Donna Sedgman v Mansfield Golf Club Incorporated

[2021] FWC 6323

[2021] FWC 6323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Sedgman
v
Mansfield Golf Club Incorporated
(U2021/8993)

COMMISSIONER MCKINNON MELBOURNE, 11 NOVEMBER 2021

Application for an unfair dismissal remedy - application filed late - additional time not allowed.

[1] Ms Donna Sedgman was employed as a Golf Shop Attendant by Mansfield Golf Club Incorporated from 8 February 2018 until 6 May 2021 when she resigned with immediate effect. Ms Sedgman says she was forced to resign because of the conduct of Mansfield Golf Club. Ms Sedgman feels victimised, ignored, and bullied by the Mansfield Golf Club after a roster change was made automatically without consultation in May 2021 and following her unsuccessful request for reclassification from Grade 2 to Grade 3 under the Registered and Licenced Clubs Award 2020.

[2] On 8 October 2021, Ms Sedgman applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows. 1 The application was made more than four months late, well outside the prescribed 21-day period.

[3] The question is whether to allow additional time for Ms Sedgman to make her application. I have decided not to allow additional time, with the result that it is not necessary to decide the separate question of whether Ms Sedgman was dismissed. Had it been necessary to decide, however, I would have found that Ms Sedgman resigned and was not dismissed. These are my reasons.

Extension of time

[4] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) provides 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. A further period can only be allowed if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

[5] The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group 2:

“•  In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 3 [Emphasis added]

[6] Section 394(3) of the Act sets out certain matters that are to be taken into account in deciding whether there are exceptional circumstances. These are:

•  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.

Relevant factors

[7] Reason for delay: There are three reasons given by Ms Sedgman for the delay in making her application. Firstly, Ms Sedgman tried to resolve the situation with Mansfield Golf Club. Secondly, Ms Sedgman reapplied for her position. Thirdly, Ms Sedgman was not aware of her unfair dismissal rights until she visited the “Fair Work website”, because she resigned.

[8] Ms Sedgman tried to resolve her issues with Mansfield Golf Club by speaking with the Gaming Manager about coming back and following up on this conversation by emailing Mr Greg Nugent, General Manager, on 12 May 2021. After Mr Nugent replied on 18 May 2021 that he was happy to discuss the option of future casual work, Ms Sedgman emailed him on 20 May 2021 and again on 5 June 2021. She waited for Mr Nugent to reply but he did not. Ms Sedgman then sent a letter to the President and the Board of Mansfield Golf Club on 25 June 2021. The Board responded to her email on 1 July 2021 noting her resignation, its limited role in that context and confirming that she was not precluded from future work with the Club.

[9] Over this period, Ms Sedgman reapplied for her retail assistant position which she saw advertised in the local paper in late May 2021. The application to which Ms Sedgman refers comprises the emails to Mr Nugent described above on 20 May 2021 and 5 June 2021, following his offer to discuss future casual work on 18 May 2021. Mansfield Golf Club advertised another job on its Facebook page on 15 July 2021. Ms Sedgman spoke with her previous supervisor, Mr Blair St Anne, and asked if many had applied for the position. Mr St Anne asked Ms Sedgman if she would be happy to come back (something he did more than once) and said he would speak to Mr Nugent. The discussion did not lead to a further opportunity for work for Ms Sedgman.

[10] In around the end of May or early June 2021, Ms Sedgman visited the “Fair Work website” to research her rights after resignation. She completed the unfair dismissal eligibility quiz and discovered that she could make an unfair dismissal claim. She did not make a claim. The COVID-19 pandemic worsened over the Victorian winter, and while Ms Sedgman found work in a ski hire business until the end of September, the business closed due to the pandemic at the end of September 2021. On 2 October 2021, Ms Sedgman printed the Form F2 unfair dismissal form from the Commission’s website, filled it out and filed this application in the Commission on 8 October 2021.

[11] Whether the person first became aware of the dismissal after it had taken effect: Ms Sedgman knew that her employment had ceased on the day she resigned by email on 6 May 2021.

[12] Any action taken by the person to dispute the dismissal: Ms Sedgman wrote to the President and the Board on 25 June 2021 to set out her concerns about the circumstances leading to the end of her employment. She did not otherwise seek to dispute the cessation of her employment until this application was made.

[13] Prejudice to the employer (including prejudice caused by the delay): I am satisfied that there is the potential for prejudice to Mansfield Golf Club if the application proceeds given the time that has passed since 6 May 2021. The fading of memories may affect the quality of evidence in the case, including because much of the factual matrix in dispute relies on the recollection of conversations held in person, with no records made.

[14] Merits of the application: The merits of the case are not strong. All of the evidence (which it must be said is only limited at this stage) points to Ms Sedgman having resigned of her own volition, in circumstances where she was unhappy with how she was being treated. On the face of the record, Ms Sedgman had an effective choice either to resign or to remain in employment and seek resolution of her concerns through other means.

[15] Fairness as between the person and other persons in a similar position is not a relevant consideration on the materials before me.

Conclusion

[16] I am not satisfied that there are exceptional circumstances in this case or that additional time should allowed to Ms Sedgman to apply for an unfair dismissal remedy. It was reasonable for Ms Sedgman to attempt to resolve her concerns and regain employment with Mansfield Golf Club in May and June 2021 and to wait for Mr Nugent to reply, but there is no reason why Ms Sedgman could not have made her application to the Commission in the meantime. Had the application been made in late May 2021, it may well have been made in time. It is unexceptional that Ms Sedgman did not know about the option of unfair dismissal at the time her employment came to an end. Even so, this gap in knowledge was cured by the end of May or early June 2021 at the latest. It is also unexceptional that Ms Sedgman found other work after her employment with Mansfield Golf Club came to an end.

[17] Even if I was satisfied of the existence of exceptional circumstances in this case, I would not exercise my discretion to allow additional time for the application to be made. Ms Sedgman knew her employment had come to an end at the time that it did. She believed, at that time, that Mansfield Golf Club was responsible, acting through Mr Nugent. She researched her options for unfair dismissal and realised that forced resignation is a category of dismissal for the purposes of unfair dismissal. However, Ms Sedgman did not take any steps to dispute her situation or to protect her position from July 2021 until 8 October 2021. I am not persuaded that the pandemic contributed to the delay. The merits of the case are not strong and there is the potential for prejudice to Mansfield Golf Club if the application proceeds because of the time between the cessation of employment and commencement of the claim. On balance, the case for additional time is not made out.

[18] As there are no exceptional circumstances, I cannot allow additional time to Ms Sedgman to make her application. The application is dismissed.

COMMISSIONER

Appearances:

D. Sedgman on her own behalf.
G. Nugent for the Respondent.

Hearing details:

2021.
Melbourne, video via Microsoft Teams:
10 November.

Printed by authority of the Commonwealth Government Printer

<PR735702>

 1   Fair Work Act 2009 (Cth), s 394(2)

 2 [2011] 203 IR 1.

 3 Ibid at [13].