Bita Shams-Isfandabadi v Clear Dynamics Pty Ltd
[2023] FWC 1385
•15 JUNE 2023
| [2023] FWC 1385 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bita Shams-Isfandabadi
v
Clear Dynamics Pty Ltd
(U2023/3840)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 JUNE 2023 |
Application for an unfair dismissal remedy
Issue and outcome
Ms Bita Shams-Isfandabadi (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy, having been dismissed by Clear Dynamics Pty Ltd (the Respondent) on 31 March 2023. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act) and that the dismissal was a case of genuine redundancy. This decision deals with the out of time objection.
The Applicant concedes her application was filed on 4 May 2023 and was therefore submitted 13 days after the statutory deadline (due to be filed 21 April 2023). The Applicant primarily attributes the delay in filing her application on having discovered that the position of Senior Test Analyst was advertised as a vacancy by the Respondent on 28 April 2023. The Applicant contends that the vacancy is another name for the position of Senior Quality Assurance (QA) Officer, a position she held prior to the position being made redundant and her employment terminated.
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.
It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) 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.[1]
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted. For the reasons set out below, I am satisfied that there are exceptional circumstances and that it is fair and equitable for the timeframe for lodgement of the application to be extended to 4 May 2023.
Statutory framework
Section 394(2) of the Act allows the Commission to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. As noted, the factors in s 394(3) are taken into account when making such decision, as is the meaning attributed to this term by the Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[2] 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. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[3] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[4]
At the commencement of the hearing, the parties were referred to s 394(3) of the Act and the meaning of ‘exceptional circumstances.’ Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [4] of this decision. Each of these factors are considered below.
Consideration
3.1 Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[5] 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. 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.[6]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[7] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[8]
The Applicant commenced employment with the Respondent on 9 May 2022.[9]
The Applicant was engaged as a Senior QA Officer pursuant to a contract of employment signed on 10 April 2022. The Applicant occupied this role from 9 May 2022 until her role was made redundant on 31 March 2023.[10]
In her role, the Applicant performed the following duties (among others):
a) working with the project team and stakeholders to design and implement Test Strategy to deliver quality products;
b) analysing requirements and preparing and executing optimised test scenarios;
c) implementing risk-based testing techniques to ensure quality on time delivery of software;
d) creating test artifacts that maximise the efficiency of the test phases; and
e) contributing to quality assurance process improvements.[11]
According to Ms Roslyn Hames, Chief People Officer of the Respondent, in December 2022, the business went through an initial restructure resulting in 29 employees being terminated on the grounds of redundancy.[12] Following this, Mr Dimitri Lanssens was appointed as Chief Executive Officer on 9 January 2023 and Mr Jason Singh was appointed as Chief Financial Officer on 13 March 2023.[13]
Ms Hames said that in February 2023, a $10 million grant from the Victorian Government’s Breakthrough Victoria Fund was put on hold.[14] Around the same time, the business’s proposed acquisition of a technology company that had around 60 clients was also put on hold.[15] In addition to these issues, Ms Hames spoke of several customers’ non-compliance with payment milestones, and that the Respondent was dependent on the $10 million contract and acquisition to boost its revenue and solve issues with its cash flow.[16]
Ms Hames said that following these developments, in order to preserve its financial risk threshold, the business decided to (again) significantly reduce its employee headcount. In total, approximately 42 employees – reflecting 36% of the then workforce – were made redundant on 31 March 2023.[17] Ms Hames added that the employee headcount has remained stable and has not increased following these redundancies.[18]
A letter was provided to the Applicant on 30 March 2023 that set out information regarding the Respondent’s restructure, the impact of the restructure on the Applicant’s position, consultation had commenced, and redeployment was being considered.[19] On that same day, the Applicant attended a meeting via teleconference with representatives of the Respondent where the restructure was explained, and the Applicant was asked if she wanted to raise any matters.[20]
Ms Hames said the Respondent decided to make the Applicant’s role redundant and due to there being no redeployment opportunities available, it appears the Applicant’s employment was terminated effective 31 March 2023. Ms Hames said that at the time of the Applicant’s redundancy, the Respondent had no intention whatsoever to recruit any further Senior Q&A Officers (however named), or indeed recruit any further positions which had been made redundant on 31 March 2023.[21]
On 28 April 2023, the Respondent advertised for the role of Senior Test Analyst on LinkedIn.[22] Ms Hames acknowledged that the role was advertised as a full-time contract, which she says was an error on her behalf.[23] Ms Hames said that she had limited experience posting job advertisements using the LinkedIn tool and mistakenly selected the full-time option instead of the contract option.[24] Ms Hames said that the business always intended for the role to be a 6-month fixed (maximum) term contract and she subsequently clarified with the interested candidates that the role was a 6-month fixed-term contract, and indeed that was the role that was eventually filled.[25]
Ms Hames explained that the position was advertised after a key client of the Respondent indicated that existing work would be fast-tracked, and a licensing agreement would be extended from three years to five years.[26] According to Ms Hames, the Respondent only learned of these developments, which are soon to be finalised, after 31 March 2023. Also, said Ms Hames, on 6 April 2023, Mr Sam Thompson, QA Officer, provided his notice of resignation. Ms Hames stated that Mr Thompson performed a testing-related role that the Respondent regarded as equivalent to the Senior QA Officer role.[27] Further, given Mr Thompson’s 5-year tenure with the business and context knowledge of the customer and software outcomes he was assigned to test, Mr Thompson was considered by the business as a comparable replacement for the Senior QA Officer role, said Ms Hames.[28]
The 21-day statutory timeframe for filing the application expired at midnight on 21 April 2023. The Applicant’s application was received by the Commission on 4 May 2023, some five days after the vacancy was posted on LinkedIn.
