Belinda Smith v The Trustee for Solar Power Trust
[2024] FWC 1175
•9 MAY 2024
| [2024] FWC 1175 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Belinda Smith
v
The Trustee For Solar Power Trust
(U2024/3383)
| DEPUTY PRESIDENT BELL | MELBOURNE, 9 MAY 2024 |
Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – application dismissed.
On 25 March 2024, Ms Belinda Smith made an application to the Fair Work Commission (the Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Smith alleges she was unfairly dismissed by the respondent, The Trustee For Solar Power Trust. The respondent agrees that Ms Smith was dismissed from her employment but denies the dismissal was unfair.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. In Ms Smith’s Form F2, she states her dismissal took effect on 23 October 2023, making her unfair dismissal application about 133 days outside the 21-day timeframe. The Commission must therefore determine in the first instance whether an extension of time should be granted for the making of the application.
On 8 April 2024, I issued directions for the filing of evidence and submissions. In compliance with those directions, Ms Smith filed emails submissions and a statement on her own behalf, together with various supporting documents. She also filed a statement of Mr Simon Parnell, who was a witness and a support person. I have also had regard to material filed by Ms Smith on 11 April 2024, shortly prior to a mention hearing I conducted. The respondent filed a Form F3 response, which attached some documents that I have had regard to. Consistent with directions often issued in extension of time matters, the employer was not required to file evidence (and did not do so), although it filed a short email by way of submission opposing any grant of extension.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account:
(a) the reason for the delay; and
(b) whether the applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the applicant 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 applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
I set out my consideration of each matter below.
Section 394(3)(a) - Reason for the delay
In her ‘Form F2’ application, Ms Smith states that the termination of her employment took effect on 23 October 2023, a matter confirmed in her evidence – including with a copy of the letter of termination - and which was not in dispute. The employer’s ‘Form F3’ response specified the same date. I am satisfied that the date the dismissal took effect was 23 October 2023.
In order to comply with the 21-day period specified by s 394(3)(a), Ms Smith ought to have made her application for an unfair dismissal remedy by 13 November 2023. In the circumstances, her application was 133 days late.
The delay is the period commencing immediately after the 21-day period specified in s 394(3)(a) until when the dismissal application was lodged on 25 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4] This is because the reason for delay is a factor forming part of the overall assessment required by s 394(3).[5]
In Ms Smith’s Outline of Argument in support of an extension of time, she states that the reason for the delay is as follows:
“The reason for the delay in my application is due to my status as a victim of family and domestic violence. I have been subjected to the manipulative and controlling behavior of my abuser, which caused me immense anxiety until just recently. This situation severely impacted my mental health, not only during the period leading up to my dismissal but also for a considerable time after the 21-day application period for an unfair dismissal claim.”
Ms Smith’s witness statement set out evidence to support her submissions. Having regard to the nature of the allegations, I will only provide a summary (with some specific aspects omitted, although I have had regard to them), which is as follows:
· At least beginning 13 June 2023, Ms Smith states that she was subject to allegations from a former partner that were reported to the police.[6] She became aware of matters on that date following a call from the police. She states that those allegations were ultimately found to be unsubstantiated and amounted to trivial provocations.
· On 6 July 2023, Ms Smith filed for a divorce. While the specifics of that court application were not provided, Ms Smith states that it was emotionally taxing and resulted in financial strain and significant concerns about changes to custody arrangements.
· On 18 January 2024, a declaration in support of a domestic violence order application was made against Ms Smith. It is not clear if it was served on her that day but she became aware of it at around that time.
· Ms Smith states that she learnt she was cleared of the allegations into the investigation described above on 19 January 2024. Notwithstanding being cleared, Ms Smith states (and I accept) that the investigation added to the stress and anxiety she was already experiencing due to her loss of employment.
· On 22 January 2024, Ms Smith filed a counter-complaint alleging domestic violence. The complaint lodged by Ms Smith was listed for hearing on 28 February 2024.
· A hearing for the complaint made against Ms Smith was held on 24 January 2024. Ms Smith states that due to her lack of understanding of legal procedures and the short time to seek advice, a Temporary Protection Order was made against her that date.
· On 6 March 2024, Ms Smith states that both domestic violence order application made against her and the application she made were “reconciled” at a court appearance on that date. A heavily redacted copy of undertakings that presumably reflect that reconciliation were included with Ms Smith’s statement.
· On 25 March 2024, Ms Smith made her application for an unfair dismissal remedy.
Ms Smith also states that she confided with a friend about the termination of her employment. The friend suggested that Ms Smith lodge a complaint with Fair Work but, at the time, Ms Smith states she felt overwhelmed and believed that another legal battle was beyond her capacity at the time.
