Alana O'Leary v Aprs Media Publications Pty Ltd T/A Aprs Media

[2020] FWC 4723

[2020] FWC 4723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alana O’Leary
v
APRS Media Publications Pty Ltd T/A APRS Media
(U2020/8737)

COMMISSIONER SPENCER BRISBANE, 11 SEPTEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – extension of time – application lodged out of time – extension not granted – application dismissed.

INTRODUCTION

[1] On 24 June 2020, Mrs Alana O’Leary (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the dismissal of her employment by the APRS Media Publications Pty Ltd T/A APRS Media (the Respondent) was harsh, unjust or unreasonable. The application was filed outside the statutory time limit. The parties were provided with Directions, setting out the legislative criteria to be considered. Conciliation discussions were held between the parties; the matter was not resolved. The Respondent engaged and responded during these discussions. The Applicant’s reasons for the delay, in lodging her application are set out below. The Respondent was requested to respond in writing to the reasons for the delay, however no response was provided other than the responses provided during conciliation.

[2] It was submitted by the Applicant, that her employment was terminated with effect on 25 May 2020, when a redundancy letter was issued by Mr Garth Wright, Managing Director of the Respondent. Accordingly, the application was lodged 30 days after the date of termination, being 9 days outside the statutory limit. This decision only concerns the jurisdictional issue, as to whether the discretion to extend the time limit pursuant to s.394(2)(b) of the Act, should be exercised.

[3] The Respondent employed the Applicant as the Editor of Life Begins Magazine from the period of 7 November 2016 until the dismissal on 25 May 2020. The Respondent set out that the termination of the Applicant’s employment was brought about by way of redundancy, as a result of the economic impact of the COVID-19 pandemic, on the Respondent’s operations.

[4] The Applicant submitted a statutory declaration dated 8 July 2020. The Applicant submitted that the reason for her delay in filing the application, was due to her pregnancy and the additional impact of COVID-19 on her circumstances. According to the Applicant, she was heavily pregnant at the time the 21-day statutory time limit applied and her energy level was extremely low. She stated that she was also caring for her other young child, while her husband was working. She also stated that she was anxious about the potential effect of the coronavirus on them. It was submitted, that the Respondent suffered no real prejudice, caused by the delay as the Applicant had taken steps to dispute the termination and challenged the Respondent’s conduct in which her name appeared next to the role of Editor, after the termination. Therefore, she submitted that this provided the appearance to clients, that she was still employed. The Applicant further contended that the redundancy was not genuine, given her name continued to be used against this role. She provided evidence of the website and social media updates, (containing her name) appearing after the date of dismissal.

[5] The Applicant was represented by Mr Steven Brnovic, of Counsel, with permission granted pursuant to s.596 of the Act.

[6] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT LEGISLATION

[7] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[8] In addition, the threshold test of ‘exceptional circumstances’ 1 in relation to the reasons for the delay must be considered. The definition of exceptional circumstances is set out further in this decision.

CONSIDERATION

[9] The submissions of both parties have been considered. As previously set out, s.394(2)(a) of the Act requires that an unfair dismissal application, must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(2)(b) of the Act. Section 394(3) sets out the criteria to be considered against which, if satisfied “exceptional circumstances” can be found, to allow for a further period for the filing of the Application.

[10] In considering the reasons for the delay the Full Bench decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis) 2 rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers3 which had concluded that in order for “exceptional circumstances” to be established, an Applicant must provide reasons for the whole of the period of delay in filing. In Stogiannidis the Full Bench stated:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”

[11] The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 4 as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[12] All of the relevant circumstances have been taken into account, for the period after the date of termination, until the lodgement of the Application with the Commission.

[13] The Applicant must provide reasons not just for the period of the delay in filing the Application, but in accordance with the approach in Stogiannidis, the whole period is considered. The reasons are considered with the other matters in s.394(3). The circumstances from the time of dismissal must be considered for the whole period and ultimately whether those circumstances are deemed to be ‘exceptional circumstances’. 5

[14] In accordance with s.394(3) the Commission must be satisfied that exceptional circumstances exist, taking into account the following criteria:

s.394(3)(a) - the reason for the delay

[15] The Applicant’s primary submission regarding the reasons for the delay, was that the delay was due to her pregnancy, Covid-19 and her submission that the redundancy was a misrepresentation, given her name and role continued to be represented to contributors to the magazine. The Applicant submitted that during the period of 15 June 2020 and 24 June 2020, she was experiencing low energy levels as she was heavily pregnant and was at home caring for her child or at medical appointments. The Applicant stated that she had limited family support due to her husband’s work and her father residing interstate. She stated that she was stressed and anxious due to Covid-19, the imminent birth of her second child and as such was unable to make an application to the Fair Work Commission. The reasons are acknowledged, however given the Applicant was able to contact her employer during this period, an application could have been made. The reasons do not provide a total impediment or cover the full period to act against lodgement.