The Applicant contends:
a) the vacancy was a for a full-time position;
b) at the time of the redundancy of her position, there were only four QA/Senior QA Officers remaining, and none had resigned from the day of her redundancy and at the time the redundant role was advertised (31 March 2023 – 28 April 2023); and
c) the resignation of the Senior QA Officer referred to in the Form F3 had the job title ‘Quality Assurance Enterprise Core’, and the advertised position was ‘Senior Test Analyst’ with a job description that is very different to the Quality Assurance Enterprise Core and very similar to the redundant role.
As to the reason for the delay, the Applicant said that on 28 April 2023, she discovered that the vacancy was advertised by the Respondent on the LinkedIn website. The Applicant’s evidence was that she had been checking LinkedIn for job advertisements given she was without work.
As noted, the Applicant contends that the vacancy is another name for the position of Senior QA Officer, a position she held prior to the position being made redundant and her employment terminated. The Applicant considered that her position was therefore not made genuinely redundant on 31 March 2023 as contended by the Respondent.
I accept that on 28 April 2023, the Applicant learned of the vacancy. I also accept the Applicant’s direct evidence that this led her to question the genuineness of the redundancy on the basis of her view that the vacancy was the same as the position which she previously held. While I make no findings as to the extent to which the advertised vacancy is similar to the Applicant’s position, or the bearing the vacancy may have upon the genuineness of the Applicant’s redundancy, I am persuaded on the evidence that the Applicant’s view was not unreasonably held.
Having identified the vacancy on the afternoon of Friday, 28 April 2023, I am satisfied that the Applicant took immediate steps on Monday, 1 May 2023 to enquire with the Fair Work Commission what steps she could take. The Applicant states that she was referred to a provider of free legal services and made an enquiry with them on Monday, 1 May 2023. However, at that time she was informed that their webpage was not functional. The Applicant thereafter applied to the legal provider for legal assistance on 3 May 2023 when its webpage became functional, only to be told that she was ineligible for assistance as her application was outside of jurisdiction. Having learned that no assistance would be provided by the legal provider, the next day, on 4 May 2023, the Applicant made her unfair dismissal application. The Respondent took no issue with the Applicant’s evidence in this respect.
Having regard to these matters, I am satisfied that the Applicant has provided an acceptable explanation for the whole of the delay. This weighs in favour of a grant of an extension.
3.2 Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of her dismissal on 31 March 2023. This was confirmed in a letter of the same date. She therefore had the full 21-day period to lodge her application for an unfair dismissal remedy. This might ordinarily weigh against the grant of an extension of time. However, I consider this to be a neutral consideration in light of the Applicant’s evidence, which I have accepted, that it was not until 28 April 2023 that she questioned the genuineness of the redundancy.
3.3 Action taken by the person to dispute the dismissal
The Applicant took no steps to dispute the dismissal prior to making the unfair dismissal application.
However, in the circumstances of this case, and noting that the Applicant lodged her application on 4 May 2023, I consider this to be a neutral factor.
3.4 Prejudice to the employer
Based on the evidence before me, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[29] 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.[30]
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.[31] 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.
It is apparent that the parties are in dispute as to the question of whether the dismissal was a genuine redundancy. The Applicant contends that her redundancy was not genuine because the position she held with the Respondent was advertised as a vacancy approximately one month after her dismissal was effected on 31 March 2023.
The Respondent submits that the Applicant was dismissed by reason of a genuine redundancy on 31 March 2023. It says that the position of Senior Test Analyst is not precisely the same role as that previously held by the Applicant (Senior QA Officer) but is content to acknowledge that the role is very similar although the advertised role was only for a six month fixed term contract. However, the Respondent relies upon the changed circumstances it faced (see paragraph [20]) following the redundancy of the Applicant’s role, to support its contention that the redundancy was genuine.
In light of this contest and noting the approach to be adopted in these types of matters, I have concluded this factor to be one that is neutral. There is simply insufficient material before me to make any detailed assessment as to the merits of the substantive application and, as observed, the Commission should not embark upon such analysis in determining whether to grant an extension of time.
3.6 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,[32] 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.[33]
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 based on the submissions filed, and 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. Having considered each of the statutory criteria and noting that a satisfactory explanation for the entire period of the delay has been accepted, I am satisfied that there are exceptional circumstances that support an extension of time to the date that the application was lodged. In such circumstances, and noting the absence of factors that weigh against granting such extension, I consider it fair and equitable to grant the extension sought.
The Respondent’s jurisdictional objection with respect to the timeframe for lodgement
is dismissed. Directions will issue shortly in respect of the application.
DEPUTY PRESIDENT
Appearances:
B Shams-Isfandabadi, Applicant.
M Kellock for the Respondent.
Hearing details:
2023.
Perth (by telephone):
13 June.
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] (2011) 203 IR 1.
[3] (2018) 273 IR 156.
[4] Ibid 165 [38].
[5] Ibid 162 [17].
[6] Ibid 165 [39].
[7] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[8] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[9] Form F2 Unfair dismissal application.
[10] Witness Statement of Roslyn Hames, [10].
[11] Ibid [13].
[12] Ibid [14].
[13] Ibid.
[14] Ibid [15].
[15] Ibid.
[16] Ibid.
[17] Ibid [16].
[18] Ibid [17], annexure RH-3.
[19] Ibid [17], annexure RH-4.
[20] Ibid [23].
[21] Ibid [25].
[22] Ibid [30], annexure RH-8.
[23] Ibid [31].
[24] Ibid.
[25] Ibid.
[26] Ibid [32].
[27] Ibid.
[28] Ibid.
[29] (1997) 140 IR 1.
[30] Ibid 11.
[31] 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, [38].
[32] [2015] FWC 8885.
[33] Ibid [29].
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