Brittany Bailey v Hunter Financial
[2020] FWC 3926
•27 JULY 2020
| [2020] FWC 3926 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brittany Bailey
v
Hunter Financial
(U2020/8918)
| Deputy President Saunders | NEWCASTLE, 27 JULY 2020 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
This decision concerns an application by Ms Brittany Bailey (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
The Applicant’s employment with Hunter Financial Planning (Respondent) was terminated with effect from 17 April 2020. The unfair dismissal application was lodged on 29 June 2020.
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 8 May 2020. The application was therefore filed 52 days 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). The Respondent opposes this request.
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]
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.
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.
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 now consider these matters in the context of the Application.
Reason for the delay
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]
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]
In her unfair dismissal application the Applicant gave the following explanation for the delay:
“I have been in the process of trying to dispute this matter with the business as they sacked me due to shortage of work due to COVID-19 but however since employed another staff member doing the same amount of hours as I was doing and are looking at hiring another two. I was the only person let go from the business, plus I am pregnant which they were fully aware of this fact at the time of dismissal.”
The Applicant was aware of the 21 day time limit and did not lodge her application late as a result of ignorance. In her response to the Commission dated 13 July 2020, the Applicant explained that:
at the time of her dismissal, the Applicant was in shock that her dismissal had occurred and after seeking some counsel as well as attempting without success to resolve her dispute with her former employer, the Applicant decided to lodge her application in the Commission;
the information the Applicant was disputing and the questions she was asking of the Respondent were not answered promptly and this led to the application being filed late; and
the Applicant believes she has been unfairly dismissed as a result of her pregnancy.
The Applicant further explained in her oral evidence that the delay in filing her application arose because she was seeking to obtain as much information as she could from the Respondent because she believes the reason given by the Respondent for her dismissal, namely her role not being busy enough due to COVID-19, was not an accurate reason for the termination of her employment.
The Respondent tendered emails between the Applicant and various managers on behalf of the Respondent in the period from 26 April 2020 to 1 May 2020. Those emails show that the Respondent provided a brief response to a number of the issues raised by the Applicant in her initial email of 26 April 2020. The Applicant was not satisfied with the responses provided by the Respondent but she did receive those responses in a timely manner.
On 11 May 2020, the General Manager employed by the Respondent sent a text message to the Applicant asking if she had received a separation certificate from the Respondent. On 18 June 2020, the Applicant sent an email to the Respondent in which she stated that she had not received a separation certificate and raised issues concerning the hiring by the Respondent of an administration employee and advertising for two new staff. Later on 18 June 2020, the General Manager of the Respondent responded by email to the Applicant. In that response, the General Manager addressed the issues raised by the Applicant in relation to the separation certificate and gave the following explanation about the hiring of new employees:
“To provide you some context on the two roles that have been advertised, these are both for experienced paraplanning/associate adviser roles. With the changeover of our licensee to Count, our required output to produce SOAs has increased therefore to maintain our existing client base these roles are required – these roles have not been created by an increase in work from new business. The admin role that you also referred to below, is different to the role that you were doing and while the initial employment start date was after COVID-19, the recruitment process started before COVID-19.”
On 23 June 2020, the General Manager of the Respondent emailed a copy of the employment separation certificate to the Applicant. Later on the same day, the Applicant sent a further email to the Respondent, complaining about incorrect information on the employment separation certificate and demanding a copy of her original contract, new contract and termination letter. On 5 July 2020, the General Manager of the Respondent emailed the documents requested to the Applicant.
Although I have sympathy for the Applicant’s circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The Respondent provided a brief response to the issues raised by the Applicant after the termination of her employment in a reasonable timeframe. In any event, it was not necessary for the Applicant to obtain any particular information from the Respondent to be able to complete and lodge her unfair dismissal application in the Commission. I am satisfied that the shock the Applicant felt in connection with her dismissal did not prevent her from making an unfair dismissal application and does not provide an acceptable or reasonable explanation for the delay.
The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the same day that 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
I accept that the Applicant engaged in extensive communication with the Respondent after her dismissal, raising a number of concerns in relation to the dismissal and seeking documents and information from the Respondent. I consider these steps to constitute ‘action to dispute the dismissal’. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any 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
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 and I do not repeat them here. Having examined these materials, it is apparent that the Respondent contends it terminated the Applicant’s employment on the grounds of redundancy. The Applicant contends that she was dismissed because she was pregnant and points to the hiring of additional employees after her dismissal. These issues involve contested questions of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
In all the circumstances, the merits of the Applicant’s unfair dismissal application are a neutral consideration in my assessment of whether exceptional circumstances exist.
Fairness as between the person and other persons in a similar position
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. 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
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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 Saunders
Appearances:
Ms Bailey, appearing on behalf of herself
Ms Sullivan, General Manager of Hunter Financial, appearing on behalf of the respondent
Hearing details:
2020.
Newcastle (by telephone):
22 July.
<PR721301>
[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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