Brie-Anna Riley v The Springs Resort Pty Ltd

[2024] FWC 881

[2024] FWC 881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brie-Anna Riley
v

The Springs Resort Pty Ltd

(U2024/2356)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 5 APRIL 2024

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

1. This decision concerns an application by Ms Brie-Anna Riley (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, The Springs Resort Pty Ltd (Respondent).

1. The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).

1. I conducted a hearing, by telephone, on 4 April 2024 in relation to the Applicant’s request for an extension of time.

1. The Applicant’s dismissal from her employment with the Respondent took effect on 8 8 February 2024. The Applicant lodged her unfair dismissal application in the Commission at 10:40pm on 1 March 2024.

1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 29 February 2024. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). 

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1]  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.[2]

1. The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

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

(c)   any action taken by the person to dispute the dismissal;

(d)   prejudice to the employer (including prejudice caused by the delay);

(e)   the merits of the application; and

(f)    fairness as between the person and other persons in a similar position.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

1. The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

1. 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. 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.[5]

Relevant facts

1. The Applicant provided the following explanation for her delay in her email to the Commission dated 12 March 2024:

I do apologise for the delay, I had read it wrong and thought that the day I submitted it was my last day that I was able too. 

Due to a change of medication (causing brain fog and fatigue) I did not want to submit the application until I was out of the first few weeks of adjusting to ensure all of the information was correct and worded correctly.
I was awaiting payment from The Springs (final pay) to ensure that it was correct although it was incorrect and hasn't been adjusted. Another point to that is incorrect payments.
The way I was made to feel, treated and overworked had me in a very bad state prior to being terminated. Once terminated, I needed to take a step back and breath after everything that had happened. I could not do it straight away as I needed to breathe and work on my mental health finally. With no support at the company, I had pushed myself for way too long.
The way multiple employees were treated is not acceptable.
As stated,  due to a workplace injury I had to leave work. Upon returning I had the GM telling me that he was not happy that I did not get the list to him. I had left my laptop at work as I got bitten by a snake and had to leave in a hurry.
I was off after getting skin cancers removed and complications due to allergic reaction and healing issues, I am still having issues with both of these. Which is causing headaches, light headed, dizzy and Illness. This has been going on for awhile and still is.
Due to the stress, my endometriosis and psoriasis has been acting up quite badly and I have been struggling day to day with the issues.
I did not go in on the day I was terminated due to endometriosis. I was sent an email from the GM after our brief phone call when I explained I was unwell (with no mention of termination until he emailed me a few hours later) with no further communication other then giving me a deadline to return work property the following day (knowing that I was very unwell)
The day prior to being terminated, I was not treated nicely at all. The GM told me that he was waiting to hear from fair work to see what he could do (in other words to see if he could fire me) with no notice and no warnings.
When I mentioned that the owner had said that he appreciated the fact that I stepped up whilst we had no GM and he wasn’t on-site, the new GM got quite cagey and strange and the next time I spoke to him, he was waiting to hear from Fair work.

As mentioned earlier, other employees also have had issues with this employer.

I think my case should be looked into for myself, previous employees and for all current employees to ensure this kind of thing does not happen to anyone else. I know of one other case in particular that did get brought to your attention although I’m unsure of the result.
I do not think that the way myself and others have been treated is accepted nor should it be allowed to slide. I have been struggling with my health conditions a lot since December and it only got worse in January and is still not improving.

I had spent the weeks between termination and emailing you applying for jobs, working constantly at the 2 I had found and still looking for consistent work to ensure adequate financial flow and trying to heal, breath and destress from the circumstances leading to this. I needed to take my time to ensure that I would be okay.

1. The Applicant also provided letters from her general practitioner and psychologist. Those letters contain private medical information. I do not need to reproduce them in this decision. They support the Applicant’s statement that she has struggled with poor mental health due to work related stress since at least mid-2023. The letters from the Applicant’s general practitioner and psychologist do not state that she was incapacitated in the period from her dismissal on 8 February 2024 to the date she filed her unfair dismissal application in the Commission (1 March 2024).

