Ashlee Reiger v Theircare Pty Ltd

[2024] FWC 2923

[2024] FWC 2923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ashlee Reiger

v

Theircare Pty Ltd

(U2024/9906)

COMMISSIONER TRAN MELBOURNE, 22 OCTOBER 2024

Application for an unfair dismissal remedy

1. On 22 August 2024, Ms Ashley Reiger applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Theircare Pty Ltd (the Employer/Respondent).

1. Ms Reiger says that her employer informed her that she was dismissed on Wednesday 24 July 2024, and her last day at work was Friday 26 July 2024. However, Ms Reiger also says she was confused about when her dismissal took effect because she did not receive a written letter of termination nor any payments.

1. Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period under s 394. I find, below, that Ms Reiger’s dismissal took effect on 26 July 2024. So, the statutory period of 21 days ended at midnight on Friday 16 August 2024. The application filed on 22 August 2024 was 6 days after the end of the statutory period.

1. Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. So, I dismiss the application. My reasons follow.

Background

1. Ms Reiger says that she started employment with Theircare on 9 January 2023 as an Educator.

1. Theircare says that she started employment with a subsidiary on 9 January 2023 and only started direct employment with Theircare Pty Ltd on 29 January 2024, which may mean that Ms Reiger did not complete the minimum employment period required in s 382(a) and 383. But it is not necessary for the purposes of this decision to deal with that issue. Also, I did not hear arguments nor receive evidence about it.

1. On 24 July 2024, Theircare dismissed Ms Reiger. It is not necessary for the purposes of this decision to go into detail about the reasons for Theircare dismissing Ms Reiger, but the reasons broadly related to conduct and performance.

1. Ms Reiger’s last day of work was 26 July 2024.

Materials / Evidence / Submissions

1. Directions were issued. Both parties filed materials in accordance with those directions. Ms Reiger also filed additional submissions and evidence on the day prior to the hearing.

1. Theircare only had a short period of time to review and prepare their response to the materials that were filed late and not in compliance with my directions. But Theircare sensibly did not seek an adjournment of the matter. It would also not be appropriate to further delay the determination of this matter, which had already been delayed by adjournment requests that I granted.

1. I determined that it was appropriate to accept the material filed late. The material was not substantial (being 21 pages long but consisted mostly of the Commission’s template document) nor did it raise new arguments which had not been raised in earlier material. While short, Theircare had adequate time to prepare a response.

1. Both parties were self-represented. I determined it was appropriate to proceed by way of determinative conference, which was held on 8 October 2024.

Relevant Law

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy 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).

1. Section 394(3) of the Act provides that:

[t]he 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.

1. The power to extend time is discretionary, but may only be exercised if first satisfied that there are exceptional circumstances.

1. Exceptional circumstances are those that out of the ordinary, or unusual, or special, or uncommon.

1. A single event can be exceptional, or a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.[1]

1. The consideration about whether there are exceptional circumstances requires a consideration of all relevant matters, assigning appropriate weight to each.[2]

Factors to take into account
394(3)(a) – the reason for the delay

1. Ms Reiger’s evidence and submission is that the reasons for the delay in lodging her application were:

·   she was confused about the dismissal date;

·   her mental health was affected by the dismissal;

·   she did not initially seek support or assistance due to her mental health and other personal reasons; and

·   when she sought assistance, she was confused about the correct process.

Confusion about dismissal date

1. I deal with this matter further below.

Mental health and not initially seeking support or assistance

1. Ms Reiger gave evidence that her mental health was affected by the dismissal and for weeks, she was unable to get out of bed. Ms Reiger says that she felt ashamed and embarrassed about being dismissed, completely hopeless and riddled with anxiety, and that for 3 weeks, she was not talking to nor engaging with anyone. Ms Reiger provided a brief medical certificate from her treating general practitioner. The medical certificate said that the doctor saw Ms Reiger on 25 September 2024 and described that she lacked motivation and was unable to initiate activity (among other matters). She was diagnosed as having depression, anxiety and situational distress.

1. Ms Reiger also gave evidence that she did not have her support system around in the weeks after her dismissal. This was because her parents went on long overdue and much needed holiday, which started a few days after she was dismissed. They returned on the 20^th day after her dismissal. Ms Reiger said that she did not wish to tell them that she had been dismissed as she was concerned that if she did so, they would not go on the holiday. She only told her mother after her parents returned from their holiday.

