Danielle Allen v Commonwealth Bank of Australia
[2024] FWC 2465
•10 SEPTEMBER 2024
| [2024] FWC 2465 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danielle Allen
v
Commonwealth Bank Of Australia
(U2024/8876)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 10 SEPTEMBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Danielle Allen (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Commonwealth Bank of Australia (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 4 September 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from her employment with the Respondent took effect on 9 November 2023. The Applicant lodged her unfair dismissal application in the Commission on 31 July 2024.
Section 394(2) of the Act states that an application for an unfair dismissal remedy 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). The period of 21 days ended at midnight on 30 November 2023. The application was therefore filed 244 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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.[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 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 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. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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 of the circumstances must be considered.[5]
Relevant facts and submissions
On 13 September 2023, the Respondent commenced a period of consultation with the Applicant in relation to changes in the operational requirements of the Respondent’s business. 86 other employees in the Applicant’s broader team, Home Buying Operations, within Retail Operations, were impacted by these changes.
On 28 September 2023, the Applicant was notified that her role of Credit Risk Senior Analyst was no longer required and would be made redundant with effect from 28 September 2023. A six week redeployment period then took place, during which time the Respondent attempted to find alternative employment for the Applicant.
Because an alternative role was not found for the Applicant, her employment with the Respondent came to an end on 9 November 2023 and she received a severance payment. At the time of her dismissal, the Applicant was suspicious that her redundancy was not genuine, because she believed her position was a critical one and she was not provided with an explanation of the operational changes which had given rise to the decision to make her position redundant.
The Applicant contends that she was told in her exit interview that, for a period of 12 months after her dismissal, she was unable to apply for a role with the Respondent and the Respondent was unable to advertise for her role. The Respondent denies that it informed the Applicant that it was unable to create or fill any role similar to the Applicant’s role for a period of 12 months after the Applicant’s dismissal.
On 8 July 2024, the Applicant was notified by Seek.com of a job advertisement by the Respondent for a role of Credit Risk Senior Analyst. The advertisement was created on 5 July 2024.
During the afternoon on 8 July 2024, the Applicant exchanged text messages with one of her former work colleagues at the Respondent. The Applicant’s former work colleague informed her, among other things, that the Respondent had “just hired new people”.
During the evening on 8 July 2024, the Applicant sent an email to the Respondent in relation to the fact that it was advertising for what she considered to be her role. The Applicant was informed by reply email that the Respondent’s workplace relations team would “investigate what is occurring”.
On 12 July 2024, the Applicant followed up the matter because she had not received a response from the Respondent.
At 12:01pm on 16 July 2024, the Applicant received an email from the Respondent informing her that the issue was being raised with the relevant business unit.
At 12:26pm on 16 July 2024, the Applicant replied by email to the Respondent stating that she intended to “take this further unless appropriate resolution is provided by the workplace relations” team.
By email sent at 9:31am on 17 July 2024, the Respondent’s human resources team informed the Applicant that “workplace relations would not have any further involvement on this matter as they have raised with your business unit. Our recommendation is for you to return to your business unit to discuss”.
The Applicant replied by email sent at 8:48am on 24 July 2024, asking whether there was anything “more CBA is willing to investigate or comment on this matter”.
By email sent on 29 July 2024, the Respondent again advised the Applicant to discuss her concerns with her business unit.
On 30 July 2024, the Applicant sent an email to the Respondent asking for the email address of “Tanja” from her business unit.
By email sent at 1:08pm on 31 July 2024, the Respondent informed the Applicant by email that she needed to reach out to her business unit for further information.
By email sent at 1:13pm on 31 July 2024, the Applicant informed the Respondent that she had been advised to contact her business unit but she did not have any contact details for them. The Applicant again asked for “Tanja’s” email address, which was provided to her at 1:22pm on 31 July 2024. The Applicant then emailed “Tanja” and did not receive a response.
At 3:25pm on 31 July 2024, the Applicant filed her unfair dismissal application in the Commission.
The Applicant says that the reason for her application being many months outside the 21 day period provided for in the Act is because she was not aware that the Respondent had begun hiring new employees until 8 July 2024. The Applicant then liaised with the Respondent to see if she could resolve the matter. The Applicant gave the Respondent some time because they informed her that they would investigate the matter. The Applicant did not make any progress in her direct communications with the Respondent, so she immediately filed her unfair dismissal application in the Commission
The Respondent says that from around March 2024, due to increased workload in its broader Retail Operations team, it had a genuine business need to create and recruit for a number of roles, including the roles very similar to that occupied by the Applicant before her dismissal. The Respondent submits that the creation of these positions does not undermine the submission that the Applicant’s position was genuinely redundant in November 2023, nor does it provide a reasonable explanation for the delay.[6]
Consideration
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the long delay in filing her unfair dismissal application. The Applicant informed the Commission at the hearing on 4 September 2024 that she had suspicions, at the time her employment was terminated in November 2023, that her redundancy was not genuine because her position was a critical one and she was not provided with an explanation of the operational changes which had given rise to the decision to make her position redundant, and these suspicions were confirmed when she became aware in July 2024 that positions the same or similar to hers were being advertised and filled. The suspicions the Applicant held in November 2023 provided her with a proper basis to challenge the genuineness of her redundancy. There was no reason why the Applicant could not have lodged an unfair dismissal application in the Commission within 21 days of her dismissal.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 31 July 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the day it took effect 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
The Applicant took some action to dispute her dismissal in her email correspondence with the Respondent in the period from 8 July 2024 to 31 July 2024. This provides some weight to the Applicant’s argument that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. 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 little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. 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.
There is force in the Respondent’s submission that it made a decision to make operational changes in September 2023, which impacted not only the Applicant but another 86 employees. The Respondent engaged in consultation with the Applicant, followed by a six week redeployment period, before terminating the Applicant’s employment on the grounds of redundancy in early November 2023. Some four months later, in response to increased workload in its broader Retail Operations team, the Respondent says that it recruited for a number of new roles, including some which were very similar to the role undertaken by the Applicant. The fact that an employer creates a new position after a position has been made redundant may suggest that the redundancy was not genuine. But it will all depend on the circumstances, including the period of time between the original redundancy and the new hiring, the number of positions impacted by the original restructure, the reasons for the original restructure and the reasons for the need to create new positions. In the present case, the time between the decision to make the Applicant’s position redundant (28 September 2023) and the hiring of new employees in March 2024 was about 5-6 months. Further, 87 employees, including the Applicant, were impacted by the restructure in September 2023. These factors support the Respondent’s contention that its decision to make the Applicant’s position redundant was genuine.
Having regard to all the circumstances, I consider the merits of the Applicant’s unfair dismissal application to be fairly weak, but not hopeless. This weighs against a conclusion that there are exceptional circumstances.
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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
The Respondent contends that because other employees were made redundant at the same time as the Applicant and they are in similar circumstances to the Applicant, it would be unfair to grant the Applicant an extension of time when those other employees are no longer eligible to bring their own unfair dismissal applications. I do not accept this argument. Whether other employees who were made redundant or impacted by the Respondent’s restructure in September to November 2023 could establish exceptional circumstances would depend on the individual circumstances of those cases. I do not have evidence of those circumstances.
In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action in July 2024 to dispute her dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Allen appeared for herself.
Ms Paxton-Hall appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
4 September.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Meagan Woods v Premier Bars Pty Ltd T/A Archive Beer Boutique and Lost West End[2020] FWC 6978 at [22]
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