Alexandra Heveldt v BBR Agency Pty Ltd
[2022] FWC 2962
•9 NOVEMBER 2022
| [2022] FWC 2962 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alexandra Heveldt
v
BBR Agency Pty Ltd
(U2022/8937)
| COMMISSIONER MCKINNON | SYDNEY, 9 NOVEMBER 2022 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Ms Alexandra Heveldt was employed by BBR Agency Pty Ltd (BBR Agency) from 29 November 2020 until she was dismissed on 12 August 2022. On 3 September 2022, Ms Heveldt applied for an unfair dismissal remedy against BBR Agency (identified by its Australian Business Number) but named its Founder/Director, Mr Vincent Hernandez, as the legal employer. On 17 October 2022, BBR Agency submitted to the jurisdiction as Ms Heveldt's former employer. I find that BBR Agency was the employer of Ms Heveldt at the time of dismissal. I have amended the application made by Ms Heveldt to replace the erroneous legal name of the employer (“Vincent Hernandez”) with the correct legal name of the employer, “BBR Agency Pty Ltd”.
The application by Ms Heveldt was made on the 1st day after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Ms Heveldt to make her application to the Commission.
I have decided not to allow an additional period for Ms Heveldt to make the application and to dismiss the application. These are my reasons.
Extension of time
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.
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.”
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
Reason for delay: The reason given for delay is that the dismissal occurred in a distressing manner over the telephone. Because of the likely effect on Ms Heveldt’s pre-existing mental health conditions, she decided not to proceed with an unfair dismissal case. Ms Heveldt changed her mind when she received her final pay from BBR Agency which is alleged to have been affected by a shortfall in the payment of her entitlements. Ms Heveldt submits that BBR Agency’s delay in paying her the final pay was a deliberate strategy designed to take advantage of her.
Whether the person first became aware of the dismissal after it had taken effect: Ms Heveldt knew of the dismissal immediately when it took effect during a telephone call with the Founder and Director of BBR Agency, Mr Vincent Hernandez, on the afternoon of 12 August 2022. The dismissal was subsequently confirmed by email exchange between the parties on 15 August 2022.
Any action taken by the person to dispute the dismissal: Ms Heveldt did not take any action to dispute the dismissal until she made this claim. After the telephone conversation with Mr Hernandez on 12 August 2022, Ms Heveldt wrote to Mr Hernandez on 15 August 2022 to say that she was really disappointed but that having had time to reflect over the weekend, she understood that the business would not be requiring her services any further. She set out what she understood to be her entitlements on termination of employment, provided a police report number for a missing laptop and thanked the business for the opportunity.
Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to BBR Agency if the application proceeds 1 day late.
Merits of the application: The reasons given for termination are in dispute except for one, involving Ms Heveldt arriving late for work. The other reasons are described by Ms Heveldt as ‘false’ and an attack on her character. BBR Agency also relies on the Small Business Fair Dismissal Code in its defence of the application. It is not possible to assess the merits of the case at this early stage when so much seems to be in dispute.
Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.
Conclusion
On balance, I am not persuaded that there are exceptional circumstances in this case that might favour additional time being allowed to Ms Heveldt to make her application. It is common, rather than exceptional, for a person to experience distress in connection with the termination of their employment and to choose not to pursue litigation which is likely to be stressful. There was no uncertainty as to the fact of dismissal. Ms Heveldt knew that she had lost her job on 12 August 2022 and by her email of 15 August 2022, accepted the disappointing decision. She thought about making an unfair dismissal claim in time but decided not to.
The change of mind coinciding with late payment of Ms Heveldt’s final pay is also not exceptional, despite the delay itself being unsatisfactory and potentially unlawful. There is no evidence to support the assertion that the delay was deliberately engaged to disadvantage Ms Heveldt. That said, it does appear that BBR Agency has underpaid Ms Heveldt by at least one weeks’ wages, representing the balance of notice of termination due under section 117 of the Act for her period of continuous service. This obligation cannot be avoided by contract. While I have no jurisdiction over the matter, I recommend that the underpayment be rectified by BBR Agency without further delay. If necessary, Ms Heveldt can seek advice from the Fair Work Ombudsman in relation to the alleged underpayment of wages.
The merits of the case are a neutral consideration because of the seriousness of the allegations, the majority of which are denied. The potential for prejudice to BBR Agency does not arise as there is none, and fairness is not a relevant consideration in the circumstances.
As there are no exceptional circumstances that would warrant an extension of time in this case, additional time cannot be allowed to Ms Heveldt to make the application.
The application is dismissed.
COMMISSIONER
Hearing details:
Determined on the papers.
[1] [2011] 203 IR 1 at [13].
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