Whether the person first became aware of the dismissal after it had taken effect (section 394(3)(b)) and any action taken by the person to dispute the dismissal (section 394(3)(c)).

[16] The Applicant submitted that she was notified of her redundancy on 25 May 2020 and the dismissal took effect that day. The Applicant provided emails dated 7, 8 and 12 May 2020 sent to the Respondent regarding issues around her entitlements and requests for amendments. On 25 May 2020, the Applicant emailed the Respondent regarding her redundancy entitlement and sought a response to a list of questions regarding her redundancy.

[17] On 26 May 2020, the Respondent replied to the Applicant’s email with answers to her queries. In the email reply, the Respondent reiterated the financial impact on the business from COVID-19 and how the decision was reached on paying the Applicant’s accrued leave entitlements.

[18] According to the Respondent’s reply, the Respondent had stood down the Applicant since March 2020, there was reference to the Jobkeeper payment, further he stated that there was an agreement between the Applicant and the Respondent to pay the accrued leave entitlements. The Respondent noted in the email that he was aware the Applicant had employment outside of the Respondent’s business. The Respondent stated that the pandemic had a significant effect on the business and the redundancy was genuine.

[19] The Applicant was aware of the redundancy decision on 25 May 2020 and as referred to, given the Applicant took action to contest matters with the Respondent, related to the dismissal. This favours that similarly; an application could have been made.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[20] The Applicant submitted that the Respondent would not suffer any prejudice, if the extension of time was granted, as the Respondent was at all times made aware that the Applicant contested the Respondent and was aware of this application. It was further submitted, that the length of the delay, being 9 days was not significant enough, to give rise to a general presumption of prejudice. The Applicant also acknowledged that the Respondent would then have to respond to the Applicant’s case, that he had continued to use her profile as Editor, to clients, after the redundancy date. It is improper that the Respondent did not correct the website. He maintained that he was left to undertake a range of duties. No significant prejudice to the employer was made out.

s.394(3)(e) - the merits of the application

[21] The Applicant submitted that her redundancy was not genuine, and the dismissal was harsh, unjust or unreasonable because the position of Editor is an essential role in the publication of a magazine. The Applicant provided evidence in the form of screenshots presenting the continued use of her name against this role on the website, (after termination) which she argued demonstrated that her job was not redundant. The Respondent stated that the continued use of the Applicant’s name was an oversight and not done as a deliberate misrepresentation, and that he had undertaken the duties.

[22] The Applicant submitted that the Respondent had continued to represent the Applicant as the Editor, to his advantage, and invite contributors etc to respond on the basis that they considered they were dealing with the Applicant.

[23] Further, the Applicant submitted that her role continued as new publications existed and the social media page was updated, however her profile continued to be represented as though she was still employed. She submitted however, that she had been unable to perform her role, as she had been locked out of her email access and then subsequently stood down.

[24] The Applicant submitted that she was not consulted or given an opportunity to respond to the redundancy and no alternative employment opportunities were offered to her. The redundancy process on the material was deficient, however the job was redundant. This matter is considered against the Applicant to the extent that the redundancy, on the material, was a redundancy. However, the flaws in the process would be considered against the Respondent.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[25] There was no reference by either party to persons in a similar position. The assessment of this matter requires the consideration of other persons dismissed by the same employer or consideration of the other persons generally who have sought an extension of time on similar grounds. No specific submissions were given on employees in a similar position. On the material provided, this criteria is not relevant, and therefore has been considered as neutral.

CONCLUSION

[26] In consideration of all these factors, and the overall circumstances, the impact of the pandemic together with the Applicant’s pregnancy is recognised, and the argument that there was a misrepresentation that the Applicant continued to be employed in her role and therefore the redundancy was not genuine. The reasons for the delay, when considered against the criteria set out in s.394(3), do not satisfy the test of ‘exceptional circumstances’, or provide a basis for the grant of an extension of time.

[27] Accordingly, pursuant to s.394(3) of the Act, the circumstances of the delay, were not circumstances considered to be “exceptional”. The discretion to extend the time limit under s.394(2)(b) and s.394(3) is, therefore not exercised to grant a further period to accept the Application.

[28] The Application made pursuant to s.394 is, therefore dismissed.

[29] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722470>

 1   CheyneLeanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

 2   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

 3   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403.

 4   Ibid.

 5   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [22].