6 August 2023. I accept Ms Lorenzo then sought legal advice prior to filing the application herself on 9 August 2023. [27] I find Ms Lorenzo has an adequate reason for the entirety of the delay and that this weighs in favour of granting an extension of time. Did Ms Lorenzo first become aware of the dismissal after it had taken effect? [28] Ms Lorenzo was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. What action was taken by Ms Lorenzo to dispute the dismissal? [29] Ms Lorenzo accepted during the determinative conference that she took no steps to dispute the dismissal prior to filing the unfair dismissal application. [30] I consider this to be a neutral factor. What is the prejudice to the employer (including prejudice caused by the delay)? [31] Innovations Direct submitted in its written submissions that it was ‘slightly prejudiced’ by the delay. However, Ms Ryan accepted there was no prejudice during closing submissions, which is consistent with the Form F3. [32] I consider this to be a neutral factor. What are the merits of the application? [33] I can certainly understand why Ms Lorenzo feels aggrieved about what has happened and that the receipt of the two envelopes, demonstrating at least some of her previous work is still being performed, caused her legitimate concerns about whether the redundancy was genuine. [34] However, it is well established that the continued performance of some of the duties previously performed by a redundant employee does not necessarily mean the redundancy was not genuine. [35] The Full Federal Court cited the following authorities in support of this position in Dibb v Commissioner of Taxation: Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327, Beazley J said at 332-333: “There was no dispute that ‘the operational requirements’ of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the -- 6 of 9 -- [2023] FWC 2461 7 requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs … As was said in Bunnetts' case (Bunnett v Henderson's Federal Spring Works Pty Ltd ) (1989) AILR 354: ‘Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.11 [36] The Full Court went on to find: In the present case, the employer redistributed the duties previously performed by its District Managers and at the same time, added further duties. The job, described by reference to its duties as previously performed by Mr Dibb, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. The result was that there was no job for which his skills qualified him. He was “surplus to [AVCO's] personnel needs”. We consider that the respondent was in error in concluding that Mr Dibb's dismissal was not by reason of his bona fide redundancy. As a result, the respondent also erred in failing to address the matters prescribed by s 27F. These errors have inevitably deprived Mr Dibb of the benefit conferred by Subdiv AA upon a person receiving a bona fide redundancy payment as part of an ETP.12 [37] Ms Lorenzo gave varying figures concerning the proportion of her work that was associated with developing the now defunct Magnamail fashion catalogue, but she accepted it was a large proportion, of at least 40%. Innovations Direct suggested developing the catalogue was the majority of Ms Lorenzo’s work and that her remaining duties had been allocated to other team members.13 Ms Yale was not cross-examined on this evidence. There is documentary evidence to establish that Mr Lorenzo declined to seek redeployment.14 [38] Although it is not appropriate or possible to reach any firm conclusion on this issue at this early stage in the proceedings, it does appear to me that Innovations Direct has strong prospects of establishing Ms Lorenzo was not unfairly dismissed because her dismissal was a case of genuine redundancy within the meaning of s.389 of the FW Act. [39] I find the merits of the application weigh against the granting of an extension of time. Fairness as between Ms Lorenzo and other persons in a similar position [40] I consider this to be a neutral factor as accepted by both parties. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [41] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above. [42] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.15 Exceptional circumstances may include a single -- 7 of 9 -- [2023] FWC 2461 8 exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.16 The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.17 [43] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. [44] Although I accept Ms Lorenzo has an adequate reason for the delay in filing her application, I consider the merits of the application weigh against the granting of an extension. Further, there is a connection between the merits of the application and the reason for the delay, in that Ms Lorenzo’s mistaken belief that evidence of the continued performance of some of her duties demonstrates the dismissal was not a case of genuine redundancy, caused her to file an application beyond the 21-day filing period. Ms Lorenzo had previously not considered this to be an option. To put it another way, although I accept Ms Lorenzo had an adequate reason for the delay, her explanation is also based on an erroneous, or incomplete, understanding of the legal position. As a result, I do not consider Ms Lorenzo having an adequate reason for the delay to be overly persuasive to a finding of exceptional circumstances. [45] In Ho v Professional Services Review Committee No 29518, Rares J provided the following practical example of what constitutes exceptional circumstances with reference to the same test in predecessor legislation: “Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.” [46] I do not consider the circumstances which led to Ms Lorenzo filing the application out of time to be a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which taken together can be seen as exceptional. I consider the circumstances encountered by Ms Lorenzo would likely be similarly encountered by a significant number of other employees that are dismissed by reason of redundancy. Conclusion [47] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately. -- 8 of 9 -- [2023] FWC 2461 9 COMMISSIONER Appearances Ms Amanda Lorenzo, appearing on behalf of herself, the Applicant. Ms Julie Ryan, appearing on behalf of the Respondent. Hearing 2023. 20 September 2023 Sydney (in person) Printed by authority of the Commonwealth Government Printer <PR766526> 1 Statement of Ferzana Yale, Exhibit R1, at [8] to [13]. 2 Statement of Ferzana Yale, Exhibit R1, at [15]. 3 Section 396 of the FW Act. 4 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 6Section 399 restricts the Commission’s ability to conduct hearings for unfair dismissal applications. 7 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 8 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 9 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 10 Exhibit A4. 11 Dibb v Commissioner of Taxation (2004) 136 FCR 388 at [35]. 12 Ibid at [44]. 13 Statement of Ferzana Yale, Exhibit R1, at [23] and [24]. 14 Statement of Ferzana Yale, Exhibit R1, attachment FY 4. 15 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 16 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 17 Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 18 [2007] FCA 388. -- 9 of 9 --