More generally, Ms Smith’s evidence describes that she is receiving counselling. She states that as a result of the combination of the various challenges I have summarised above, she has been left in a fragile state, and was unable to effectively manage the additional legal matter of an unfair dismissal application until the domestic violence applications were resolved. In material filed shortly prior to a mention hearing for this matter, Ms Smith stated she suffered from headaches daily and lacked the concentration to perform her daily duties.
Mr Parnell, who gave evidence in support of Ms Smith, has known Ms Smith for two and a half years. Based on his observations of Ms Smith, his view is that Ms Smith has been experiencing significant anxiety and stress, impacting her mental health.
Ms Smith referred to Emily Campagnolo v My Skin Admin (Vic) Pty Ltd [2023] FWC 2893 (Campagnolo), a matter involving domestic violence where Commissioner Connolly granted an extension of time to an unfair dismissal application that was filed late. While Ms Smith raised this element in her submissions concerning s 394(3)(f) – being fairness between the applicant and other persons in a similar position – I have also had regard to it here. Ms Smith acknowledged in her submissions that the circumstances in Campagnolo were not the same for her. That acknowledgement was correctly made and, in addition to the difficulties in applying the factual circumstances of one case to the different circumstances of another case, the delay in Campagnolo was significantly less than the delay before me.
Ms Smith submits, both in her written submissions and orally before me, that her level of anxiety from the time of her dismissal until the time she filed her application was such that could not lodge her unfair dismissal application earlier.
I do not wish to understate the challenges and stresses that Ms Smith was experiencing generally since June 2023. However, putting aside particular times which I give greater leeway to as being clearly stressful – e.g. being informed in June 2023 of a police complaint against her and being served with a domestic violence order application in January 2024 – I am not satisfied that the evidence rises to such a level to properly or reasonably explain the length of delay taken to file the unfair dismissal application.
I consider that the reasons proffered for a delay are a factor pointing against a finding of exceptional circumstances for the purposes of s 394(3).
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that Ms Smith was notified of the dismissal on 23 October 2023, being the same day it took effect. Therefore, she had the benefit of the full period of 21 days to lodge the unfair dismissal application.
I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[7]
The applicant’s evidence, which I accept, is that she discussed the basis of the dismissal with the employer the day after she was dismissed. Ms Smith states that the conversation ultimately “went around in circles”. Otherwise, she has not taken any action to dispute her dismissal apart from lodging her unfair dismissal application.
I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
In all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted.
In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.
The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a high level given the stage of the proceeding.
The employer states in its Form F3 response that the reason for dismissal was Ms Smith was “Not suited to position despite internal and external training being provided.” The letter of termination stated the matter a little differently. The termination letter alleged that Ms Smith did not “like performing some of the tasks required” with her role, even though those tasks were said to be “clearly identified to you when you applied for the position”. The letter stated that the employer has “given you every opportunity to grow into the role offering and providing training to assist with these tasks.” Correspondence between the applicant and employer was included in the employer’s material, which I infer was aimed at supporting its reasons for dismissal.
Ms Smith states that the dismissal was delivered to her without any consultation from her employer. She states that the reasons for her dismissal were not matters covered by her employment contract and there was no adverse disciplinary record prior to her dismissal. She indicates that the steps required in clause 4.22 of her contract were not complied with.
On the limited material before me, it is clear that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents involving more than one witness.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[8] and the same applies to s.394(3)(e).
For the purpose of this application, I consider that the merits of the claim is a matter to be treated neutrally.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
As noted above, Ms Smith raised the circumstances in Emily Campagnolo v My Skin Admin (Vic) Pty Ltd [2023] FWC 2893 in support of a submission concerning s 394(3)(f). I refer to the observations I made earlier.
For the purpose of this application, I consider that this is a matter to be treated neutrally.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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.[10]
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, it is a question of degree and insight. [11]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[12]
The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[13]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, an applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[14]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[15]
I have set out my findings for each of the factors in s 394(a) – (f) above.
While I acknowledge the real challenges that Ms Smith has faced since her dismissal, when having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[16] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
B. Smith on her own behalf
D. Page and L. Hedberg from the Respondent
Determinative conference details:
2024.
Melbourne (by Microsoft Teams):
May 7.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] See also Court Book pages 14 – 15, which describes aspects of Ms Smith’s personal history from about March 2021 to January 2024. Again, having regard to the nature of those matters, I have not included them in the narrative of my decision but I have had regard to them.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[13] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[16] PR774565
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