Ignorance of the unfair dismissal application process

1. Ms Reiger also gave evidence that, as she had never been fired before, she did not know of the correct process to lodge an application. Ms Reiger gave evidence that, on 15 August 2024 after speaking with her mother, she sought assistance from Unfair Dismissals Australia. She says that she mistakenly believed that, by contacting Unfair Dismissals Australia, she had lodged her application with the Commission. Ms Reiger said that it was only after Unfair Dismissals Australia requested payment that she realised they may not have been the correct place to lodge her application. Ms Reiger says that it was about a week between when she contacted Unfair Dismissals Australia and when they requested payment. Aside from Ms Reiger’s oral evidence, she did not provide any documents of the communication between her and Unfair Dismissals Australia.

1. I asked Ms Reiger if, when communicating with Unfair Dismissals Australia, she was advised of the time limit for filing her application. She says that she was not. If this is accurate, it is negligent for any advisor to fail to inform and explain to an applicant the short and strict time limits in dismissal matters under the Act. If it took Unfair Dismissals Australia a week to respond to Ms Reiger, this is also negligent of any advisor purporting to be expert in dismissal matters.

1. It is not unusual to be unaware of time limits or the correct process.[3] But I do not find Ms Reiger’s reasons for the delay being related to her initial contact with Unfair Dismissals Australia, instead of the Commission, to be credible. A web search for ‘unfair dismissals Australia’ brings results that describe Unfair Dismissals Australia as ‘industrial relations consultants’, ‘fair work representative’ and ‘legal services’. They do no more than indicate that they offer representation. Within the top 5 results for the above search, information from the Fair Work Commission and the Fair Work Ombudsman appear.

Summary regarding reasons for the delay

1. I consider that Ms Reiger did not provide sufficient reasons for the delay, which is the period after the 21 days has ended and before the application is filed.[4] Ms Reiger provided credible and understandable reasons only for why she was unable or unwilling to seek assistance prior to the 21-day time limit ending.

1. While medical evidence is not essential, past cases indicate that there needs to be evidence about how medical reasons affected an applicant’s capacity to complete and lodge the reasonably straightforward unfair dismissal application form.[5] I accept the medical evidence, but it does not sufficiently explain the reasons for the 6-day delay after the time period ended. In Ms Reiger’s situation, her medical reasons and the lack of support occur within the statutory time period. Her parents returned from their holiday before the period expired. Ms Reiger did then take steps within the time limit but nevertheless did not file an application with the Commission until 6 days after the time limit.

1. Understandably, it is not unusual or out of the ordinary to be distressed following termination of employment. Nor is it unusual to be unaware of time limits or the process. Even if I was satisfied that Ms Reiger had given credible reasons for the delay, I consider this factor does not weigh in favour of a finding of exceptional circumstances.

394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

1. Ms Reiger’s evidence is that she was aware that she was dismissed and that her last day of work was Friday 26 July 2024. She says that she was confused about when ‘the dismissal took effect’ because she was told during the dismissal meeting that she would be given 2 weeks’ notice. She then did not receive anything in writing, such as a written letter of termination or a separation certificate, nor any payments, and when she tried to follow up, Theircare did not respond to her. She eventually received a separation certificate on 27 August 2024 and payments in early September 2024.

1. I observe that Ms Reiger’s evidence of her attempts to follow up with Theircare all occurred after the expiry of the 21 day time limit.

1. Ms Reiger’s evidence is clear that she was well aware that her employment had ended. She was aware of it when it happened, including taking the opportunity to say goodbye to colleagues, teachers, parents and children where she worked. Ms Reiger gave evidence that she was told to ‘leave quietly on Friday 26 July and to not make a scene.’ She also returned her keys on Friday 26 July 2024.

1. I find that Ms Reiger first became aware of her dismissal at the time it occurred as she was told in person. While it is unsatisfactory that an employer of the size of Theircare did not provide written notice of termination of employment nor make a payment in lieu of notice as required by s 117, this does not invalidate the termination of employment, which is a question of fact.[6] Ms Reiger’s clearly knew that her employment had ended on 26 July 2024.

