Echo Beltsos-Russo v Home Care Services Australia Pty Ltd
[2024] FWC 1049
•22 APRIL 2024
[2024] FWC 1049 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.394—Unfair dismissal
Echo Beltsos-Russo
v
Home Care Services Australia Pty Ltd
(U2024/2746)
COMMISSIONER CIRKOVIC
MELBOURNE, 22 APRIL 2024
Application for an unfair dismissal remedy – extension of time – application dismissed.
[1] This decision concerns an application by Ms Echo Beltsos-Russo (Applicant) for an unfair dismissal remedy (UD application) pursuant to s.394 of the Fair Work Act 2009 (Act).
[2] Home Care Services Australia Pty Ltd (Respondent) submits that the Applicant’s employment was terminated with effect from 31 January 2024. The Applicant submits that her termination took effect when her payment in lieu of notice was received on 16 February 2024, or alternatively on 28 February 2024 when it was confirmed by the Senior Judicial Registrar in the Family Court of Australia (Family Court). The Applicant’s UD application was lodged on 8 March 2024. If the effective date of termination was 31 January 2024, the application is 16 days out of time. If the effective date of termination was either 16 February 2024 or 28 February 2024, the application is within time.
[3] 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 Fair Work Commission (Commission) allows pursuant to s 394(3).
[4] The Applicant was employed in the role of General Manager – Operations with the Respondent from 19 December 2019. At the time of termination, the Applicant’s remuneration was $120,000 a year plus superannuation. The Managing Director of the Respondent is Mr Simon Attilli. The Applicant and Mr Attilli are currently involved in a matrimonial dispute before the Family Court (the family law proceedings).
[5] The matter proceeded to hearing on the extension of time jurisdictional issue on 17 April 2024. The Respondent sought to be represented at the hearing pursuant to s.596 of the Act on the basis that representation would enable the matter to be dealt with more efficiently, noting the technical nature and legal complexity of the jurisdictional issues. The Applicant was self-represented and opposed the Respondent’s request for permission. I consider that unnecessary formality would be created by the granting of permission for legal representation. Further, a manifest unfairness between the respective parties would emerge if permission was granted and an imbalance created between an unrepresented applicant against the Respondent’s external legal representatives. The fairness criterion under s.596(2)(c) has, in this instance, operated strongly against the granting of permission.
Background
[6] The parties have provided fulsome submissions and tendered in evidence a chain of correspondence exchanged between the respective legal representatives pertaining to the matrimonial dispute and employment/IR matters. I note that the Applicant was represented by Mr Tickner of Bayside Solicitors and the Respondent by Hall and Wilcox in relation to the employment law/IR matters. As to the family law proceedings, the Applicant was represented by Mr Weerapah of Bayside Solicitors until on or around 7 February 2024, when Sayer Jones Family Lawyers commenced corresponding on behalf of the Applicant. The Respondent was represented by Advocate Family Lawyers in relation to the family law proceedings.
[7] For convenience, I have set out the relevant chronology gleaned from the written material before me:
· On 16 January 2024, a letter regarding the family law proceedings was sent by Mr Weerapah to Advocate Family Lawyers. The correspondence refers to a family law and property settlement. Relevantly, the correspondence foreshadows an application to “Fair Work Australia”, and states:
“Continued Employment of our Client
27. Echo has been a loyal hard-working member of Home Care Services Australia Pty Ltd and any attempt to disrupt her employment with the business will necessitate the matters of an Application to Fair Work Australia which will only add to further legal issues arising between both Simon and Echo.”
· On 17 January 2024, a Show Cause Letter is sent to Mr Weerapah by Hall and Wilcox. This correspondence foreshadows the proposed termination of the Applicant’s employment and states:
“Despite HCSA’s serious concern, we have not yet made a final decision and would like to give you an opportunity to respond to these matters and show cause why HCSA should not proceed with the termination of your employment.
