Cheyne Kaye v Cavalier Homes Goulburn Valley

[2020] FWC 6123

[2020] FWC 6123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheyne Kaye
v
Cavalier Homes Goulburn Valley
(U2020/13914)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Ms Cheyne Kaye made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act) on 21 October 2020. Section 394(2) of the Act prescribes that the application must be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3).

[2] The respondent objects to Ms Kaye’s unfair dismissal application on the basis that:

(a) Ms Kaye resigned from her employment and was therefore not dismissed in accordance with s 386 of the Act; and

(b) Ms Kaye’s application for an unfair dismissal remedy was not filed within 21 days after the alleged dismissal took effect.

[3] This decision deals with the issue of whether the Commission should allow Ms Kaye a further period of time to lodge her unfair dismissal application pursuant to s 394(3) of the Act.

[4] For the reasons that follow:

(a) I find that Ms Kaye’s application was filed outside the 21-day timeframe prescribed by s 394(2)(a) of the Act; and

(b) I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application.

[5] Ms Kaye’s application is dismissed.

Background

[6] Ms Kaye commenced employment with the respondent on 8 June 2018 as a new home sales consultant. 1

[7] In or about late September 2020, Ms Kaye facilitated a purchase of a house and land package for a client of the respondent. Ms Kaye says that she was advised by the client that they had previously contacted her colleague Ms Courtney Maddison. Ms Kaye sent a text message to Ms Maddison advising that she would be processing the purchase in light of her long-standing rapport with the client. 2 Ms Kaye submits that when she arrived at work on 23 September 2020, she was “aggressively confronted” by Mr Peter Muggleton, Sales Manager for her conduct in entering into a contract with a client of another employee of the respondent.3 Ms Kaye submits that Ms Maddison also verballed “attacked” her.4 Ms Kaye says that she felt “threatened, anxious and intimidated” and left the room.5

[8] Subsequently Ms Kaye sent a text message to the Director, Mr Scott McHugh “to tell him how upset I was and what happened” and “to tell him that I was grateful for the opportunity they (the respondent) have given me.” 6

[9] The respondent contends that Ms Kaye had in fact verbally resigned to Mr Muggleton and Ms Courtney on 23 September 2020. 7 It is submitted by the respondent that upon leaving work on 23 September 2020, Ms Kaye advised staff that she had quit and sent a text message to another staff member also advising them of this fact. Ms Kaye denies that she resigned from her employment and says that “the text message was never an intention to resign but an emotional outreach to Mr McHugh in the hope that there would be some comfort coming from him.”8

[10] The next day on 24 September 2020 Ms Kaye received an email from the office manager, Ms Kathy O’Brien. The email advised Ms Kaye that the respondent had accepted her resignation and Ms Kaye was asked to return her keys and laptop to the respondent, which she did immediately. 9 Ms Kaye says that she also asked Ms O’Brien to provide her a copy of the signed resignation and employment contract, but was advised that the respondent did not need to comply with this request.10

[11] Ms Kaye submits that there was a misunderstanding as to whether she resigned. However, it is not in contest that Ms Kaye’s employment ended on 24 September 2020. 11

Statutory framework

[12] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.¹²In 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. 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.

[13] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(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.

[14] I consider each of these matters below.

Consideration

Reason for the delay: s 394(3)(a)

[15] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 13 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.14

[16] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being 16 to 21 October 2020.¹⁵ However, the circumstances from the time of the dismissal must be 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.¹⁶

[17] Ms Kaye gave evidence that she telephoned the Commission on 25 or 26 September 2020 seeking advice. 17 Ms Kaye said that during the telephone call she was provided a reference number.18 Having been issued the reference number, Ms Kaye held the view that she had lodged an application for unfair dismissal remedy with the Commission.19

[18] When asked what the person said during the telephone call about lodging an unfair dismissal application, Ms Kaye’s evidence was that “They didn’t say anything about it… They referred me to the legal institute. I was not given the appropriate advice.”

