Christina Scott v Pandamich Pty Ltd
[2022] FWC 2927
•7 NOVEMBER 2022
| [2022] FWC 2927 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christina Scott
v
Pandamich Pty Ltd
(U2022/9792)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 7 NOVEMBER 2022 |
Unfair dismissal application – extension of time – representative error – exceptional circumstances
This decision concerns an application made by Ms Christina Scott for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). From April 2019 until September 2022 Ms Scott was employed by Pandamich Pty Ltd (respondent) as a customer service officer. On 9 September 2022, Ms Scott sent her manager an electronic message stating that she resigned. On 13 September 2022, she sent the respondent a letter in which she confirmed her resignation and stated that it would take effect that day. Ms Scott contends that she was forced to resign because she had been offered a new position that was unacceptable to her, and that her constructive dismissal was unfair. The respondent contends that it had proposed minor changes to Ms Scott’s working arrangements and that she then chose to resign. It submits that there was no dismissal at all.
Section 394(2) of the Act provides that an unfair dismissal application 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). If there was a dismissal in this case, it occurred on 13 September 2022. The period of 21 days ended on 4 October 2022. Ms Scott’s application was lodged on 5 October 2022, one day out of time. In order for Ms Scott’s application to proceed, she requires the Commission to grant a further period of time within which to bring her application.
The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in 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 the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to Ms Scott’s application.
The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Ms Scott submitted that the reason for the delay in lodging her application was representative error on the part of Unfair Dismissal Experts Pty Ltd (UDE). UDE accepts that this was the case. Mr Stephen Gaffney of UDE gave evidence that on 27 September 2022, Ms Scott instructed him to lodge her unfair dismissal claim, and that he did not submit the application to the Commission until 5 October 2022 because of a technical fault in UDE’s systems. Mr Gaffney said that Ms Scott had provided UDE with relevant details by uploading them onto UDE’s portal, but that UDE could not access these details until 5 October 2022. Mr Gaffney said that he had wrongly assumed that Ms Scott had lost interest in her application and had failed to provide the necessary details, and that it was only after 4 October 2022 that his IT department told him that there had been a technical fault. Mr Gaffney said that he should have done better but that the error was UDE’s, and not Ms Scott’s fault.
The respondent contended that it is the responsibility of a representative to ensure that an application is properly prepared and lodged and that if an applicant relies on a person for representation they should be bound by the actions or inactions of that person. The respondent also contended that UDE had not produced any proof that its systems had been affected by a technical fault which caused the delay in the lodgement of Ms Scott’s application.
In my opinion, Ms Scott has an acceptable reason for the delay in the lodgement of her unfair dismissal claim. Ms Scott instructed a paid agent, UDE, to represent her and to lodge her application. She reasonably relied on UDE to carry out her instructions. I accept Mr Gaffney’s sworn evidence that he was advised by his IT department that there had been a technical fault. Definitive proof, in the form of technical evidence, is not required. Mr Gaffney should not have assumed that Ms Scott had not provided her details. He should have called her. This was a further error on the part of UDE. Strictly speaking, the nature of UDE’s error is not relevant to the question of whether Ms Scott had a reasonable explanation for her delay. Rather, it is necessary to establish that it was indeed UDE’s error or errors that caused the delay and not the conduct of Ms Scott. I find that this was the case. The delay was caused by representative error. There was no error or failing on the part of Ms Scott. The reason for the delay weighs in favour of an extension of time.
This is not a case where the applicant became aware of the alleged dismissal after it had taken effect (s 394(3)(b)). Other than filing her unfair dismissal application, there is no indication that Ms Scott took any action to dispute her alleged dismissal (s 394(3)(c)). As to the consideration in s 394(3)(f), I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Scott and other persons in a similar position. These matters are neutral considerations.
