Christine Williams v Veris Australia Pty Ltd
[2024] FWC 2913
•21 OCTOBER 2024
| [2024] FWC 2913 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christine Williams
v
Veris Australia Pty Ltd
(C2024/6072)
| COMMISSIONER CRAWFORD | SYDNEY, 21 OCTOBER 2024 |
General protections dismissal dispute - application filed out of time – unfair dismissal application filed within time – marginal finding of no exceptional circumstances – application dismissed.
BACKGROUND
Christine Williams has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Williams’ allegations that she was dismissed from her employment with Veris Australia Pty Ltd (Veris) in contravention of Part 3-1 of the FW Act.
Ms Williams commenced employment with Veris on 28 June 2023 as a Regional Commercial Manager. Veris provides surveying and spatial data services. Ms Williams was dismissed by reason of redundancy on 4 July 2024.
Ms Williams filed a Form F8 general protections application on 29 August 2024.
Veris filed a Form F8A employer response on 16 September 2024. Veris has objected to Ms Williams’ general protections application on the ground that the application was filed out of time. Veris has also objected to the application on the basis that Ms Williams has made another application dealing with the dismissal.
I issued directions for the filing of material in relation to whether I should grant an extension of time to Ms Williams and listed the matter for hearing via video on 11 October 2024.
Ms Williams represented herself at the hearing on 11 October 2024. I granted permission for Veris to be represented by Justin Pen, of Counsel, who was instructed by Vishmitha De Alwis and Matt Schwab from Gadens. No objection was raised by Ms Williams to the Respondent being represented, and I was satisfied that granting permission would enable the matter to be dealt with more efficiently.
MATERIAL FILED
Ms Williams
Ms Williams filed a number of documents that contained a mixture of evidence and submissions in support of her application. Ms Williams provided evidence about her dismissal and the reason for the delay in her Form F8 application and in a document filed on 26 September 2024.
Ms Williams filed the following documents:
· A flowchart which shows Veris’ National Operating Model and Business Units.
· An email from Michael Howard (Regional Manager – Queensland) to Ms Williams and others on 30 May 2024. The email concerns a team meeting held earlier in the day on 30 May 2024.
· An email from Ms Williams to Mr Howard on 3 June 2024 regarding Ms Williams wishing to take three weeks off from 10 August 2024 to 1 September 2024. Mr Howard responds that won’t be a problem on 3 June 2024 and Ms Williams thanks him in an email sent on 4 June 2024.
· An email from Ms Williams to Mr Howard sent on 17 June 2024. Ms Williams’ email refers to her new role as National Commercial Manager for Engineering Survey and states she has not received a job description yet.
· A letter from Phil Nicholls (Regional Manager NSW/ACT) to Ms Williams dated 18 June 2024. The letter gives notice of a consultation phase commencing for an organisational restructure. The letter states it is evident the engineering service cannot sustain the position of Commercial Manager for the engineering service line. The letter requests that Ms Williams consider three options which the company proposes are available to her: any proposed measures Ms Williams may have to avert or mitigate the redundancy, or redeployment, or redundancy
· A letter from Sonya Gomes (GM People and Culture) to Ms Williams dated 20 June 2024. The letter refers to Ms Williams sending an email about the restructure on 18 June 2024. Ms Gomes clarifies that the restructure involves moving from a regional model to a national model and that as a result, all Regional Manager and Regional Commercial Manager roles will be redundant. Ms Gomes refers to Ms Williams’ current role as Regional Commercial Manager NSW. Ms Gomes states there will not be a Commercial Manager role for the Engineering Business Unit, and that the existing Commercial Managers have been considered for redeployment into the new Commercial Manager roles. Ms Gomes informs Ms Williams that other candidates were considered better suited to the new Commercial Manager roles, and that each of those new roles had been filled. Ms Gomes states redeployment to other roles has been considered by Veris but no roles have been found that would be suitable for Ms Williams. Ms Gomes refers to a meeting with Ms Williams on 24 June 2024 to discuss the letter.
