Brooke Clarissa Carter v Asset Reports Pty Ltd
[2024] FWC 1390
•28 MAY 2024
| [2024] FWC 1390 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brooke Clarissa Carter
v
Asset Reports Pty Ltd
(U2024/2456)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 MAY 2024 |
Application for an unfair dismissal remedy – extension of time
Issue and outcome
Miss Brooke Clarissa Carter (the Applicant) applied for an unfair dismissal remedy having been dismissed from Asset Reports Pty Ltd (the Respondent) on 23 January 2024. The Applicant lodged her unfair dismissal application with the Commission on 5 March 2024, some 21 days outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time. This decision deals with that objection.
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. The other three preliminary matters are not presently relevant.
It is not contested that the unfair dismissal application was made out of time. However, for the Applicant’s unfair dismissal application to now proceed, it is necessary for her 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 issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.
The Applicant advanced several reasons why I should find that there are exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and it therefore follows that I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
The Respondent business operates in the real estate industry, providing property inspection services and reports.[2] It generates property inspection reports for its clients, which are required to be provided to clients before new tenants move into a property.[3]
The Applicant said she commenced her position with the Respondent on 15 February 2021 as an ‘On Road Consultant’, working in a full-time capacity.[4] However on 6 November 2023, she signed a new contract with the Respondent for part-time employment, working 30 hours per week.[5]
The Applicant outlined that several issues arose within the workplace that impacted upon her ability to service four properties a day, including the length of driving between jobs, property issues out of her control and traffic experienced when driving.[6] The Applicant stated that months after having a meeting with Ms Terri Mackintosh, the Respondent’s ‘Head of the Department’, where updated training and decreased driving between jobs to improve her performance was discussed, no training was provided to the Applicant and the amount of driving did not decrease.[7]
The Applicant said that on 21 January 2024, she became aware that her ‘workday’ had not been sent for Monday, 22 January 2024, and she questioned this in the ‘WhatsApp’ group chat. The Applicant further said that she was informed that she would need to be at the office at 9:30AM for a discussion.
According to the Applicant on 22 January 2024, she was informed by Ms Mackintosh that they were meeting to discuss reducing the Applicant’s days or looking for another place of employment. The Applicant said that during the meeting she was informed that Ms Andrea Williams, the Director of the Respondent, would not approve updated training or reduce the amount of driving engaged in by the Applicant during her work day.
However, in the same written witness statement, the Applicant gave evidence that at a meeting with Ms Mackintosh, on 22 January 2024, she was informed that her performance was good, and she was meeting the ‘quality’ of work requirements.[8]
The Applicant stated that on 23 January 2024, she was notified of her dismissal in a telephone discussion with Ms Williams.[9] According to the Applicant, Ms Williams provided reasons for her dismissal, an abridged version of that evidence is as follows:
a) the Applicant had been difficult to work with;
b) the Applicant was under the impression that she had been bullied in the workplace; and
c) the Applicant was underperforming and failing to meet the requirements of the role.
The Applicant explained that when Ms Williams purportedly referred to her as being ‘difficult to work with’ it described the Applicant’s unwillingness to: (a) work overtime for free; (b) complete jobs with uncooperative or hostile tenants/owners; (c) endanger her health around visually unwell/sick clients; and (d) continue to work in an environment that threatened her mental and physical health.[10]
The Applicant acknowledged that her purported performance issues included an inability to complete four properties under certain circumstances.