You are invited to provide your written responses to the matters outlined above by 4pm on Thursday, 18 January 2024 by email to Simon Attilli (email address redacted).
After 18 January 2024, HCSA will then consider your responses and make a final decision regarding your employment based on the information available to it. You will receive the decision in writing by Tuesday, 23 January 2024.
During this time, you will continue to receive your normal salary payments however you are directed not to attend work premises or carry out any duties.”
· On 18 January 2024, Mr Tickner provided a response to the above letter to Hall and Wilcox which states, inter alia, that:
“Our instructions raised issues of potential unfair dismissal if your client decides to terminate. Otherwise, our client’s instructions indicate circumstances which would support an argument of constructive dismissal and adverse action.
We understand that your client has requested a response by 18 January 2024 and will make a decision in relation to our client’s employment by 23 January 2024. No doubt, you will counsel your client in relation to all employment law issues.
In the event that our client is dismissed based upon the allegations, which we say are not supported by particulars or facts, then proceedings will be issued immediately”.
· On 23 January 2024, a letter was sent by Hall and Wilcox to Mr Tickner. The letter states, inter alia, that “a decision regarding the Applicant’s employment was to be made by 23 January 2024”, and the Respondent is in the process of “finalising its investigations and will provide a decision to your firm by no later than Tuesday, 30 January 2024”.
· On 30 January 2024, a further email was sent by Hall and Wilcox to Mr Tickner, raising a further allegation requiring a response from the Applicant. This email relevantly stated:
“We invite your client to provide her response to the above matter by 12pm tomorrow, 31 January 2024. HCSA will take any response provided into account when making a determination regarding your client’s ongoing employment with HCSA. However, in the absence of a response by 12pm tomorrow, HCSA will have no choice but to make a decision regarding your client’s ongoing employment on the basis of the information at hand”.
· On 31 January 2024, Mr Tickner replied to Hall and Wilcox regarding the allegation raised by the Respondent in the following terms:
“We await your client’s decision in relation to our client’s employment, noting that there has now been a reasonable time within which to make a decision in relation to the investigation”.
· On 31 January 2024, Hall and Wilcox sent the following letter (termination letter) to Mr Tickner. This letter is reproduced below:
“On 31 January 2024, your legal representative provided a further response on your behalf to the allegation which included that you deny deleting any records off the computer and there were no documents on your desktop computer that were not otherwise saved to the central server.
Your responses, and further responses, have been considered and taken into account.
On the basis of the available information, and taking your responses into consideration, HCSA has made the decision to terminate your employment effective immediately. (my emphasis) This means your last day of employment will be today, 31 January 2024 (my emphasis).
Even though HCSA is entitled to summary terminate your employment at law, you will be paid in lieu of notice of termination, any salary and accrued but untaken annual leave as at 31 January 2024 (my emphasis).
Please return all HCSA property to HCSA offices by 4pm, 1 February 2024 (my emphasis), including your identification card, mobile phone, laptop with accessories, mouse, confidential information and any other company property in your possession.
Alternatively, if you would prefer that HCSA organise a courier for the company property to be picked up from your residential address on 31 January 2024, please confirm by return email to (email address redacted), including a timeframe in which you will be home for the courier to collect the company property.
With respect to the company car currently in your possession, you are required to return the company car to the HCSA offices by 4pm, 1 February 2024. When returning the company vehicle, please also return the spare key to the Ford Everest and Holden Redline, I believe are in your possession.”
· On 1 February 2024, Mr Tickner sent a response to the letter of 31 January 2024 to Hall and Wilcox stating, “Our client is taking legal advice and will reply within seven days”.
· On 7 February 2024, Sayer Jones Family Lawyers sent correspondence to Advocate Family Lawyers relevantly stating:
“Our client urgently requests the following:
Your client immediately desist from taking any further steps to effect our client’s termination from the business, Home Care Services Australia Pty Ltd”…
…
Our client considers she is left with no alternative but to put your client on notice, that in the event your client does not provide written confirmation he will refrain from attending to the above points 1 through 3, and sign an undertaking to this effect, by 9 February 2024, she will have no option but to commence proceedings in the Federal Circuit and Family Court of Australia on 12 February 2024.