1. I consider that this factor does not weigh in favour of finding exceptional circumstances.

394(3)(c) – any action taken by the person to dispute the dismissal

1. It is not clear from the evidence that Ms Reiger took any action to challenge her dismissal until after the 21 day period ended. Ms Reiger gave oral and documentary evidence of attempts she made to contact her employer. These all occurred after the 21-day period and were not challenges to the fairness of the dismissal but was about payments, which she had not received.

1. The Act and recent Federal Court decisions[7] requires that payments in lieu of notice and for accrued but untaken annual leave must be made when employment ends. It is unsatisfactory that an employer of the size of Theircare did not do so. But a failure does not demonstrate that the dismissal was unfair. It is a contravention of the Act for which a court could impose civil penalties.

1. Ms Reiger followed up on payments and a separation certificate. She did not take action to dispute the dismissal. This factor does not weigh in favour of exceptional circumstances.

394(3)(d) – prejudice to the employer (including prejudice caused by the delay)

1. Neither party made submissions in relation to this factor. The delay was 6 days and therefore not a long period of time. I consider that this factor neither weighs in favour nor against a finding of exceptional circumstances.

394(3)(e) – the merits of the application

1. My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[8] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[9]

1. Ms Reiger’s evidence is that she was called into a meeting and informed that her employment was terminated. She says that she had not been warned that her conduct or performance might lead to termination of employment and that she did not have an opportunity to dissuade Theircare from dismissing her.

1. Theircare’s evidence and submissions is that it had valid reasons to dismiss Ms Reiger relating to her conduct and performance, and that she had received warnings, including formal written warnings. Theircare also appeared to accept that there had been failings in the process.

1. Ms Reiger does have an arguable case, and so this factor weighs in favour of a finding of exceptional circumstances.

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

1. This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[10] The Full Bench in Croker v Erndit Logistics Pty Ltd has indicated that this factor may involve a comparison of cases involving similar facts.[11]

1. There are many cases with similar facts to Ms Reiger, where an applicant’s mental health is affected by the dismissal and their hopelessness, distress and lack of knowledge about the Commission’s processes results in not making an application within time. In very few cases, has there been a finding of exceptional circumstances. Where there have been, there has been significant and probative medical evidence,[12] or other factors that magnify or make exceptional the lack of knowledge and familiarity.[13] In Bara, the applicant was a PALM scheme worker with limited proficiency in English. The Department of Workplace Relations and his employer gave him differing advice about how to challenge his dismissal. He was also required to leave Australia because his employment had ended.

1. Ms Reiger has not provided relevant probative medical evidence, nor are there any factors that magnify her lack of knowledge and familiarity with Commission processes. I consider that this factor weighs against a finding of exceptional circumstances.

Conclusion and Order

1. I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time. Ms Reiger was aware of her dismissal at the time it took effect and failed to provide satisfactory reasons for the delay in making the application.

1. I therefore dismiss Ms Reiger’s application for an unfair dismissal remedy under matter number U2024/9906.

COMMISSIONER

Appearances:

Ms Ashlee Reiger, on her own behalf
Mr Michael Abela, Manager Director on the respondent’s behalf

Hearing details:

Melbourne
8 October
2024

[1] see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] and case law summarised in that decision.

[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39].

[3] see  Shergill v Dairy Technical Services Ltd [2014] FWC 495 at [25].

[4] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31].

[5] See Bagster v Add Staff Recruitment T/A Add Staff Recruitment [2020] FWC 6109 and Wallwork v Astec Australia Pty Ltd [2020] FWC 6125.

[6] see Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [32]; see also also Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 at [206]; Cody v Stratacache Australia Pty Ltd [2022] FWCFB 116 at [29].

[7] for payment in lieu of notice, see Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 at [192]; for accrued but untaken annual leave, see Dorsch v HEAD Oceania Pty Ltd (Penalty) [2024] FCA 484 at [15] & [16]

[8] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26].

[9] [2018] FWCFB 4109 at [72].

[10] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41].

[11] [2023] FWCFB 224 at [49].

[12] see Ramirez v Pinnacle ACT Pty Ltd & ors [2024] FWC 638.

[13] see Bara v JBS Australia Pty Limited[2024] FWC 2428.

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