Christina Taylor v Vision42 Pty Ltd
[2024] FWC 1415
•30 MAY 2024
| [2024] FWC 1415 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Christina Taylor
v
Vision42 Pty Ltd
(C2024/2618)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 30 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection - application made outside of 21-day time limit – no exceptional circumstances – application dismissed.
Introduction
On the 22 April 2024, Ms Christina Taylor (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 8 March 2024 by Vision42 Pty Ltd (the Respondent) contravened her workplace rights.
Following allocation of the matter to my Chambers on 10 May 2024, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time (the jurisdictional issue).
On Friday 10 May 2024, shortly after receiving the Directions the Applicant contacted my Chambers seeking advice as to whether there were template witness statements she could use. On Monday, 13 May 2024 my Associate sent an email to the Applicant advising that the Commission does not have any template documents for s. 365 applications and there is no specific format that is required. The Applicant was advised that generally, witness statements include the name and position of the person giving the statement, numbered paragraphs and are signed and dated. My Associate also provided the Applicant with a link to the Commission’s webpage on preparing for conferences and hearings.
On 14 May 2024, the Applicant called my Chambers and shortly thereafter my Associate returned her call. During the phone call the Applicant sought confirmation that the hearing was in relation to the jurisdictional issue only, which was confirmed by my Associate. The Applicant again sought advice as to what she should include in her witness statement, at which point my Associate advised the Applicant that she could not provide legal advice and it was a matter for the Applicant as to what matters she deems are relevant to include. The Applicant also sought advice as to when a conference would be listed should the extension of time be granted.
At 11:44am on 20 May 2024, my Associate emailed the Applicant advising that the Applicant was due to file materials in relation to the jurisdictional issue by close of business on Friday, 17 May 2024 and that materials had not been received by Chambers nor an extension of time sought. The Applicant was asked to file her materials as soon as possible and alternatively was advised that if she did not wish to proceed with her application she could withdraw.
In the absence of any materials being filed by the Applicant, my Associate sent a further email to the parties at 11:01am on 22 May 2024 advising that if the Applicant failed to file materials by close of business Friday, 24 April 2024 the hearing listed for 5 June 2024 would be vacated and the matter would be determined on the papers in the absence of any evidence being provided by the Applicant. The direction for the Respondent to file its materials by close of business 24 April 2024 was vacated pending receipt of materials from the Applicant. The parties were also advised that should materials be received from the Applicant, revised directions would be issued.
As no materials were filed and nor was a response received from the Applicant following the correspondence sent to her by my Chambers on 20 & 22 May 2024, my Associate emailed the parties advising that as the Applicant had failed to file materials in relation to her application as required by the Directions, the hearing scheduled for 5 June 2024 was cancelled and the matter would be determined on the papers based on the material currently before the Commission.
Having regard to the above chronology of events and the opportunities afforded to the Applicant to file materials in relation to the jurisdictional issue, I intend to now determine the application based on the material before me which is limited to the Form F8 application form, the letter of engagement, a text message exchange dated 29 February 2024, an email dated 1 March 2024, and the employer’s Form F8A response form.
Background
The Applicant commenced employment with the Respondent as a Test Manager on 4 September 2023. The Applicant was to be engaged for a total of 292 billable days, ceasing on 31 December 2024. In her application the Applicant states that on the morning of 28 February 2024 she was feeling unwell due to a shoulder injury and texted her line manager Mr Alan Oberhauser to advise that she would be taking time off work for a few days.
At 6:51pm on Thursday 29 February 2024, the Mr Justin Collins, Director of the Respondent sent the Applicant a text message in the following terms:
“Hi Christina, John, al, simon and I have just had a long chat about some issues we have within the project that I would like to discuss with you urgently. I have also been in contact with Luke from dpfem.
Is there a time tomorrow that you are free to take a call?Justin”
The Applicant replied to Mr Collins at 7:05pm as follows:
“Hi Justin,
That sounds worrisome. Are you free to talk now?
Regards,
Christina.”