Ms Williams gave evidence of a litany of purported performance issues that plagued the Applicant. Issues included the Applicant’s failure to meet deadlines and upload reports and dictations,[11] the Applicant going missing for extended periods and being unresponsive to communications or requests from management,[12] the Applicant being abusive to the Respondent’s clients and often taking unpaid leave due to personal reasons.[13]
Ms Williams said that on 20 January 2024, the Respondent asked the Applicant to come into the office via message and the Applicant replied, ‘I am assuming I’m being let go, so no need for a phone call. I’ll send the Oppo (phone) and the fuel card to the office.’[14]
Ms Williams further said that on 22 January 2024, the Applicant came into the office in the morning and had a meeting with Ms Mackintosh about her employment.[15] Ms Williams notes that she was not working that day.[16] Ms Williams said that following that meeting, she was informed by Ms Mackintosh that Ms Mackintosh had sought advice from Employsure about the Applicant’s ongoing conduct issues and what actions could be taken.[17]
Ms Williams confirmed that on 23 January 2024, the Applicant was provided with a termination letter setting out she had been dismissed,[18] and on 29 January 2024, Ms Williams received an email from the Applicant requesting that Ms Williams complete a separation certificate, which Ms Williams did.[19]
Extension of the 21-day period
Consideration turns to whether to extend the 21-day period in which the Applicant can make her unfair dismissal application. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[20]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[21] Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[22]
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that 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.[23] Exceptional circumstances can 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.[24]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[25] the Full Bench provided clarification regarding the assessment of ‘exceptional circumstances’, stating:
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.[26]
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.
3.1 The reason for the delay
The Commission takes into account whether an applicant has provided a credible reason for the whole of the period in which the application was delayed.[27] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[28] It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[29]
In Pottenger v Department of Caffeine,[30] the Deputy President observed that 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,[31] or a reasonable explanation.[32] It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable, or for that matter, a credible explanation.[33]
The absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment.[34] 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.[35]
Although the Applicant asserted in her materials that her dismissal took effect on 22 January 2024 and she was notified of her dismissal on 23 January 2024, in my view, the evidence strongly points to the Applicant’s dismissal having taken effect on 23 January 2024 – whether communicated by Ms Williams over the course of a telephone discussion as purported by the Applicant, or whether by letter of 23 January 2024, signed by Ms Mackintosh. This is notwithstanding: (a) Ms Mackintosh’s acknowledgement in the letter of termination of 23 January 2024, that she had discussed with the Applicant on 22 January 2024 that the Applicant would not be offered ongoing employment with the Respondent; and (b) the separation certificate referred to the date that the Applicant’s employment ceased as 22 January 2024.
It therefore follows that for the Applicant to have complied with the statutory timeframe in s 394(2) of the Act, she needed to lodge her application for unfair dismissal by 13 February 2024 (given the date her dismissal took effect was 23 January 2024)
The Applicant gave evidence that she was completely unaware that she was going to be dismissed and was given no formal verbal or written warnings.
The Applicant said that regarding the submission of her claim (presumedly her unfair dismissal application), it involved a process of submitting both a ‘bullying claim’ and an unlawful dismissal claim, ‘conducted in two parts’. The Applicant submitted that the ‘bullying claim’ was the first step, and she lodged that application (Application for an order to stop bullying) on 12 February 2024 (this accords with the Commission’s records). The Applicant stated that this had been submitted within the required timeframe and noted that her workplace bullying claim was the most important and prominent issue. However, the Applicant submitted that ‘Fair Work’ informed her that this could only be submitted when an applicant was still an employee. The Commission records shows that on 15 February 2024, the Applicant withdrew her Application for an order to stop bullying.
The Form F72 Application for an order to stop bullying states the following:
9. Are you still employed or engaged at the workplace where the alleged bullying has been occurring?
The Commission can only make an order to stop bullying if there is a risk that you will continue to be bullied at work. If you no longer have a connection to the workplace where you say the behaviour took place, you may need to seek independent advice before continuing with your application.
The Applicant responded to question 9 on the Form F72 with the answer ‘No’. However, there was no evidence that prior to submitting the application that the Applicant had sought advice. Further, it was unclear from the Applicant’s evidence as to the day the Commission purportedly informed the Applicant that she could only submit the Form F72, if still an employee.