…
Orders Sought
In the event our client is required to commence Court proceedings, she shall seek orders as follows:
A. Interim Orders
1. Your client immediately desist from taking any further steps to effect our client’s termination from the business, Home Care Services Australia Pty Ltd”…
On 12 February 2024, the Applicant wrote to the accounts team of the Respondent, querying her entitlements and foreshadowing proceedings with the Fair Work Ombudsman (FWO).
On 13 February 2024, the Applicant sent a further email foreshadowing proceedings with the FWO.
On 13 February 2024, Sayer Jones Family Lawyers sent correspondence to Advocate Family Lawyers. This correspondence relevantly states:
“Our client’s unilateral termination from Home Care Services Pty Ltd and restraints
We note your client has not agreed to immediately desist from taking any further steps from effecting our client’s termination from Home Care Services Pty Ltd. We remind your client that in the event she is formally terminated, our client will have no source of income and will be unable to meet her personal expenses and that of the parties (including her share of the mortgage repayments for the Gladstone Park Property). It is otherwise clear your client would have capacity to pay our client spousal maintenance to our client noting he has access to the income of the business that would otherwise be paid to our client.
We again seek your client immediately either:
1. Refrain from effecting our client’s termination; or
2. Pay our client spousal maintenance in the sum of $1,205 per week, with your client to also meet 100% of the mortgage repayments for the Gladstone Park Property.…”
· On 15 February 2024, Hall and Wilcox sent the Applicant an email requesting that the Applicant return the Respondent’s property and extending the timeframe during which the Applicant could return the Respondent’s property.
· On 16 February 2024, Hall and Wilcox sent the Applicant an email again requesting that the Applicant return the Respondent’s property and further extending the timeframe during which the Applicant could return the Respondent’s property.
· On 16 February 2024, Hall and Wilcox sent the Applicant a letter headed “Payment of Final Pay” reproduced below:
“We understand that due to the business’ cash flow, HCSA proposes to make your final pay in three instalments. Each instalment will be comprised of the following payments:
1.16 February 2024 - Payment in lieu of four weeks’ notice of termination.
2.23 February 2024 - First payment for accrued but untaken annual leave for an amount of $11,937.05.
3.1 March 2024: Final payment for accrued but untaken annual leave for an amount of $11,937.05”.
·On 16 February 2024, the Applicant was paid $9230.76 for her payment in lieu of notice.
·On 27 February 2024, the Applicant received a payslip for the period of 5 February 2024 – 11 February 2024. The payslip records a payment date of 16 February 2024 for her payment in lieu of notice and remaining balance of annual leave.
·On 6 March 2024, the Applicant contacted the Respondent seeking information regarding her final pay.
·On 8 March 2024, the Applicant filed her UD application with the Commission.
When did the dismissal take effect?
[8] The Respondent states the Applicant was terminated effective 31 January 2024. The UD application was lodged at 2.28pm on 8 March 2024. If the Applicant was terminated on 31 January 2024, the last day to lodge the application was 21 February 2024, and was therefore lodged 16 days out of time. As stated above, if the effective date of termination was either 16 February 2024 or 28 February 2024, the application was lodged within time.
[9] Essentially, the Applicant contends that she disputed her dismissal on 7 February 2024 and 13 February 2024, and that it was not until 28 February 2024 that the Applicant’s termination was confirmed in the Family Court by the Senior Judicial Registrar.