The Applicant and Mr Collins then had a discussion by telephone on the evening of 29 February 2024, following which on Friday, 1 March 2024 the Respondent emailed the Applicant confirming the termination of her employment which would take effect on 8 March 2024. The email stated as follows;
“As a follow up from our discussion last night. For reasons outlined in our discussion I believe it is in the best interests of the NCIS project that we terminate your employment as Test Manager with Vision42 on this engagement with 1 week notice as at today. Your last day will be the 8 March 2024.
I have discussed the issues extensively with Alan (your line manager) and the client (DPFEM) and we believe it would be worthwhile providing you with further detail beyond what I discussed with you last night in order for you to gain further insight into the key areas of the position that we do not believe you were performing to a standard that we require.
On a personal note and after only learning of the passing of your family member last night I would like to suggest that you take the week off next week (effectively as paid leave) rather than working so that you can focus on these family matters. The only request I make is that you make some time to talk to Alan in order for you to return your DPFEM laptop and your DPFEM ID card next week please.
In relation to the opportunity to obtain further detail on the performance issues we discussed last night, I will discuss this further with Alan and we will formally provide a summary of these to you in writing shortly in addition to my conversation with you last night.
As agreed, and further communicated with you this morning, I am actively seeking other
opportunities where I believe you may be a better fit. These are more junior testing roles rather than manager. As you agreed that this would be something of help to you, I will continue to explore these and keep you in the loop as these present if that is still what you would like.I am sorry that things have not worked out as we had both planned and I hope we can work together to find you a more suitable role for the future.
Please feel free to reach out to me or Alan at any time to discuss further.”
On 13 March 2024, the Applicant met with a solicitor to whom she was referred by the Commission’s Workplace Advice Service (WAS) to discuss her dismissal and whether she had a basis to proceed with an application to the Fair Work Commission (the Commission). The Applicant claims that the solicitor advised her to make an unfair dismissal application as she fulfilled the requirements to make such an application including having met the six-month minimum employment period (MEP). On 28 March 2024, the Applicant lodged an unfair dismissal application (U2024/3672).
On 7 April 2024, the Applicant was sent a letter from the Commission advising that she may not have met the MEP required to make an unfair dismissal application. The Applicant states in her Form F2 that following receipt of this correspondence she reviewed s 383 of the Act, at which point she realised that she did not meet the six-month MEP and therefore did not meet the criteria to make an unfair dismissal application.
On 12 April 2024, the Applicant emailed the Commission and detailed the background to her unfair dismissal application including the advice she says she received from the WAS solicitor. The Applicant stated in her correspondence that prior to meeting with the WAS Solicitor on 13 April 2024 she had emailed them a draft Form F8 general protections application as she had originally intended to file a general protections application. The Applicant also wrote that she received an email from the WAS Solicitor shortly after their meeting that summarised the advice, relevantly including that she had a sound argument that she met the MEP. That written advice said to have been received by the Applicant on 13 March 2024 was not produced in evidence. The Applicant also wrote in her 12 April 2024 email to the Commission that had she any reason to doubt the solicitor’s advice, she would have lodged a general protections application on 28 March 2024 rather than the unfair dismissal application.
In her 12 April 2024 correspondence to the Commission, the Applicant also sought advice from the Commission as to whether her unfair dismissal application would proceed or if she could swap her completed Form F2 unfair dismissal application for her completed Form F8 general protections application as they were both dated 28 March 2024. She also asked whether she should pay the fee for the unfair dismissal application or a general protections application.
On 15 April 2024, a staff member of the Commission contacted the Applicant by telephone and the Applicant explained that although she had also prepared a general protections application at the same time as she had prepared her unfair dismissal application, she filed the unfair dismissal application on the advice of the WAS solicitor. The Applicant acknowledged during the telephone call that based on the information on the Commission’s website, she did not meet the MEP. The staff member of the Commission then explained to the Applicant the process for pressing her unfair dismissal application or alternatively withdrawing that application and lodging a Form F8 application outside the 21 day filing period. The Applicant then indicated she would consider her options and contact the Commission by close of business 19 April 2024 with a decision.