The Applicant submitted that her ‘claim’ then progressed to the ‘second part’ on 8 March 2024 for ‘unlawful dismissal’ outside of the 21-day time limit. In respect of this application and its lateness, the Applicant stated that after the shock of her dismissal had passed, she became heavily depressed, and the loss of her employment was highly stressful. Insofar as the Applicant has pressed that she was shocked by her dismissal, stress, shock, and confusion, in and of themselves, are not exceptional.[36] The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[37]
By way of documentation filed in support of the reason for the delay, the Applicant did not file evidence to support her contention that she suffered mental health challenges following her dismissal. While sympathetic to the Applicant’s assertions in respect to her mental health challenges, I am not satisfied that this reason constitutes a plausible reason for the delay in making her unfair dismissal application for the following reasons.
In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[38]
In this case, following the Applicant’s dismissal on 23 January 2024, the Applicant was able to request from Ms Williams a separation certificate. Thereafter, the Applicant was able to make a workplace bullying application with the Commission on 12 February 2024. It therefore appears that the Applicant was not so incapacitated that she could not pursue what she thought was a legal claim available to her during the statutory period.
After the statutory deadline, the Applicant relies upon her mental health challenges, the shock of her dismissal and diminished finances as reason for the delay in making her unfair dismissal application. However, at their highest they are, as noted, assertions, with no evidence to support that Applicant was so incapacitated she could not make an unfair dismissal application. It is evident that the Applicant simply prioritised the making of a workplace bullying application over that of making her unfair dismissal application, having been under a misapprehension that the jurisdiction under Part 6-4B of the Act is generally available to former employees.
Insofar as there is an argument that the Applicant was not cognisant of the statutory time limit for making an unfair dismissal application or had a misapprehension of the claims available, in Nulty v Blue Star Group Pty Ltd, the Full Bench expressed:
…the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[39]
I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the delay, or even part of the delay, in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
3.2 Whether the Applicant became aware of the dismissal after it took effect
At all material times from 23 January 2024 until the date the unfair dismissal application was made, the Applicant knew that she had been dismissed – she conceded as much. Therefore, this is a neutral consideration in this matter.
3.3 Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[40]
The Applicant made a workplace bullying application on 12 February 2024. However, I do not consider that this was an action or application to dispute the termination of the Applicant’s employment during the statutory timeframe for the following reasons.
The Applicant expressed she had adopted a two part approach in respect of her employment and its demise. The Applicant identified that the first step was to make her workplace bullying application, to address, what she said, was bullying that had occurred mainly over the last year including unkind communication and threats of loss of work. The Applicant further submitted to the effect that her bullying claim addressed ‘… the manner of [sic] which my employer conducted themselves and ultimately delivered their actions throughout my employment’. The filing of the workplace bullying application therefore was not an attempt by the Applicant to address her dismissal, but was, as the name suggests, an application to address the bullying the Applicant considered she had been subjected to in her former workplace. The Applicant made her ‘unlawful dismissal’ application to address her dismissal. It follows that having found that the Applicant took no action to dispute her dismissal, this factor does not weigh in favour of a finding of there being exceptional circumstances.
3.4 Prejudice to the employer
Whilst the Respondent adjures that it has suffered significant prejudice caused by the delay, I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The Respondent’s reference to prejudice suffered, is, in part, to time and money already spent. Whilst appreciative that resources have been expended to deal with the unfair dismissal application up until this point, I note that the Applicant’s workplace bullying application was on foot for a limited period and therefore prejudice to the Respondent in this respect would have been minimal, if any. It follows, I am not persuaded that prejudice arises from the delay albeit the absence of prejudice is not itself a factor that would warrant the grant of extension of time. Therefore, this factor weighs neutrally in my consideration.
3.5 Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time.
In Telstra-Network Technology Group v Kornicki,[41] 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:
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.[42]
The Applicant refers in her evidence to events over the course of 20 to 23 January 2024 which are discordant with the Respondent’s account as to what occurred. Further, the parties are divergent in their evidence regarding the reasonableness of instructions provided to the Applicant over the course of her employment and her compliance with the same.