1. The Applicant confirmed in her evidence that she was working two casual jobs in the period between her dismissal on 8 February 2024 and when she lodged her unfair dismissal application in the Commission on 1 March 2024. The first job involved the Applicant working between two and five days a week, mostly five hour shifts. The Applicant started this job just before she was dismissed by the Respondent on 8 February 2024. The second job involved the Applicant working about five to ten hours a week in a property maintenance role. In addition to working these two jobs, in the period between 8 February 2024 and 1 March 2024 the Applicant was seeking other employment opportunities and attended three interviews.

1. It is apparent from the evidence given by the Applicant that the immediate reason for the one day delay in filing her unfair dismissal application is a miscalculation by the Applicant as to when the 21 day period after her dismissal ended. It is not unusual, in my experience, for such mistakes to be made by applicants when filing an unfair dismissal or general protections application. Although I have sympathy for the health issues the Applicant has been dealing with since at least mid-2023, including the brain fog and fatigue the Applicant was experiencing as a result of changes to her medication in the period following her dismissal, the Applicant was able, in the period between her dismissal on 8 February 2024 and the filing of her application on 1 March 2024, to work two casual jobs, seek other employment opportunities and attend three interviews. Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, to provide a reasonable explanation for the delay in filing her unfair dismissal application.

1. The absence of a reasonable explanation for the delay in lodging the application on 1 March 2024 weighs against the Applicant’s contention that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant was notified of the dismissal on the day it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

1. There is no suggestion in the material before the Commission that the Applicant took any action to dispute her dismissal, other than lodging her unfair dismissal application in the Commission on 1 March 2024. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, together with the evidence and submissions made at the hearing on 4 April 2024, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

1. The Respondent dismissed the Applicant because it alleges that she did not meet operational requirements and realistic timeframes to meet those requirements. In particular, the Respondent contends that the Applicant failed to communicate effectively with her direct manager and other departments, failed to adequately train and develop the team members for whom she was responsible, and failed to fulfil general operational responsibilities within the food and beverage department.

1. The Applicant contends that she was not given adequate time for various tasks, including because she was off work on sick leave and leave due to a work-related injury. The Applicant also contends that the time for her to complete various tasks had not expired at the time she was dismissed on 8 February 2024. The Applicant was unable to attend a meeting with the Respondent on 8 February 2024 because she was unwell. The Applicant requested that the meeting be postponed or held by telephone. The Respondent rejected this request and instead emailed the termination letter to the Applicant at 12:45pm on 8 February 2024.

1. Having regard to all the circumstances, I consider that the Applicant has reasonable prospects of succeeding on the merits in her unfair dismissal application against the Respondent. There is no doubt that the Applicant was absent from work and dealing with health related matters in the period leading up to her dismissal. It is likely that this provided a reasonable basis for more time to be given to the Applicant to address the operational issues identified by the new General Manager of the Respondent. Further, it is apparent from the dates included in section 3.2 of the Respondent’s response to the Applicant’s unfair dismissal application that the time for various operational issues to be addressed by the Applicant had not expired at the time she was dismissed. The refusal of the Respondent to either adjourn or participate by telephone in a meeting with the Applicant on 8 February 2024 was procedurally unfair. It meant that the Applicant was not given an opportunity to discuss the termination of her employment with the Respondent. She was instead informed of her dismissal in a letter emailed to her on 8 February 2024.

1. The merits of the application weigh in support of a conclusion that there are exceptional circumstances.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

1. I have sympathy for the Applicant’s circumstances and the health difficulties she has faced prior to and since her dismissal. However, taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the merits of the Applicant’s unfair dismissal application weigh in the Applicant’s favour, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

1. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

B. Riley, self-represented
J. Dixon, for the Respondent

Hearing details:

2024.
Newcastle (by telephone):
4 April.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Long v Keolis Downer[2018] FWCFB 4109 at [40].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

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