On 19 April 2024, the Applicant emailed the Commission advising that she wished to discontinue her unfair dismissal application. In that same email the Applicant indicated that she would “likely be applying under General Protections instead.” She then filed her general protections application on 22 April 2024.
Consideration
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.
The Applicant’s dismissal took effect on 8 March 2024. Therefore, the period of 21 days ended at midnight on 29 March 2024 and as the Application was made on 22 April 2024, it was filed 24 days outside of the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2) of the Act.
The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) 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 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like 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. I now turn to consider these matters in the context of the Application.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 March 2024. The delay is the period commencing immediately after that time until 22 April 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]
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] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].
The chronology of events is set out above. It reveals that shortly after her dismissal the Applicant received advice on 13 April 2024 through a WAS solicitor on whether she had a basis to proceed with an application to the Commission in respect of her dismissal. Notwithstanding the absence of probative evidence as to the specific advice received from the WAS solicitor, I am prepared to accept that up until the Applicant received the Commission’s 7 April 2024 correspondence, the Applicant had proceeded in the mistaken belief that she was able to make an unfair dismissal application. Following receipt of the 7 April 2024 correspondence from the Commission, the Applicant reviewed s 383 of the Act and confirmed that she had not met the MEP. The Applicant was clearly on notice on 7 April 2024 that her unfair dismissal application was at significant risk on the basis of her not having met the MEP.
Notwithstanding having been put on notice on 7 April 2024 by the Commission regarding the jurisdictional vulnerability of her unfair dismissal application and then confirming herself that she did not meet the MEP, there was a further two week delay in the Applicant filing her general protections application. The Applicant in her correspondence to the Commission dated 12 April 2024 raised that she was contemplating whether to make a general protections application rather than an unfair dismissal application. This is made clear by the Applicant seeking advice on whether it was possible to replace the Form F2 application filed with her Form F8 general protections application.
I accept that the Applicant was not entirely inactive in the 2 week period following the Commission’s 7 April 2024 correspondence. She responded to that correspondence on 12 April 2024, spoke with a Commission staff member on 15 April 2024 and then withdrew her unfair dismissal application on 19 April 2024. What is not explained however is the delay between 7 April 2024 when put on notice by the Commission regarding the MEP issue and 12 April 2024 when she responded to the 7 April 2024 correspondence. Nor has an explanation been provided for the further delay between the telephone conversation on 15 April 2024 and the 22 April 2024 when the Applicant filed her general protections application.
For the reasons set out above, I am satisfied that the Applicant has provided an acceptable reason for her delay in filling her application for the period from 29 March – 7 April 2024, that delay being explained by the Applicant receiving and acting on legal advice she received on filing an unfair dismissal application. However, I am not satisfied that the Applicant has provided an acceptable explanation for the delay for the periods from 7 – 12 April 2024 and from 15-22 April 2024. The failure to provide an acceptable explanation for the entire period of the delay weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant took action to dispute her dismissal by filing an unfair dismissal application on 28 March 2024. That application was subsequently withdrawn on 19 April 2024. While the making of her unfair dismissal application constitutes action to dispute her dismissal, I have already taken that into account in considering the reason for the delay in filing her general protections application. It is therefore a neutral consideration for the purposes of this factor.
Prejudice to the employer
The Application was filed 24 days outside of the 21-day period. I find in the circumstances, there would be limited if any prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the Application in considering whether to extend time. Neither party filed submissions or evidence going to the merits of the application, the only material before me is the Form F8 application and Form F8A response form. The Applicant contends she was dismissed because of a temporary absence due to injury, because she exercised a right to be treated without gender discrimination and also in order to prevent her from exercising her right to make a formal complaint about her line manager Mr Oberhauser. The Respondent argues that the decision to terminate the Applicant’s employment was solely based on her performance.
Having reviewed the limited material before me, it is evident that the merits of the Application may turn on contested points of fact which would ultimately need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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 a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are 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 366(2) of the Act. Accordingly, the general protections application must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[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 at [39].
[5] Ibid at [40].
Printed by authority of the Commonwealth Government Printer
<PR775481>
0
2
0