[10] The Applicant further submits that there was some confusion surrounding the Respondent’s decision to make payment in lieu of notice notwithstanding it terminated her employment for reasons of serious misconduct. Further, the Applicant submits that it was not made clear to her when the payment in lieu of notice would be paid until 16 February 2024 when she received her payment in lieu of notice and she did not receive any payslips until 27 February 2024. The Applicant contends that if her termination took effect on 16 February 2024 or 28 February 2024, the UD application is within time.
[11] It is not in contest that on 1 February 2024, the Applicant’s legal representatives confirmed receipt of the termination letter, and advised the Respondent that their client was taking legal advice and would reply within 7 days. At the hearing before me, the Applicant gave evidence that she did not instruct her employment law representatives to file a UD application in the Commission.
Legal principles
[12] It is well established that a dismissal does not take effect until it is communicated in clear and unambiguous terms to an employee.[1] In circumstances where payment in lieu of notice is made, courts have concluded that the end of the employment relationship coincides with the payment. Whether the employment relationship has been terminated is a question of fact.[2]
[13] In Ilves v Lawson Worldwide Forwarding Pty Ltd,[3] Deputy President Gostencnik made the following observations as to the law concerning construction of notice as follows:
“…In order to terminate an employment relationship, the party exercising the right to terminate must give clear and unequivocal notice that it no longer wishes to be bound by the employment contract. In other words, there must be no doubt in the mind of the party whose employment is being terminated that the employment relationship has come to an end. The law concerning the construction of notice is well established both generally and in the industrial relations context. Some of those established principles are outlined as follows.
[38] The principles governing the interpretation of contractual notices were summarised in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd. Although the notice in this case concerned the construction of a trust deed and notices under deed, the same principles of construction apply. Lord Steyn posited as follows:
“The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual sense. … the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind…” 60 [Emphasis added].
[39] More relevantly, as Hatcher VP observed in Ayub:
“The general principle is that to affect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.”
[40] Finally, in order to take effect, notice of termination of an employment relationship must stipulate when that termination is to take effect, or it must at least be possible to determine that time.” (emphasis retained)
[14] In Clarke v Uniti Group Ltd,[4] a Full Bench of the Commission considered the principles of the effect of a payment in lieu of notice on the effective date of termination as follows:
[17] Section 117(2)(b) prohibits the termination of an employee’s employment unless “the employer has paid to the employee . . . payment in lieu of notice of at least the amount the employer would have been liable to pay the employee . . . at the full rate of pay for the hours the employee would have worked until the end of the minimum period of notice”. Thus, payment in lieu of notice must be made before or at least at the time the employer effects the dismissal as is clear from the words underlined above.
[18] It must be accepted that a dismissal, which is principally concerned with the ending of the employment relationship governed by a contract of employment, may be effective even though notice of termination (or payment in lieu) does not comply with s. 117 of the Act or the dismissal of the employee was otherwise in breach of the employment contract. The employment contract and the employment relationship are related but distinct. And so a notice, whether oral or in writing, of dismissal which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship. Thus, the wrongful dismissal of an employee (because of inadequate notice or some other contractual breach) by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the contract, will generally be effective to bring the employment relationship to an end, but the contract of employment is not automatically thereby discharged.
[19] The Commission and its predecessor have, under the Act and the Workplace Relations Act 1996, approached the question of when a dismissal takes effect in a manner consistent with the common law principles relating to notice and the termination of an employment contract. At common law, an effective notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable.
[15] In the case before me, the Applicant was terminated summarily and was told that payment in lieu of notice would be made. It is not in dispute that the payment was not made until a later date. That said, on the material before me I am satisfied that the Applicant’s termination took effect on 31 January 2024. The termination letter clearly and unambiguously states that the Respondent “made the decision to terminate your employment effective immediately. This means your last day of employment will be today, 31 January 2024”. In my view the termination letter clearly stipulates the date when the termination is to take effect. That the termination letter states “you will be paid in lieu of notice of termination, any salary and accrued but untaken annual leave as at 31 January 2024” but does not specify the amount or that payment was not made until on or about 16 February 2024 does not, in the circumstances before me alter my conclusion that the termination took effect on 31 January 2024.
