Cara McConnell v Haulotte Australia Pty. Ltd

[2024] FWC 756

[2024] FWC 756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Cara McConnell
v

Haulotte Australia Pty. Ltd.

(U2024/2154)

COMMISSIONER PERICA MELBOURNE, 22 MARCH 2024

Application for an unfair dismissal remedy

1. Cara McConnell (the Applicant) made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging she had been unfairly dismissed from her employment with Haulotte Australia Pty. Ltd. (the Respondent).

Procedural history

1. The application may have been made out of time. To deal with this threshold issue, I made directions on 1 March 2024 and listed the matter for a determinative conference on 21 March 2024.

1. By paragraph [5] of the directions, the Applicant was required to file and serve her submissions and witness statements on or before 5:00PM on 12 March 2024. Having received no documents, my Chambers sent an e-mail reminding the Applicant of those directions.

1. The Applicant replied on the same day indicating she had provided material with her application. My Chambers outlined the matters to be taken into account in s 394(3) and noted that if the Applicant did not wish to file additional material, the extension of time application would be decided without it. Ultimately, the Applicant did not file further material.

1. The determinative conference proceeded on 21 March 2024. The Applicant, the General Manager of the Respondent Mr. Keith Clarke and the Human Resource Manager of the Respondent Ms. Amber Raisbeck all appeared, and each gave sworn evidence and made submissions.

1. For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.

When must an application for an order granting a remedy be made?

1. Section 394(2) provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

1. A Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1] It is not contested the dismissal took effect on 5 February 2024. It follows the final day of the 21-day period was 26 February 2024 and ended at midnight on that day.

1. At 9:47 PM on 27 February 2024, the application was filed one day late. As it was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

1. Under section 394(3), 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 the Applicant first became aware of the dismissal after it had taken effect; and

(c)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 February 2024. The delay is the period commencing immediately after that time until 9:47 PM on 27 February 2024. Circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

1. 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.[4]

1. An applicant 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 the applicant has not provided any reason for any part of the delay.[5]

Applicant’s submissions on the reasons.

1. The Applicant stated she had made an enquiry at the Fair Work Commission on or around 26 February 2024. As a result of that enquiry, The Commission sent her an e-mail which contained an “enquiry link”, which prompted the Commission to ring back to answer an enquiry, and a link which leads to an unfair dismissal application form. The evidence of the Applicant was she “pressed the wrong link”, that is: the enquiry link rather than the link to the unfair dismissal form.

1. She gave evidence the Commission rang her back as a result of her pressing the enquiry link. She then realised that she had not commenced an unfair dismissal proceeding.

1. I asked the Applicant why she waited until the 21^st day to make an enquiry in relation to her claim. Her evidence was that she “contemplated whether it was worth it. I still love Haulotte and I did not want to go down that track.”

1. Relevantly, all three witnesses confirmed that at the end of the termination meeting which occurred on the date of her dismissal she said words to the effect “I will be lodging a fair work claim”.

Consideration

1. The test in Nulty v Blue Star Group PtyLtd[6](Nulty) is that exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.

2. I agree with the view expressed by Deputy President Colman in McBride that “lodging and unfair dismissal application [is] a process which involves the completion of a very simple form in any one of a variety of simple ways.”[7] The mistake of the Applicant can be regarded as routine and everyday rather than exceptional.

1. Further, the mistake of the Applicant in “clicking the wrong link” occurred in circumstances that detract rather than add to an argument that the mistake amounts to “exceptional circumstances”: The Applicant had, on the day of her dismissal, indicated she would commence an unfair dismissal proceeding. It took her 21 further days to explore whether or not she would make the application, and on the last day she made the mistake of “clicking the enquiry link”. If she had decided to engage with the Commission earlier, that error would not have resulted in the late filing of the application.

Did the Applicant first become aware of the dismissal after it had taken effect?

1. It was not in dispute, and I therefore find, the Applicant was notified of the dismissal on the same day it took effect. She therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

1. The Applicant and the Respondent witnesses agreed she took no action to dispute the dismissal aside from lodging her application.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

What are the merits of the application?

1. As the Applicant did not file submissions or witness statements in accordance with the directions, I must rely on the oral evidence given at the determinative conference by the Applicant, Ms. Raisbeck and Mr. Clarke to make a merit assessment.

