Catherine Ellen Sylte v The Reject Shop
[2023] FWC 527
•2 MARCH 2023
| [2023] FWC 527 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Catherine Ellen Sylte
v
The Reject Shop
(U2023/814)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 2 MARCH 2023 |
Application for an unfair dismissal remedy – application filed 1 day out of time – circumstances not exceptional – extension not granted – application dismissed.
On 1 February 2023, Ms Catherine Ellen Sylte made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is The Reject Shop (the Respondent).
While Ms Sylte’s Form F2 – Unfair Dismissal Application (Form F2) recorded that her dismissal took effect on 10 January 2023 and included the assertion that Ms Sylte was making her application within 21 calendar days of her dismissal taking effect, it was not filed with the Commission until 1 February 2023 and attached a letter of termination dated 11 January 2023. So as to determine the respective positions of the parties in relation to the effective date of dismissal, I held a Mention on 8 February 2023 at which Ms Sylte appeared and Ms Megan Hickman (People and Culture Business Partner) appeared for the Respondent.
Both Ms Sylte and Ms Hickman confirmed that Ms Sylte was notified of her dismissal at a meeting on 10 January 2023 and the dismissal took effect that day. However, Ms Sylte also said that she became confused by the letter dated 11 January 2023 and was not sure why there was a second confirmation of her termination on that day. As the Form F2 was filed with the Commission by way of email sent at 10:22pm on 1 February 2023, it appeared Ms Sylte’s unfair dismissal application was made 1 day out of time. If Ms Sylte’s application was not made within the prescribed 21 days after her dismissal took effect, she is required to seek an extension of time in which to file her unfair dismissal application.[1] Therefore, I issued directions for the filing and service of material and conducted a determinative conference on 1 March 2023 at which Ms Sylte and Ms Hickman appeared and gave evidence.
Legislation
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.[2] 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.[3]
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.
Reason for the delay – s.394(3)(a)
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 the circumstances must be considered.[4]
A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[5] In this case Ms Sylte attended a meeting on 10 January 2023 with her support person Mr Oliver Clements-Canzano. Ms Loucinda McCorry (the Respondent’s now former State Manager) and Ms Hickman were present for the Respondent.
It is not in dispute that Ms Sylte was advised her employment was terminated during this meeting. Ms Hickman said Ms Sylte was advised during the 10 January 2023 meeting that the termination was with immediate effect. Ms Sylte said she was initially under the impression her termination was effective immediately but became confused about the effective date of the termination when she received the letter of termination the next day.
There was a record of the discussion between the parties at the meeting on 10 January 2023 made by the Respondent.[6] In recording the outcome of the discussion, the discussion record outlines “As a result, we will be terminating your employment effective immediately” and it denotes there was a termination of employment.[7] Further, Ms Sylte said she signed the discussion record at the meeting on 10 January 2023 and was given a copy, although she also stated the timing between receiving and signing the document was rushed. Ms Hickman said Ms Sylte signed the discussion record with no objection and was not pressured into signing it.
On 11 January 2023, Ms Sylte received an email attaching the Termination letter dated January 2023 which relevantly states as follows:
“Confirmation of Termination
Dear Catherine,
I write to confirm the outcome of the discussion on 10 January 2023. In attendance at this meeting was you, Megan Hickman People and Culture Business Partner and me (Loucinda McCorry). You chose to bring fellow team member Oliver Clements-Canzano as your support person.
In this meeting it was confirmed that we have completed a discussion with you about your behaviour as a Store Manager at the Knox Store. Allegations were discussed in detail with you, and you were given the opportunity to put forward any mitigating factors that you wanted to be considered.
…
Disciplinary Outcome
Following careful consideration and review of all relevant information, it was confirmed that the business considers the above allegations substantiated, of which are viewed as serious misconduct. As a result, your employment has terminated, effective immediately.
…
If you have any concerns or do not understand any of the content of the letter, please contact me on [phone number supplied] to discuss further.”
(my emphasis)
As outlined above, Ms Sylte says this letter confused her in relation to the effective date of her termination. She also said that if she had thought there was no chance of her application being accepted on 1 February 2023, she would not have made it.
Having regard to accounts of the meeting given by Ms Sylte and Ms Hickman, the content of the discussion record received and signed by Ms Sylte and the contents of the termination letter dated 11 January 2023, I am satisfied Ms Sylte was aware her employment had been terminated with immediate effect on 10 January 2023. The termination letter used the phrases “I write to confirm the outcome of the discussion on 10 January 2023” and “your employment has terminated”. It did not state “I write to advise” or “your employment is terminated”. I consider that if Ms Sylte was confused by the contents of the letter dated 11 January 2023, it was open to her to contact the Respondent. The termination letter invited this course of action if required and a contact phone number was provided. Ms Sylte did not take up this opportunity. I am satisfied the termination took effect on 10 January 2022.
