Amy Knowles v The Trustee for the Pigdon Family Trust
[2024] FWC 1351
•22 MAY 2024
| [2024] FWC 1351 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amy Knowles
v
The Trustee For The Pigdon Family Trust
(U2024/3734)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 22 MAY 2024 |
Application for an unfair dismissal remedy – extension of time
The issue and outcome
On 1 April 2024, Ms Amy Knowles (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by The Trustee For The Pigdon Family Trust (the Respondent) on 18 January 2024 – the last day that the Applicant worked for the Respondent. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).
The Respondent objected to the application on several grounds. First, it was not a ‘national system employer’. Second, the Applicant had not been dismissed however, her last day of work had been 18 January 2024. Third, if there was a dismissal it was by way of genuine redundancy. Fourth, the unfair dismissal application had been filed outside of the statutory period prescribed by s 394(2) of the Act.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect and another, is whether the Applicant was protected from unfair dismissal.
In respect of whether the Applicant was protected from unfair dismissal, unquestionably, the parties are in dispute over whether the Applicant was employed by a national system employer and whether she was dismissed. The Applicant clearly considers the Respondent was a national system employer and she was dismissed, and the Respondent disagrees. However, there appears to be agreement that the unfair dismissal application was made out of time.
The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
For the reasons that follow, I have found that the Respondent was a national system employer at the relevant time. I have further found that the Applicant’s employment ended on 18 January 2024 by way of dismissal, and as such, the Applicant’s application was made some 53 days outside of the statutory period. However, having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
The Applicant commenced employment with the Respondent as an administration officer/receptionist on 29 April 2022.[2] Her duties and responsibilities extended to reconciling bank accounts, paying creditors, overseeing payroll and subcontractors, and keeping a record of all the financials.
The Applicant worked in a part-time capacity, working 20-26 hours a week.[3]
The Applicant said that on 18 January 2024, Mr David Pigdon, the director of ‘Pigdon Portables’ approached her at her desk and informed her that she was being made redundant as the business would be closed in the next few weeks.[4]
According to the Applicant’s evidence in her witness statement, Mr Pigdon asked her to attend work the next day to handover her work to his Personal Assistant, because the Personal Assistant would be continuing the Applicant’s job until the business closed.[5] The Applicant said that she questioned Mr Pigdon why she could not stay on and complete her job up until the closure.[6] His response, said the Applicant, was that the business was changing all the passwords. Having been dissatisfied with this response, the Applicant again asked why she should not continue, to which Mr Pigdon purportedly said, he could not give her (the Applicant) the hours she was currently doing.[7]
At hearing, the Applicant expanded upon the evidence in her witness statement, stating that on 18 January 2024, Mr Pigdon had provided her with two options. The first, to leave then and there, finishing on that day, or to come back the following week and he would find the Applicant some things to do, but she would not be doing her role anymore.
The Applicant stated that on the night of 18 January 2024, she sent an email to Mr Pigdon requesting a formal redundancy letter outlining the reason for the redundancy and a payout figure.[8] The Applicant said that she apologised in the email to Mr Pigdon noting that she would not be presenting for work the next day as her role had been made redundant.[9]
The Applicant reports having received a payment of $800.00 on 25 January 2024. The Respondent did not provide a payslip at this time to explain the payment.[10]
The Applicant again sent an email to Mr Pigdon on 31 January 2024, following up her request for a formal redundancy letter that outlined the reason for her redundancy, a payout, a payslip and a day’s wages, which she considered were owed.[11]
On 1 February 2024, the Applicant received an email from an accountant acting on behalf of Mr Pigdon. The accountant confirmed Mr Pigdon had received the Applicant’s emails and that the $800.00 paid was related to a final payment and the Respondent would transfer another $800.00 that day.[12] The Applicant confirmed she received $1,600.00.[13]
On 26 February 2024, the Applicant emailed the Respondent again requesting, amongst other matters, a response regarding her formal letter of redundancy, final pay and last day of wages.[14]
On 1 March 2024, the Applicant received a response from Mr Pigdon, which noted he was in consultation with Employsure, and that he was awaiting their guidance and instruction before proceeding further.[15]
The Applicant gave evidence that on receipt of that email she felt something was not right, but, nevertheless, she provided the Respondent with what she considered was reasonable time to contact Employsure and get back to her with her formal letter and payout summary.[16]
In her witness statement, the Applicant said that after a week had passed, she sought verification about her redundancy and realised the Respondent was still trading and was no closer to business closure.[17] The Applicant further stated that a new staff member had been hired to replace her.[18] The Applicant said that she then researched about unfair dismissal and subsequently made her application.