At hearing, the Applicant sought to rely upon the written evidence of Ms Mackintosh albeit Ms Mackintosh was not called to give evidence. When informed that the statement of Ms Mackintosh would not be admissible, the Applicant requested that she be permitted to call Ms Mackintosh to ascertain if she was available to give evidence. The Applicant was informed that this would not be permitted in the middle of the Applicant’s evidential case. Whilst the Applicant may hold the view that Ms Mackintosh’s evidence may favour her argument, it is to be appreciated that Ms Mackintosh is a former employee of the Respondent, which may impact upon her credibility and should the matter proceed to a hearing on the merits, such evidence would be tested under cross examination.
It is to be appreciated that at this stage, in respect of the substantive application, the merits have not been fully tested. This is not out of the ordinary. 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 the Applicant to lodge her application.[43] The factual contentions and the merits of the application more generally would need to be scrutinised, and in this case and as alluded to, the importance of cross-examination cannot be over emphasised if an extension of time was granted and the matter proceeded.
In light of the materials filed by the parties, I cannot conclude that the Applicant’s application is absent merit. However, whilst the Applicant has an arguable case, the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
3.6 Fairness between the person and other persons in a similar position
In Morphett v Pearcedale Egg Farm,[44] the Deputy President considered this criterion and 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.[45]
My attention has not been drawn to other persons in a position similar to that of the Applicant. I am satisfied that the issue of fairness as between her and other persons in a similar position is not a relevant consideration in this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered the matters referred to in paragraphs [25]–[53] above, I am, on balance, not satisfied that there are exceptional circumstances that warrant extending the time for the Applicant to make her unfair dismissal application.
This is particularly the case when there is no satisfactory explanation for the delay in making the application and the totality of the evidence is insufficient to ground a finding that the Applicant’s circumstances were out of the ordinary course, unusual, special, or uncommon. As such, in the absence of a finding of exceptional circumstances, I do not consider that it would be fair and equitable to grant an extension.
The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order[46] will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Brooke Clarissa Carter, the Applicant
Sara Mansour for the Respondent
Hearing details:
2024
Perth (by telephone):
22 May.
[1] Fair Work Act 2009 (Cth), s 394(3).
[2] Witness Statement of Andrea Williams, [6] (Williams Statement).
[3] Ibid [7].
[4] Witness Statement of Brooke Clarissa Carter, 48 (Carter Statement).
[5] Ibid.
[6] Ibid 49.
[7] Ibid 50.
[8] Ibid 49.
[9] Ibid 50, 52.
[10] Ibid 48.
[11] Williams Statement (n 2) [8].
[12] Ibid.
[13] Ibid [15].
[14] Ibid [19].
[15] Ibid [20].
[16] Ibid.
[17] Ibid [21].
[18] Ibid [22].
[19] Ibid [23].
[20] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[21] (2011) 203 IR 1, 6 [15].
[22] Ibid.
[23] Ibid 5 [13].
[24] Ibid 6 [13].
[25] (2018) 273 IR 156 (Stogiannidis).
[26] Ibid 165–6 [38] (emphasis in original).
[27] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408–9.
[28] Henderson v Hoban Recruitment Pty Ltd[2016] FWC 5041, [10].
[29] Shaw v Australia & New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12] (Shaw); Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society [2016] FWCFB 349, [29]–[31].
[30] [2018] FWC 3403.
[31] Ibid [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[32] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64, [16].
[33] Stogiannidis (n 25) 166 [40].
[34] Ibid 166 [39].
[35] Ibid.
[36] Shaw (n 29) 366 [12].
[37] Ibid.
[38] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[39] (2011) 203 IR 1, [14].
[40] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[41] (1997) 140 IR 1.
[42] Ibid 11.
[43] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Guidice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].
[44] [2015] FWC 8885.
[45] Ibid [29].
[46] PR775411.
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