· A letter from Ms Gomes to Ms Williams dated 3 July 2024. Ms Gomes refers to communication from Ms Williams in which Ms Williams declined to attend the meeting scheduled for 24 June 2024 due to of ongoing legal proceedings. Ms Gomes states the restructure has now been implemented and Ms Williams’ role is redundant. Ms Gomes requests that Ms Williams attends a meeting on 3 July 2024.
· A letter from Ms Gomes to Ms Williams dated 4 July 2024. Ms Gomes states Ms Williams did not attend meetings to discuss her employment on 24 June 2024 and 3 July 2024. The letter confirms Ms Williams’ employment is terminated effective 4 July 2024 by reason of redundancy.
· Emails dated 28 March 2024 concerning Stephanie Bowness being appointed to the role of Acting Regional Commercial Analyst. Ms Williams congratulated Ms Bowness on the appointment.
· A document which compares Ms Williams’ skills and experience to Ms Bowness’ skills and experience.
· A Form F50 Notice of Discontinuance filed by Ms Williams in relation to an unfair dismissal application (U2024/8486) against Veris which is dated 27 August 2024.
I marked these documents collectively Exhibit A1, and this was not opposed by Veris. Ms Williams was not required for cross-examination.
Ms Williams provided oral submissions at the end of the hearing.
Veris
Veris filed a large number of documents as attachments to its Form F8A, which was filed in the Commission on 16 September 2024. Most of the documents related to Veris’ restructuring process and various communications with Ms Williams. The documents also included:
· The Form F3 Employer response filed by Veris in response to Ms Williams’ unfair dismissal application on 9 August 2024.
· Ms Williams’ contract for the Regional Commercial Manager position to commence on 28 June 2023. The contract refers to a salary rate of $180,000 plus superannuation.
· A copy of a general protections court application filed by Ms Williams in the Federal Circuit and Family Court of Australia on 20 June 2024. Veris is named as the respondent. The application alleges Veris has taken adverse action against Ms Williams in contravention of the protection in s.340 of the FW Act concerning workplace rights. The relief sought in the application is compensation and pecuniary penalties. The application refers repeatedly to an unlawful termination with reference to the redundancy process that had been commenced, but not concluded, by Veris. Ms Williams’ application remains before the court.
I marked the various documents attached to the Form F8A as Exhibit R1. Ms Williams did not oppose the documents being admitted into evidence.
Veris relied on a witness statement from Diana Diaz (Special Counsel at Gadens) dated 4 October 2024. Ms Diaz’s statement provides a chronology of the following events:
i.Ms Williams filed a general protections court application on 20 June 2024. Ms Diaz states the application was filed under rule 30.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 which relates to general protections claims not involving dismissal.
ii.On 4 July 2024, Ms Williams was provided with a termination letter by Veris.
iii.On 22 July 2024, Ms Williams filed an unfair dismissal application with the Commission.
iv.On 28 August 2024, Ms Williams filed a notice of discontinuance in relation to her unfair dismissal application.
v.On 29 August 2024, Ms Williams filed the Form F8 application that is currently before the Commission.
A screenshot concerning Ms Williams’ general protections court application and a copy of her termination letter were attached to Ms Diaz’s statement.
I marked Ms Diaz’s statement Exhibit R2. Ms Diaz was not required for cross-examination.
Veris relied on an outline of submissions dated 4 October 2024. Mr Pen made oral closing submissions at the end of the hearing.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act 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.
There is no dispute that Ms Williams filed her application on 29 August 2024.
When did the dismissal take effect?
It is not in dispute, and I find, that Ms Williams’ dismissal took effect on 4 July 2024.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 4 July 2024. The final day of the 21-day period was therefore 25 July 2024 and ended at midnight on that day. The application was 35 days late on 29 August 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under s.366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by Ms Williams to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between Ms Williams and other persons in a similar position.
