Aisha Kliendienst v Colette Therese Brazier T/A Australian Dance Enterprises of New England

[2022] FWC 2917

[2022] FWC 2917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aisha Kliendienst
v

Colette Therese Brazier T/A Australian Dance Enterprises of New England

(U2022/9400)

COMMISSIONER MCKINNON SYDNEY, 2 NOVEMBER 2022

Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed

1. Ms Aisha Kliendienst was employed by Colette Brazier trading as Australian Dance Enterprises of New England from 20 February 2022 until 24 August 2022. On 20 September 2022, Ms Kliendienst applied for an unfair dismissal remedy. The application was filed 6 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Ms Kliendienst to make the application to the Commission.

1. I have decided not to allow an additional period for Ms Kliendienst to make the application. The application will be dismissed. These are my reasons.

Extension of time

1. Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

1. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:

“[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.”

1. The matters to be taken into account when deciding whether to grant additional time are set out in s.394(3) of the Act. These are:

·   the reason for the delay,

·   whether the person first became aware of the dismissal after it had taken effect,

·   any action taken by the person to dispute the dismissal,

·   prejudice to the employer (including prejudice caused by the delay),

·   the merits of the application, and

·   fairness as between the person and other persons in a similar position.

Relevant factors

1. Reason for delay: There are two reasons for delay. Firstly, Ms Kliendienst mistakenly believed the statutory filing time limit was 28 days rather than 21 days. This was despite having engaged lawyers to act on her behalf from the day after dismissal. It was only on 20 September 2022 that the error was brought to her attention, when Ms Kliendienst contacted a second law firm and gave instructions to file the application, which was done immediately.

1. Secondly, Ms Kliendienst was waiting for a response from Ms Brazier in relation to a proposal to settle “the terms of [her] departure” from the business, which never came. This was despite a phone call between lawyers for the parties on 25 August 2022, during which Ms Kliendienst was invited to put forward a proposal for settlement, a letter of proposal sent on 2 September 2022 and a follow up letter on 13 September 2022 and one or more unreturned phone calls.

1. Ms Kliendienst also submits that Ms Brazier’s conduct in ‘sitting on her hands’ rather than responding to entreaties made on her behalf caused at least part of the delay and constitutes an exceptional circumstance. This is on the basis that the entreaties were effectively invited by Ms Brazier and her lawyer and then ignored, thwarting her from raising issues about the dismissal and ultimately, from bringing this claim on time.

1. Whether the person first became aware of the dismissal after it had taken effect: Ms Kliendienst knew of the dismissal immediately when it is alleged that she was told “don’t bother coming back” on 24 August 2022 and handed a letter of termination. The dismissal took effect that day.

1. Any action taken by the person to dispute the dismissal: Through her lawyers, Ms Kliendienst called Ms Brazier’s lawyers on 25 August 2022 seeking information about the dismissal. Her lawyers wrote to Ms Brazier’s lawyers on 2 September 2022 denying that Ms Kliendienst was guilty of serious misconduct, reserving her rights in relation to her employment entitlements and proposing a non-monetary settlement of the employment relationship. No response was received from Ms Brazier nor her lawyers. A follow up letter on 13 September 2022 from Ms Kliendienst’s lawyers sought a reply to the earlier letter of 2 September 2022. At this time, Ms Kliendienst believed she had 28 days to make an unfair dismissal claim. On the 27^th day after her dismissal, Ms Kliendienst contacted an employment lawyer and was told about the 21-day deadline. She immediately gave instructions for an unfair dismissal claim to be made and the application was filed that same day, on 20 September 2022.

1. Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to Ms Brazier if the application proceeds 6 days late.

1. Merits of the application: Ms Kliendienst was dismissed in connection with alleged comments denigrating both Ms Brazier and her business that devolved into group chanting of the same comments, including by students of the business, in a public forum. The business is a small business and the Small Business Fair Dismissal Code applies. It is not yet known what information Ms Brazier relied upon in forming the belief that Ms Kliendienst had engaged in serious misconduct. There appear to be factual disputes about critical facts in issue. Each party has an arguable case in relation whether the dismissal was unfair. A proper assessment of the merits would require a hearing where all relevant facts and evidence were able to be presented.

1. Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

Conclusion

1. On balance, I am not persuaded that there are exceptional circumstances in this case such that additional time could be allowed to Ms Kliendienst to make her application. There is nothing unusual about a mistaken belief as to either the existence of a statutory timeframe or its duration. Ms Kliendienst had access to legal advice immediately following the dismissal, and throughout the 21-day filing period. The proposal put by her lawyers to Ms Brazier on 2 September 2022 was focused not on restoration of the employment relationship but on her employment entitlements and the effect of continuing obligations that purported to prevent her from working for 12 months. While the allegation of serious misconduct was denied, the possibility of an unfair dismissal claim was not raised.

1. Ms Kliendienst was waiting for a response from Ms Brazier in relation to the issues that she had raised, but that does not explain why she waited so long before finally giving instructions to her lawyer to make an unfair dismissal claim. Even if Ms Brazier can be said to have contributed to the delay, responsibility for making the application on time rested with Ms Kliendienst. It was, or should have been, apparent by 13 September 2022 that waiting for Ms Brazier to respond was not producing results. Had the application been made on that day, or even the day after, it would have been in time.

1. It was also not necessary to procure a response from Ms Brazier so that the application could be made. Ms Brazier’s failure to give reasons for dismissal forms part of why Ms Kliendienst alleges that the dismissal was unfair. To the extent that she was waiting for an answer to proposed settlement terms, it was not necessary to defer the application on this account. Settlement discussions can occur at any time. Instead, no steps were taken to preserve Ms Kliendienst’s position in relation to an unfair dismissal claim until well after the 21-day filing period had passed. In my view, this is because the decision to apply for an unfair dismissal remedy was not made until the day the application was lodged.

1. As the circumstances in this case are not exceptional, additional time cannot be allowed to Ms Kliendienst to make her application. Even if the circumstances were exceptional, on balance I would not exercise my discretion to allow additional time to Ms Kliendienst to make her application to the Commission because each the various factors, individually and together, are either neutral considerations (prejudice, merits and fairness) or tend against such an exercise of discretion (reasons, knowledge and inaction).

1. The application is dismissed.

COMMISSIONER

Appearances:

B Powles of PCC Employment Lawyers for the applicant.
C Zucker of Zucker Legal for the respondent.

Hearing details:

2022.
Sydney (by video):
November 2.

[1] [2011] 203 IR 1 at [13].

Printed by authority of the Commonwealth Government Printer

<PR747529>