At hearing, the Applicant explained that prior to 1 March 2024, she thought her dismissal was by way of genuine redundancy, but having received Mr Pigdon’s email on 1 March 2024 stating he was in consultation with Employsure, she came to believe otherwise. The Applicant said that in good faith she gave the Respondent a couple of weeks and then she started to look to see if she had a legal right to claim.
Mr Pigdon gave evidence that that due to a business downturn and going through a divorce – which resulted in him having to consider selling or shutting down the business, he was concerned that the business would not be able to offer ongoing employment to the Applicant.[19] However, he denies having informed the Applicant that she would be made redundant from 18 January 2024, and states that he merely had an informal discussion with the Applicant as a courtesy to alert her to the situation because they worked in a close-knit team.[20]
Mr Pigdon stated that he informed the Applicant (presumedly on 18 January 2024) of the following:
a) if she had other work options or opportunities, she should pursue those because of the foreshadowed instability of the Respondent’s business and the Respondent would not be able to provide her with ongoing work;[21]
b) the work she was performing was very minimal and any remaining duties would be subsumed by Mr Pigdon’s Personal Assistant who was a contractor;[22] and
c) he anticipated there would be a transitional process which would include a training and handover period (presumedly to the Personal Assistant), because the Applicant held passwords for the MYOB software and the computer system, and Mr Pigdon was still considering what the process and period would be.[23]
Mr Pigdon acknowledges having received the email from the Applicant on 18 January 2024.[24] However, due to personal issues and financial difficulties with the business, he felt overwhelmed and did not respond at that time.[25] He notes that he instructed his accountant at a later point to pay the Applicant two weeks’ pay as good will,[26] and on 1 February 2024 his accountant noted to the Applicant why $1,600.00 had been paid and that Mr Pigdon’s intention was to finalise payment along with sending the appropriate letter the following week.
Mr Pigdon stated that as of 1 February 2024 the role of the Applicant ceased to exist, and he accepts that the final day of the Applicant’s employment was 18 January 2024.[27]
National system employer
It is uncontroversial that the Respondent operates a business based in Western Australia that sells and refurbishes buildings.[28] However, where the dispute lies is whether the Respondent is a national system employer. This, of course, has relevance to the proceedings on foot as the protections afforded by Part 3-2 of the Act are to national system employees who are, or were, employed by national system employers. In short, consideration of whether the Respondent is a trading corporation within the meaning of the Constitution and whether it is a national system employer within the meaning of ss 380 and 14 of the Act, is required.
If the trustee of a trust is an unincorporated entity, or an individual or partnership, indeed any entity other than a trading corporation, then the Commission would be unlikely to have jurisdiction to deal with the matter.[29]
The Respondent explained that it conducts its business operations through a trust that has two individuals and one company. The company, GBL Investments Pty Ltd AFT the Pigdon Family Trust does not conduct a business, nor pay any expenses of the trust, said the Respondent. According to the Respondent, the trust runs the business and pays all expenses including the payment of all staff wages. The Respondent emphasised that the Pigdon Family Trust is the entity that employs all the staff of the Respondent including the Applicant. The Pigdon Family Trust is said to be unincorporated.
The Respondent relied upon a document titled ‘Australian Government Australian Business Register ABN Lookup’. The entity name was ‘The Trustee for Pigdon Family Trust’ with an Australian Business Number of 16 037 685 320. The entity type was described as a ‘Discretionary Trading Trust’. The trading name was ‘Pigdon Portables’. The Respondent further relied upon a payslip for the Applicant, which stated ‘Pigdon Portables’ with the abovementioned ABN.
Whilst not filed when the opportunity was provided to the Respondent to provide its materials, at hearing the representative of the Respondent made reference to the Pigdon Family Trust Deed. As such and having considered such document to be of apparent relevance, I ordered the Respondent to produce a copy of the Trust Deed. The Trust Deed establishes the ‘The Pigdon Family Trust’ with Mr Pigdon and Ms Kerry Pigdon the specified beneficiaries, and the Trustee is named as GBL Investments Pty Ltd of 7 Hakea Place, Canningvale in Western Australia.
It would appear that the Pigdon Family Trust is not an entity but rather a structure set up as a matter of law to deal with ownership and operations of property and assets between the legal entity and the beneficiaries of the Trust.