The delay required to be considered in this case is the period beyond the expiration of the prescribed 21-day period after 10 January 2023.[8] As such, the delay does not include the period from 10 January 2023 until the end of the 21-day period, which in this case ended at midnight on 31 January 2023. However, the circumstances from 10 January 2023 must be considered when assessing whether there is a credible reason for the 1-day delay in this case, or any part of that delay, beyond the 21-day period which ended at midnight on 31 January 2023.[9] Having regard to the circumstances of this case, I am not persuaded the claimed confusion on the part of Ms Sylte provides a credible reason for the 1-day delay.
Ms Sylte’s Form F2 is dated 31 January 2023. In completing her form on 31 January 2023, Ms Sylte indicated her dismissal took effect on 10 January 2023 and that she was making her application within 21 days of her dismissal taking effect. Her explanation for not filing the Form F2 until the next day (1 February 2023) is that having completed the Form F2 on 31 January 2023, she experienced issues with her computer in terms of her attempts to scan the document for filing with the Commission. Ms Sylte said the issue resolved on 1 February 2023.
Having regard to the evidence before me, I do not consider there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 1-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the 1-day delay. The issues Ms Sylte described with her computer are not “out of the ordinary course, unusual, special or uncommon”. Unfair dismissal applications can be and are routinely made without legal or other professional advice, by reference to the Commission’s website. The website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance. For example, on 31 January 2023 it was still open to Ms Sylte to lodge her application by telephone. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied Ms Sylte became aware of the dismissal on 10 January 2022 and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Other than lodging her unfair dismissal application on 1 February 2023, there was no action taken by Ms Sylte to dispute her dismissal after it took effect. This is a neutral consideration.
Prejudice to the employer – s.394(3)(d)
Neither party contends there is prejudice to the Respondent, including prejudice caused by the delay. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. 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 very little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.394(3)(e)
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, 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. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
The Respondent maintains that a safety breach representing serious misconduct provided a valid reason for Ms Style’s dismissal. It contends Ms Style’s conduct in facilitating a person known to her sleeping in the back area of its store premises, accessing the store’s tearoom and coming into contact with other employees and using the store’s power source amounted to a breach of its code of conduct and policies. The Respondent submits the termination was procedurally sound as Ms Sylte was informed of the allegations at the meeting on 10 January 2023, during which:
Ms Sylte was provided with an opportunity to bring a support person and respond to the allegations;
Ms Sylte was informed (based on her responses) that the Respondent was considering the termination of her employment; and
Two half-hour breaks were taken for the consideration of Ms Sylte’s responses.
The Respondent asserts that in light of the concessions made by Ms Sylte during the meeting and the findings of the investigation that was conducted, it determined that Ms Sylte’s employment should be terminated effective immediately.
Ms Sylte maintains that her dismissal was unfair because the Respondent did not issue her with any warnings in relation to the issues that ultimately led to her dismissal, nor did it make her aware that her employment would be at risk of being terminated. Ms Sylte submits that during the course of her 13-year employment with the Respondent, she had not previously been subject to any disciplinary processes or action. Ms Sylte disputes the allegations and contends that the dismissal was a disproportionate response to the gravity of the alleged conduct. She accuses the Respondent of inconsistency in its approach to disciplinary matters.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[10] Having reviewed the material and heard from the parties, I consider the merits of Ms Style’s application turn on some contested points of fact that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed.
Based on the limited material before me, I consider that Ms Sylte’s application is not without its weaknesses but am not able to make any final assessment of the merits. As such, I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
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. While Ms Sylte raised some matters going to the merits of her application when addressing this consideration, such as the outcome she received compared to the outcomes applied to other employees in disciplinary matters, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This is a neutral consideration.
Conclusion
The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[11]
Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, 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, Ms Sylte’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms C Sylte on her own behalf.
Ms M Hickman for The Reject Shop.
Hearing details:
2023.
Melbourne (via Microsoft Teams).
March 1.
[1] Fair Work Act 2009 (Cth), s.394(2).
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Ayub v NSW Trains [2016] FWCFB 5500.
[6] Exhibit R1, Digital Court Book at 91.
[7] Exhibit R1, Digital Court Book at 95.
[8] Fair Work Act 2009 (Cth), s.394(2).
[9] 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].
[10] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[11] [2018] FWCFB 901.
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