Breanna Russell v Southgate Inn Pty Ltd
[2024] FWC 3521
•17 DECEMBER 2024
| [2024] FWC 3521 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Breanna Russell
v
Southgate Inn Pty Ltd
(U2024/11583)
| COMMISSIONER CRAWFORD | SYDNEY, 17 DECEMBER 2024 |
Unfair dismissal application filed out of time – no exceptional circumstances – extension of time not granted – application dismissed.
Background
Breanna Russell commenced casual employment with Southgate Inn Pty Ltd (Southgate Inn) as a Food and Beverage Attendant on around 17 January 2022. Ms Russell was involved in a heated argument with her manager, Laarn White, during a meeting on 2 August 2024. The parties have differing views about what was said in the meeting, but it is clear the meeting did not end well, as at the conclusion of the meeting Ms Russell swore aggressively at Mr White and subsequently left the premises. This outburst led to Southgate Inn deciding to cease offering shifts to Ms Russell on around 6 August 2024. The date of dismissal is not entirely clear, but I determine the dismissal took effect on 6 August 2024. Ms Russell referred to Southgate Inn suggesting she had resigned from her employment. I agree with Ms Russell that there is no evidence that she communicated a resignation and that the employment ended by way of a dismissal at the initiative of Southgate Inn. Ms Russell filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 29 September 2024. Given the dismissal date of 6 August 2024, the 21-day filing period ended on 27 August 2024. Ms Russell’s application was filed 33 days after that deadline. As a result, Ms Russell requires an extension of time to file the unfair dismissal application. This decision concerns whether an extension of time should be granted pursuant to s.394(3) of the FW Act.
I issued directions for the filing of material and listed a determinative conference/hearing for 11 December 2024 via video. Ms Russell represented herself at the determinative conference/hearing. I granted permission for Southgate Inn to be represented by Henry Coventry from HTA Legal because I was satisfied granting permission would enable the matter to be dealt with more efficiently. The parties agreed with my provisional view that the proceeding should be conducted as a less formal determinative conference.
Material filed
Ms Russell
Ms Russell’s unfair dismissal application contains evidence about why she missed the 21-day filing period and why she says she was unfairly dismissed. I marked Ms Russell’s application Exhibit A1.
Ms Russell provided further evidence in an email to the Commission dated 29 November 2024. The email referred to Ms Russell receiving some free legal assistance from a local lawyer. Ms Russell also filed the following documents which were attached to the email:
· A tax invoice which shows Ms Russell attended a medical appointment on 25 October 2024.
· A copy of a residential tenancy agreement.
· A written notice from Essential Energy stating that electricity will be disconnected. It is not clear from the document, but Ms Russell says this was issued in relation to her residence.
· Excerpts from Ms Russell’s bank account statement.
· Ms Russell’s payslip from Southgate Inn for the period of 29 July 2024 to 4 August 2024.
I marked Ms Russell’s email, and the attached documents, Exhibit A2.
Ms Russell was cross-examined on her evidence during the determinative conference. Ms Russell provided evidence about the meeting on 2 August 2024 and about why she missed the 21-day filing period.
Ms Russell provided oral submissions at the end of the determinative conference.
Southgate Inn
Southgate Inn relied on a witness statement from Drew Holgate (Group Operations Manager) dated 10 December 2024. The statement had a screenshot of a text message sent by Ms Russell to Mr Holgate on 9 August 2024 attached. Ms Russell’s message refers to her “untimely departure from the Pub Group”. Ms Russell refers to receiving legal advice about her unfair dismissal rights but states she has “chosen to move forward with new employment.” Mr Holgate sent a response on 12 August 2024 thanking Ms Russell for her service and wishing her all the best with the future. I marked Mr Holgate’s statement Exhibit R1. Mr Holgate was not required for cross-examination.
Southgate Inn provided written submissions dated 10 December 2024. Mr Coventry provided oral submissions at the end of the determinative conference.
Statutory provisions
Under s. 394(3) of the FW 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 Ms Russell first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms Russell 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 Ms Russell and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
Consideration – should an extension of time be granted?
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 August 2024. The delay is the period commencing immediately after that time until 29 September 2024, although circumstances arising prior to that period 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]
Ms Russell 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 Ms Russell has not provided any reason for any part of the delay.[4]
Ms Russell referred to the following reasons for the delay in the filing of her unfair dismissal application:
· Not being aware of her legal rights.
· Financial distress.
· Mental and physical stress.
It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[5] Ms Russell’s alleged lack of awareness of her legal rights is not a satisfactory explanation for the delay.
It is well-established that 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, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[6]
I accept that Ms Russell has been facing some financial difficulties. However, there is insufficient evidence to demonstrate why these financial difficulties prevented Ms Russell from filing an unfair dismissal application until 29 September 2024. I do not accept Ms Russell’s financial difficulties explain the late filing.
It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[7] The stress or distress 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.[8]
I am not satisfied Ms Russell has provided sufficient evidence to establish that a medical condition was the reason for her late application. The only medical evidence provided by Ms Russell is a receipt for an appointment Ms Russell attended around one month after her application was filed. That evidence does not explain why Ms Russell did not file the application until 29 September 2024.
I find Ms Russell does not have an adequate explanation regarding the delay in the filing of her unfair dismissal application. I find this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
Did Ms Russell first become aware of the dismissal after it had taken effect?
I consider Ms Russell was aware of her dismissal around the time it took effect on 6 August 2024. The date of dismissal is not entirely clear because it was essentially a decision by Southgate Inn not to offer any more casual shifts. It is clear Ms Russell was aware she had been dismissed by 9 August 2024 because she sent a text message to Mr Holgate on that date concerning the end of her employment. I do not consider this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time in the circumstances of this case.
What action was taken by Ms Russell to dispute the dismissal?
It appears Ms Russell sought free legal assistance following her dismissal. I accept that was action taken to dispute the dismissal. I consider this factor weighs marginally in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Southgate Inn did not argue it has incurred any significant prejudice from the delay in the filing of Ms Russell’s application. I find prejudice to be a neutral factor.
What are the merits of the application?
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)”, or in this case, s.394(3)(e).[9]
Given what Ms Russell admitted saying to Mr White at the end of the meeting on 2 August 2024, I consider Ms Russell’s unfair dismissal application would be unlikely to succeed. Although it is clear Ms Russell felt aggrieved about what occurred the meeting, that does not excuse aggressively swearing at a manager. I find the merits weigh against a finding of exceptional circumstances and the granting of an extension of time.
Fairness as between Ms Russell and other persons in a similar position
Neither party argued fairness between Ms Russell and other persons in a similar position is relevant in this case. I find this be a neutral factor.
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.[10] 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.[11] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[12]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that Ms Russell has cleared the “high hurdle” of establishing exceptional circumstances. I have found that Ms Russell does not have a satisfactory reason for the delay and that the merits weigh against a finding of exceptional circumstances and the granting of an extension of time. Ms Russell’s action in seeking free legal advice is not sufficient to establish that there are exceptional circumstances.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances
Ms Russell representing herself.
Mr Coventry for Southgate Inn.
Determinative conference:
2024.
Sydney (by video via Microsoft Teams).
11 December.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis [2018] FWCFB 901, [39].
[4] Ibid [40].
[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].
[6] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[7] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda) [2018] FWCFB 1643, [38], [67].
[8] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Ibid [13].
[11] See ibid.
[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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