In respect of the consideration in s 394(3)(d), the respondent contended that it had suffered prejudice, because the late filing of the application had required it to prepare a response to the application, including submissions and evidence, and that this had diverted the attention of management from the running of the business at a particularly busy time. I accept that, had the application been made within the 21-day period, it would not have been necessary for the Commission to determine the applicant’s request for an extension of time, and the respondent would have been spared the effort required to respond to that request. However, the fact that a party has been caused some inconvenience in responding to an application would not be a reason for the Commission to refuse to grant the application. Further, how much time and effort a respondent chooses to afford a response to a request for an extension of time is a matter for that party. To the extent that there is prejudice to the employer in this case, I afford it little weight.
In considering whether there are exceptional circumstances, the Commission must take into account the merits of the application (s 394(3)(e)). Ms Scott submitted that her resignation was forced, that she was therefore dismissed, and that her dismissal was unfair because she was given a new role that was ‘untenable’ for her, because it involved an increased workload and finishing times that were unsuitable. She said that the respondent’s manager, Mr Chris Hudson, gave her a pre-prepared resignation letter and told her to sign it, which she did. Ms Scott said that she wanted to remain in her previous role but was pressured to accept a different one without any consultation, and that she ought to have been made redundant and paid a severance benefit. Ms Scott submitted that there was no valid reason for her constructive dismissal, and that it was harsh, unjust or unreasonable.
Mr Hudson gave evidence that the respondent did not offer Ms Scott a different role but instead told her that it proposed to make certain minor changes to her working arrangements: she would be required to work from the office rather than from home; and she would now finish work at 5.30pm each day, rather than finishing at 4.10pm on three days of the week. Mr Hudson said that on 5 September 2022, he told Ms Scott that he would like these arrangements to start the following week but did not say that they must commence at that time. Mr Hudson rejected Ms Scott’s suggestion that he had forced or encouraged her to resign by giving her a pre-prepared resignation letter. He said that, after receiving Ms Scott’s resignation on 9 September 2022 on the company’s internal messaging system, he simply asked her to formalise the resignation in a letter and provided her with a sample resignation letter that he had found on the internet, which included a date on which the resignation would take effect. Ms Scott had then sent a signed resignation letter on 13 September 2022. The respondent submitted that Ms Scott’s resignation was the last thing that it had expected from its proposed minor changes to her working arrangements. It submitted that her departure had created a resourcing gap at a busy time, and that the company had then been required to seek a replacement. Her position was not redundant. The respondent contended that Ms Scott was not forced to resign and was therefore not dismissed, and that her unfair dismissal application had no merit.
An application to extend time is in the nature of an interlocutory application (see s 396). The merits of Ms Scott’s application will depend on factual findings in respect of contested points of evidence. It does not appear to me that Ms Scott has a strong case. Her message of 9 September 2022 did not say that she believed that she was being forced to accept another position or to resign. The proposed changes to working arrangements do not appear to have been so significant that the respondent should reasonably have expected that Ms Scott would resign rather than accept them. At this point, Ms Scott’s case does not appear to me to reveal circumstances of compulsion that would be indicative of a forced resignation. Nevertheless, Ms Scott may be able to develop her case at a final hearing and support it with further evidence. At this early stage, I consider the merits of the case to be a neutral consideration.
Conclusion
For the reasons mentioned earlier, there was a reasonable explanation for Ms Scott’s delay. She relied on UDE to file her application. It failed to do so. This was representative error, and an exceptional circumstance. The discretion to extend time under s 394(3) is enlivened, and I consider that it is appropriate to exercise it. Although the merits of the application do not appear to be strong at this stage, Ms Scott should not be deprived of the opportunity to run her case because of UDE’s error. Ms Scott’s application will shortly be programmed for hearing.
DEPUTY PRESIDENT
Appearances:
S. Gaffney for the applicant
P. Wallace for the respondent
Hearing details:
2022
Melbourne
3 November 2022
Printed by authority of the Commonwealth Government Printer
<PR747589>
0
0
0