Each of the above 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
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 25 July 2024. The delay is the period commencing immediately after that time until 29 August 2024, although circumstances arising prior to that delay 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]
Ms Williams 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 Ms Williams has not provided any reason for any part of the delay.[5]
Ms Williams relies on her initial erroneous filing of an unfair dismissal application as the reason for the delay in filing her general protections application. Although Veris had identified that Ms Williams was not eligible to make an unfair dismissal application in the Form F3 it filed on 9 August 2024, Ms Williams indicated during the hearing that she did not completely accept that position until it was communicated to her by a Commission staff conciliator on 27 August 2024. Ms Williams gave evidence that upon being told she had filed the incorrect application she promptly discontinued her unfair dismissal application on 28 August 2024 and filed this application the next day, on 29 August 2024. Ms Williams highlighted that her unfair dismissal application was filed on 22 July 2024 which was within 21 days of her dismissal taking effect.
Veris argued a delay caused by a lack of awareness about the correct jurisdiction was not an adequate explanation of the delay. Veris referred to various comparable first instance decisions where an extension of time was not granted, including the following statement made by Deputy President Bell in Angela Gibbons v Advan Pty Ltd[6] in relation to an 8-day delay in filing:
“The reason for the delay is, at its heart, due to a belated realisation that the Applicant’s unfair dismissal claim was likely to fail because of a jurisdictional requirement. That itself is not exceptional nor, in my view, even particularly remarkable.”[7]
However, there are various other examples of the Commission granting an extension of time after an applicant has filed an incorrect type of application within the 21-day period. For example, in Poulton v Rail Infrastructure Corporation, a Full Bench of the Australian Industrial Relations Commission found in relation to predecessor extension of time provisions:
“Whilst all matters are determined on their own facts, and our finding as to an acceptable explanation is made on the basis of the particular circumstances recorded above, we note that there are other decisions of the Commission which have accepted as an acceptable explanation for delay, late lodgement caused by a reasonably based application in another jurisdiction, where prompt action had been taken to initiate a s.170CE application, once the absence of jurisdiction in the State tribunal has been established.”[8]
As the Full Bench stated above, each case ultimately turns on its facts. Provided that the decision maker considers all the factors set out in s.366(2), the function of this provision in the FW Act allows for discretion of the Commission when determining whether an applicant should be granted an extension of time, taking into account the particular circumstances of each case. The effect of which means that one type of explanation will not always provide a satisfactory reason for the delay, nor that a particular type of explanation will never provide a satisfactory reason for the delay
In this case, I do not consider Ms Williams has provided a satisfactory explanation for the delay in filing her general protections application. The reason that Ms Williams is not able to access the unfair dismissal jurisdiction is because her earnings of $180,000 per year plus superannuation were above the high-income threshold of $175,000, and her employment with Veris was not covered by an enterprise agreement or modern award. That is quite a straightforward matter and information about the high-income threshold is readily available online.[9] Given Ms Williams was able to navigate the filing of a general protections court application on 20 June 2024, I consider she should have been able to identify that she was not eligible to make an unfair dismissal application. That is particularly the case from 9 August 2024 when Veris alerted Ms Williams to the jurisdiction issue in its Form F3 response. Ms Williams indicated she did not trust Veris’ advice. That is understandable. However, it appears Ms Williams then took no steps to investigate whether the advice was right until the staff conciliation conference on 27 August 2024.
During the hearing, Ms Williams sought to rely on the decision of Lane v Kangaroo Island Dive & Adventures Pty Ltd.[10] as an instance in which an extension of time has been granted for an applicant who filed the incorrect application. I find that Ms Williams’ case is distinguishable from Lane for the following reason. In the case of Lane, then Senior Deputy President O’Callaghan found that the applicant filed the incorrect application on advice from a community legal centre.[11] It was only during the conference held by the Commission that the applicant become aware he had filed an incorrect application.[12] In this case, and as I have found above, Ms Williams was alerted to the jurisdictional issue prior to the conference and there is no evidence before me to indicate what steps Ms Williams took, if any, to query whether she had made the correct application.