Further, the relevant facts are not disputed. The Pigdon Family Trust appears to operate Pigdon Portables where the Applicant was employed. The Applicant was employed by the Trust. The Trustee is a registered corporation. Being a registered corporation, the Trustee is a trading corporation and as a consequence of that, it must be a national system employer.
Here, the Trust Deed creates an obligation imposed on the Trustee (GBL Investments Pty Ltd) and creates a Trust Fund. The Trustee is the entity that has responsibility for the Trust Fund though the holding of property and other assets, and creation of income to the Trust Fund for the beneficiaries of the Trust. The beneficiaries are those defined in the Fund as being the beneficiaries – Mr Pigdon and Ms Pigdon. The Pigdon Family Trust cannot be a legal entity at general law unless there is a statutory provision that treats it as a legal entity.[30] Here, the relevant statute is the Act and there is nothing within the Act that provides for any different treatment of trusts to the way trusts are treated in general law.[31]
I therefore find that the Respondent is a national system employer, and on that basis, consideration turns to whether an extension of time is warranted.
Extension of time
In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc),[32] the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[33] It appears to have been accepted by a Full Bench of this Commission that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless, and until, a further period has been granted.[34] According to the Full Bench, the proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[35]
It is uncontroversial that the Applicant’s last day of work was 18 January 2024 and that her employment ended on that date. Therefore, even if I am wrong with my finding that the Applicant was dismissed, it remains the case that her unfair dismissal application was still made out of time.
Turning to the dismissal argument, Mr Pigdon asserts that he did not dismiss the Applicant on 18 January 2024 and the Applicant asserts that Mr Pigdon provided her with a choice – to leave that day or to come back the following week and he would find the Applicant some things to do, but she would not be doing her role anymore. Whilst appreciative of the decision in Herc, having considered the evidence before me, I prefer the account of the Applicant as to the events of 18 January 2024. While Mr Pigdon may not have intended to communicate to the Applicant that her employment had ended on that day, I do consider that the content of his communication could readily have been perceived as an unequivocable choice to elect to finish that day or otherwise remain to provide a handover. As such, I find that on 18 January 2024, the Applicant’s dismissal had taken effect.
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[36] It is accepted that 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, can be considered exceptional.[37]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
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.[38]
4.1Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[39] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.[40]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[41] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[42]
In respect of the delay, the Applicant’s primary reason for the delay is that before 1 March 2024 she did not suspect that the redundancy of her position was not genuine, but thereafter she did, however, she allowed Mr Pigdon a couple of weeks to respond after having told her he was consulting with Employsure. The Applicant further noted that it then took some time to research whether she had a claim.
If I am to accept that prior to 1 March 2024, the Applicant legitimately held no concerns regarding the genuineness of her redundancy, the reasons for the delay occasioned between 2 March 2024 and the date of making her application, are, in my view, lacking in credibility.
Turning first to the assertion, insofar that it is made, that the Applicant had a lack of knowledge and awareness pertaining to available services supporting employment rights as well as accessibility and an understanding as to how she could access the Fair Work Commission service, it is accepted that ignorance of the law, nor a mistake of fact regarding lodgement timeframes (or a lack of knowledge of the same) do not weigh towards a finding of exceptional circumstances.[43] It follows that the Applicant’s lack of knowledge about the law does not assist in providing plausible explanation for the delay. This is particularly the case where the evidence does not manifest a sense of urgency in making the unfair dismissal application.
Furthermore, the Applicant pressed that a week after the email of 1 March 2024, she considered the redundancy of her position was not genuine because the business had not closed, and the Respondent had engaged another staff member. The latter assertion is speculative. The Applicant did not provide evidence of a purported hiring by the Respondent or a date as to when she became aware of the purported hiring. Furthermore, it is apparent from the Applicant’s evidence that as of 1 March 2024, she already considered that something was not right, but did not act upon it.
Whilst the Applicant may have been attempting to act in good faith by allowing the Respondent time to consult with Employsure, again this does not constitute a plausible reason for the delay. Allowing time for the Respondent to obtain legal or industrial advice, did not, in my view, preclude the Applicant from making an unfair dismissal application based on the circumstances before me.
In my view, the reasons for the delay when considered together are insufficient to explain part of, or the entirety of, the delay period. These findings in culmination weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21 day period.
4.2 Whether the person first became aware of the dismissal after it had taken effect
On 18 January 2024, the Applicant became aware that her employment would come to an end as this was the date on which the Applicant was informed that she could elect to accept the redundancy of her position and leave on that day, or otherwise, whilst her position would be redundant, she could remain employed during a transition period. It was therefore not the case that the Applicant was taken by surprise by the end of her employment.