1. The termination letter dated 5 February alleged the Applicant was guilty of “serious misconduct” because she exhibited “threatening and abusive behaviour” which resulted in “imminent risk to health and safety”.

1. The reason for the termination given by the Respondent’s witnesses was an event that occurred near the reception area at the workplace of the Respondent. Ms. Raisbeck gave evidence the Applicant had yelled and swore at the top of her voice such that employees 30 metres away heard it. According to Ms. Raisbeck and Mr. Clarke, this had the effect of “intimidating” her coworkers and “making them feel unsafe”. The Applicant conceded she had raised her voice, although not to the volume alleged by the Respondent’s witnesses. She also gave evidence that she had said “I am sick of this place” and “I get told to do one thing and then get told to do something else”. All witnesses agreed the outburst went for two minutes. There was a contest at to what the Applicant said and the volume at which she expressed it.

1. The circumstances that led up to this outburst, described to me in evidence, were:

• The Applicant gave evidence she had worked from home previously to care for her sick child. Mr. Clarke gave contrary evidence that “no one works from home”, particularly at “end of month” which were the circumstances here.

• The Applicant gave evidence that she was refused a request to work from home and was directed by a manager to bring her child, who was sick with chickenpox, into the office.[8] This was not contested by the witnesses for the Respondent.

• Ms. Raisbeck gave evidence that in her role as Human Resource Manager, she came across the Applicant and her partner who also worked for the Respondent. After an exchange which involved raised voices, she had directed the partner of the Applicant, rather than the Applicant herself, to take the child home. As the Applicant’s partner was a casual employee, this would mean he would not be paid for the rest of the day.

• Ms. Raisbeck gave evidence that, after the exchange with the Applicant and her partner, she followed the Applicant’s partner into the workshop. The Applicant’s partner yelled, abused, and swore at her. As a result, he was sacked on the spot by Ms. Raisbeck.

• It was the evidence of Mr. Clarke she had raised her voice to others in the office prior to the incident that led to her termination. The Applicant conceded that this was true.

1. It is not ideal trying to discern the merits of this case from the limited oral evidence in this hearing. It is evident the merits of the application turn on contested points of fact. In order to make a merit assessment in this case, a full hearing is required where the evidence may be comprehensively heard and weighed.

1. On the limited evidence I have heard, it is not possible to make a firm or detailed assessment of the merits. The Applicant may have a case based on exculpatory circumstances surrounding her conduct, and the Respondent may have a defence based on the prior related conduct of the Applicant and the nature of the outburst at reception (the facts of which are contested).

1. In the circumstances it is not possible to make an assessment of the merits of this application. The fact the Commission received no written submissions of fact or witness statements before the hearing affected the capacity of the Commission to make that assessment.

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

1. Neither party brought any relevant matter to my attention concerning this consideration. I therefore find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. In my assessment for the purposes of s 394(3)(a), the matters raised by the Applicant as reasons for delay in lodging her unfair dismissal application are routine rather than exceptional. The consideration counts against an extension of time.

2. The considerations in s 394(3)(b), (c), (d) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• s 394(3)(b): The Applicant was notified of her dismissal on the same day her dismissal took effect. She therefore had the benefit of the full 21-day period to lodge her unfair dismissal application.

• s 394(3)(c): The Applicant did not take action to dispute the dismissal apart from lodging her application.

• s 394(3)(d): There is no evidence of prejudice against the Respondent.

• s 394(3)(e): On the limited evidence available, I cannot make a merit assessment for this application.

• s 394(3)(f): No submissions were made on fairness arising between the Applicant and other persons in a similar position.

1. I therefore conclude, the reason for the delay did not amount to exceptional circumstances, and all other considerations under s 394(3)(b) to (f) are neutral. It follows I am not satisfied that there are exceptional circumstances. There is no basis for me to extend time, and I decline to do so. The Applicant’s unfair dismissal application is dismissed.

COMMISSIONER

Appearances:

Ms. McConnell, the Applicant, for herself.
Mr. Clarke and Ms. Raisbeck for the Respondent.

Hearing details:

21 March 2024
Microsoft Teams

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] [6][2011] FWAFB 975

[7] McBride v. J.A Kreiger Forestry Services [2021] FWC 6284 at paragraph [5]

[8] A management direction that is bewildering to this Commission.

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