[19] Ms Kaye says that she subsequently telephoned the Legal Institute of Victoria (LIV) and was advised that she would be contacted by two solicitors, however it is said that this did not occur. 20

[20] On 21 October 2020, Ms Kaye telephoned the Commission. During the telephone call, Ms Kaye was advised that there was no record of her having lodged an unfair dismissal application. 21 That same day, Ms Kaye spoke to a representative of Armstrong Legal. Ms Kaye was advised to file an unfair dismissal application, which she did on 21 October 2020.22

[21] Ms Kaye contends that it was not until 21 October 2020 that she learned that she did not have an unfair dismissal application on foot in the Commission. Ms Kaye submits that she was not aware of the 21-day timeframe within which she was required to lodge an application. 23

[22] Ms Kaye’s evidence in support of her position that she lodged an unfair dismissal application on 25 or 26 September 2020 is confined to (1) the contention that she telephoned the Commission, and (2) the provision of a reference number (2074266). 24

[23] Ms Kaye was unable to provide any telephone records evidencing that she had in fact telephoned the Commission on 25 or 26 September 2020.

[24] Ms Kaye’s evidence is that the person with whom she spoke about lodging an unfair dismissal application “didn’t say anything about it.” Nor was Ms Kaye advised that the provision of a reference number represented such an application being made. Ms Kaye’s evidence is that “other than course of recording the conversation,” no explanation for the reference number was provided to her. On the evidence, Ms Kaye was not advised that the result of her telephone call was that she had made an unfair dismissal application in the Commission. Rather, Ms Kaye was directed to the LIV.

[25] Further, Ms Kaye did not receive any correspondence from the Commission in acknowledgement of an unfair dismissal application. Despite this, Ms Kaye took no steps for three and a half weeks, until 21 October 2020, to make any enquiries with the Commission.

[26] I am not persuaded by Ms Kaye’s contention that an unfair dismissal application was lodged with the Commission on 25 or 26 September 2020. The evidence before the Commission discloses that there was no communication to Ms Kaye which lends support to the inference she drew. The reference number of itself was an insufficient basis upon which Ms Kaye apprehended that an application had been made. Further, Ms Kaye gave evidence that it is possible that her telephone call was made to an organisation other than the Commission. She also said that, “I was quite confused with the process having not undergone this kind of procedure before.” I also note that the reference number provided to Ms Kaye bears no similarity to the case references provided to parties in Commission proceedings. Further, there is no Commission record of an unfair dismissal application having been lodged by Ms Kaye prior to 21 October 2020. Ms Kaye sought to rely upon the decision in Jeradd Clark v ADP Recruitment Services 25 in support of her contention. However, that matter turned on its own facts including that the applicant was not aware of his dismissal and this explained the majority of the delay.26 This can be distinguished from the circumstances of Ms Kaye.

[27] Ms Kaye contends that she was unaware of the 21-day timeframe within which her application was required to be lodged with the Commission and she was unfamiliar with the process. However, mere ignorance of the time limit is not an exceptional circumstance and does not provide an acceptable or credible reason for the delay. 27 Similarly, and in circumstances where there are assistive resources available on the Commission’s website, Ms Kaye’s purported unfamiliarity with the process for lodgement does not give rise to a credible or acceptable reason for the delay.

[28] I am not persuaded that the reasons for the delay relied upon by Ms Kaye constitute an acceptable explanation for any part of the delay, being the period 16 to 21 October 2020. This weighs against the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

[29] As earlier noted, it is not in dispute that Ms Kaye’s employment with the respondent ceased on 24 September 2020. However, the parties are in dispute about whether Ms Kaye resigned from her employment.