Given the Applicant was informed of the redundancy of her position on 18 January 2024 and had accepted that her employment had come to an end on that same date, she had time in which to consider her options with respect to the recourse she could pursue. The evidence does not support a finding that she had been unaware of her dismissal. However, on balance, I consider this to be a neutral factor in respect of a finding of exceptional circumstances.
4.3 Action taken by the person to dispute the dismissal
The Applicant speaks of the steps she took to engage with the Respondent to alert it that she was seeking a formal letter regarding the redundancy of her position and her pay out, in addition to the provision of payslips.
I accept that the Applicant raised concerns with the Respondent relating to the financial aspect of the redundancy of her position, her end termination payment, and any unpaid wages, in addition to requesting a formal letter confirming the redundancy of her position. However, I am of the view that the Applicant did not take action to dispute what she alleged to be a redundancy of her position which was not genuine.
Having considered the totality of the evidence, I am not persuaded that the Applicant disputed her dismissal. On balance, the evidence does not favour a finding that the Applicant took action to dispute her dismissal but I am satisfied it is a neutral factor.
4.4 Prejudice to the employer
The Respondent submitted that the delay has caused it to suffer prejudice and in effect that the relevant prejudice is one that would not have been suffered had the application been made within 21 days of the dismissal taking effect.
In GHD Pty Ltd v Black,[44] it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[45] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[46] The length of the delay is not so long in this case, and whilst appreciative that the Respondent is a small business, I am not satisfied that the factor of ‘prejudice’ in this matter, weighs toward a finding of exceptional circumstances.
4.5 Merits of the application
In Telstra Network Technology Group v Kornicki,[47] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[48]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[49] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted, and the matter proceeded.
I do not agree with the Respondent’s assertion that the Applicant has made a frivolous claim and that her application is absent merit. Evidently, the Applicant considered, when making the application, that her position (the duties and responsibilities) was still required in the Respondent business and notwithstanding assertion of its foreseeable closure, the business of the Respondent continued to operate (purportedly some two and a half months after her discussion with Mr Pigdon on 18 January 2024). As to whether the redundancy of the Applicant’s position was genuine, or whether there was a redundancy of the Applicant’s position, very much turns on the evidence. There is a factual contest between the parties that would require determination at hearing.
However, it is not expected at this stage that the merits of the application or a jurisdictional objection to the same, would be fully explored. For the aforementioned reasons, it is not the case that I consider the application has no merit. However, I find the merits of the application in this case, to be a neutral factor.
4.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[50]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position, weighs strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
The Applicant has not provided a satisfactory explanation for the whole of the delay in making her application. The remaining matters I need to consider are otherwise neutral in this respect or do not weigh toward a finding of exceptional circumstances. Having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act, and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Amy Knowles, the Applicant
Sara Mansour for the Respondent
Hearing details:
2024
Perth (by telephone):
15 May.
[1] PR775179.
[2] Witness Statement of Amy Knowles, 35 (Knowles Statement).
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid 36.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Witness Statement of David Pigdon, [7] (Pigdon Statement).
[20] Ibid [9].
[21] Ibid [10].
[22] Ibid [11].
[23] Ibid [13].
[24] Ibid [15].
[25] Ibid [17].
[26] Ibid.
[27] Ibid [18] and [22].
[28] Respondent’s Outline of Submissions, [9].
[29] Comley v Blessing Holdings Pty Ltd as Trustee for the PJS Family Trust[2013] FWC 5008 (Comley).
[30] Ibid [13].
[31] Ibid.
[32] [2022] FWCFB 234.
[33] Ibid [15].
[34] Ibid.
[35] Ibid [17].
[36] (2011) 203 IR 1, 5 [13] (Nulty).
[37] Ibid 5 [13].
[38] (2018) 273 IR 156, 165 [38] (emphasis in original).
[39] Ibid [39].
[40] Ibid.
[41] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[42] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).
[43] See eg. Murray v Ambulance Victoria [2022] FWC 215 at [29], McIntosh v Barwon Health [2022] FWC 227, Nulty (n 36) [14].
[44] [2023] FWCFB 38, [51] (GHD).
[45] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd
(1995) 67 IR 298, 299-300.
[46] GHD (n 44) [51].
[47] (1997) 140 IR 1.
[48] Ibid 11.
[49] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[50] [2015] FWC 8885, [29].
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