It is also unclear why Ms Williams was not able to seek legal advice in relation to her dismissal, particularly after Veris raised the jurisdictional issue on 9 August 2024. Ms Williams seems to have decided to rely solely on her own research and then advice from a staff conciliator on 27 August 2024. It would not have taken long for a lawyer to explain why Ms Williams was ineligible to make an unfair dismissal application if she had sought legal advice. Given the reason Ms Williams was not eligible to make an unfair dismissal application was because her earnings exceeded the high-income threshold, one would assume Ms Williams would have had the financial resources to seek legal advice. Ms Williams led no evidence to indicate why that was not the case.
Ms Williams explained that she was not intentionally delaying making an application and that the delay solely arose from her decision to initially file an unfair dismissal application. I accept that is the correct explanation. However, it is well established that ignorance is not a satisfactory explanation for filing an application late.[13]
I do not consider Ms Williams has a satisfactory explanation for the delay and I consider this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
What action was taken to dispute the dismissal?
Ms Williams clearly took action to dispute her dismissal by filing an unfair dismissal application on 18 July 2024. I reject Veris’ submission that this factor should be treated as neutral in the overall assessment. Veris was fully aware Ms Williams was disputing her dismissal from at least 18 July 2024, and arguably from 20 June 2024 when Ms Williams filed a general protections court application before her dismissal had taken effect. I consider Ms Williams took action to dispute her dismissal and this weighs significantly in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Veris relied on a decision from then Deputy President Asbury in Nicolas JR v Nortask Pty Ltd[14] where it was found that having to deal with a previous application filed in the wrong jurisdiction meant that the relevant employer had suffered prejudice above and beyond that encountered with a regular application. Veris submitted that this decision has been cited in numerous other cases. I accept Veris’ argument. However, I consider prejudice to the employer weighs only marginally against a finding of exceptional circumstances and the granting of an extension of time in this case.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[15]
The parties have vastly different accounts of what occurred in relation to Ms Williams’ employment with Veris and why it ended. Technical evidence about the operations of Veris and the restructuring process will need to be assessed to determine which account is correct. I cannot undertake that task when determining an extension of time application.
In the circumstances, I consider the merits to be a neutral factor.
Fairness as between Ms Williams and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[16] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[17]
Veris argued this factor weighs against a finding of exceptional circumstances and the granting of an extension of time with reference to numerous other cases where an extension has not been granted after an applicant initially filed in the wrong jurisdiction. However, there are also various decisions where an extension of time has been granted after the applicant initially filed in the wrong jurisdiction[18]. I consider fairness between Ms Williams and other persons in a similar position to be a neutral factor in this case.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[19] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually may be of no particular significance, when taken together cumulatively, can be considered exceptional.[20]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am marginally not satisfied that there are exceptional circumstances.
Ms Williams does not have a satisfactory explanation for why she missed the 21-day filing deadline. I have accepted Veris will suffer a degree of prejudice if an extension is granted. I consider these factors marginally outweigh the action Ms Williams took to dispute her dismissal, in the overall assessment of exceptional circumstances.
Ms Williams is clearly aggrieved about her treatment by Veris and wants to have her day in court. Ms Williams’ general protections court application is still before the Federal Circuit and Family Court of Australia. That proceeding will allow for judicial consideration of many of the events associated with the end of Ms Williams’ employment.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Ms Williams representing herself.
Mr Pen of Counsel representing Veris Australia Pty Ltd, instructed by Gadens.
Hearing details:
2024.
Sydney (by video via Microsoft Teams).
11 October.
[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 at [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 at [39].
[5] Ibid at [40].
[6] [2023] FWC 667.
[7] Ibid at [45].
[8] PR966972, AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005 at [42].
[9] See for example: Unfair dismissal | Fair Work Commission (fwc.gov.au).
[10] [2010] FWA 3939.
[11] Ibid at [13].
[12] See ibid.
[13] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].
[14] [2014] FWC 5324 at [69].
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36].
[16] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
[17] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [19].
[18] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [30].
[19] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[20] See ibid.
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