[30] Without determining whether there was a dismissal, I find that Ms Kaye had a reasonable opportunity to become aware of the alleged dismissal on 24 September 2020. On this day, Ms Kaye says that she received an email from the respondent in which she was advised that her resignation had been accepted. The email directed Ms Kaye to return the respondent’s keys and laptop, which Ms Kaye says she did immediately. 28

[31] Accordingly, Ms Kaye had 21 days to lodge her application for an unfair dismissal remedy from 24 September 2020. This weighs against the grant of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

[32] Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time. 29

[33] The respondent says that Ms Kaye sent an email to Ms O’Brien advising that she would be obtaining legal advice to ensure that she receives what she is entitled to. This email is not in evidence and Ms Kaye did not address its contents. However, consistent with the respondent’s explanation of the email, Ms Kaye’s evidence which I accept, is that she sought advice concerning the making of an unfair dismissal application.

[34] In these circumstances, I accept that Ms Kaye’s correspondence constitutes an action by Ms Kaye to dispute the employment cessation. This weighs in favour of the grant of an extension of time.

Prejudice to the employer: s 394(3)(d)

[35] While a long delay gives rise to a general presumption of prejudice, 30 the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.31 

[36] It is not contended that any prejudice to the respondent would arise if an extension of time was granted. Accordingly, I do not find that any prejudice would be suffered by the respondent if an extension of time were granted.

[37] I consider this to be a neutral consideration.

Merits of the application: s 394(3)(e)

[38] Ms Kaye contends that following the 23 September 2020 confrontation with Mr Muggleton and Ms Maddison she said she was “going to leave and think about how I am going to respond to the attack.” 32 However, the respondent contends that Ms Kaye verbally resigned on 23 September 2020, and Ms Kaye communicated the fact of her resignation to the respondent’s employees and clients.33 In light of the respondent’s position that there has not been a dismissal, it considers that Ms Kaye’s application for an unfair dismissal remedy must fail.

[39] The merits case requires the determination of contested facts, which have not been the subject of evidence before me. This proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.³⁴ It is not possible to make any firm or detailed assessment of the merits of the application. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[40] Neither party made submissions in respect of this factor. Accordingly, there is no material before the Commission that is to be weighed in the assessment of whether there are exceptional circumstances. I therefore consider this to be a neutral consideration.

Are there exceptional circumstances?

[41] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time either when the various circumstances are considered individually or together.

Disposition

[42] As I am not satisfied that there are exceptional circumstances, there is no basis for an extension of time to be allowed. Ms Kaye’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr P Kruger, on behalf of the Applicant
Ms K Ajro, on behalf of the Respondent

Hearing details:

2020
Melbourne (by telephone):
November 11.

Printed by authority of the Commonwealth Government Printer

<PR724561>

 1   Witness statement of Ms Cheyne Kaye dated 6 November 2020 (Kaye statement) at [2]

 2   Ibid at [18] and [19]

 3   Ibid at [26] and [27]

 4   Ibid at [29] and [30]

 5   Ibid at [31]

 6   Ibid at [35]

 7   Form F3 Employer Response to Unfair Dismissal Application dated 27 October 2020 (Form F3) at 3.1

 8   Kaye statement at [36], [37] and [45]

 9   Ibid at [41]

 10   Ibid at [43]

 11   Form F2 Unfair dismissal application dated 21 October 2020 (Form F2) at 1.4

12 [2011] 203 IR 1

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

 14   Ibid

15 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]

16 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]

 17   Kaye statement at [7]

 18   Ibid at [8]

 19   Ibid at [9]

 20   Ibid at [10] and [11]

 21   Ibid at [11] and [12]

 22   Ibid at [13] and [14]

 23   Ibid at [15]

 24   Form F2 at 2.1

 25   [2019] FWC 4864

 26   Ibid at [29] and [31]

 27   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472 at [23]

 28   Kaye statement at [41]

 29   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, per Marshall J

 30   Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556

 31   C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]

 32   Kaye statement at [32]

 33   Form F3 2.2 at [2] and 3.1

34 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]