[16] I see nothing in the material before me to suggest the Respondent intended that the employment relationship with the Applicant should continue beyond 31 January 2024 until 16 February 2024. There is no contest that the Applicant did not perform any work beyond 31 January 2024. It is apparent that the Respondent was requesting the immediate return of property. I find that the payment made to the Applicant in lieu of notice did not have the effect of extending her employment until 16 February 2024.
[17] Further, the Applicant gives evidence that she did not instruct her legal representatives to make an unfair dismissal claim with the Commission. On the material before me, I do not accept the Applicant’s contention that her termination date was unclear on account of family law proceedings. I find that it was plainly and unambiguously communicated to the Applicant by email on 31 January 2024 that her termination was effective 31 January 2024.
[18] In coming to my conclusion, I have considered the entire factual matrix before me. It is not in contest that the Applicant had engaged employment/IR and family law lawyers to deal with the matters generally. The Applicant’s employment/IR legal representatives clearly acknowledged receipt of the dismissal letter on 1 February 2024 and noted that their client was “taking legal advice and will reply within seven days”. Further, as early as 18 January 2024, her employment/IR lawyer foreshadowed the making of a UD application it is apparent from the material reproduced above that her lawyers were alive to the issue of her impending termination prior to 31 January 2024. The Applicant gave evidence she did not instruct her legal representatives to file a UD application. I note there is no suggestion before me that the Applicant’s employment/IR lawyers or her family lawyers were acting outside the scope of her instructions nor has there been an allegation of representative error.
[19] One other matter is worth addressing. In evidence before me is a payslip and a leave transactions document produced by the Applicant which received by her on 27 February 2024. The payslip states it is for the period 5 February 2024 – 11 February 2024, and that payment of the Applicant’s remaining balance of annual leave and pay in lieu of notice was made on 16 February 2024. I note that this is inconsistent with the letter of 16 February 2024 from Hall and Wilcox to the Applicant which states that the Applicant’s remaining annual leave balance is to be paid in instalments on 23 February 2024 and 1 March 2024. The payments recorded in the payslip are for the Applicant’s payment in lieu of notice and her remaining balance of annual leave accrued up until the week ending 4 February 2024. There is no employment contract before me in evidence and the amount paid in lieu of notice equates to four weeks[5] in accordance with the amount specified in the 16 February 2024 letter and the National Employment Standards.[6]
[20] I have found that 31 January 2024 is the date the dismissal took effect, and the application was therefore lodged 16 days out of time. As the application was made outside of the 21 day statutory timeframe, the Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
Exceptional circumstances
[21] The Act allows the Commission to extend the period within which a UD 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.[7] 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.[8]
[22] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 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.
[23] 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.
[24] 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 consider these matters in the context of the Application.
Reason for the delay
[25] The delay required to be considered in section 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.[9] 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.[10]
[26] 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.[11]
[27] The Applicant proffers the following reasons for the delay:
·Her termination was in dispute and was subject to pending interim orders with regards to a family law matter simultaneously initiated by the Respondent on 12 January 2024.
·Her termination was not confirmed until 28 February 2024 in the Family Court.by Senior Judicial Registrar Sudholz as part of her family law proceedings.
·Her termination date was unclear. It was not outlined when her payment in lieu of notice with respect to her termination would be received until 16 February 2024, and no payslips were received until 27 February 2024.
·She did not receive her final entitlements from the Respondent. She was advised that final payment would occur in instalments with the final payment to be made on 1 March 2024, however has not received payment despite a letter being provided by the Respondent’s lawyers on 16 February 2024 confirming the payment schedule, and a “fraudulent” payslip being provided by the Respondent on 27 February 2024.
[28] The Respondent submits that the family law proceedings are ‘irrelevant’, as the Family Court does not have the power to determine whether the Applicant’s employment was terminated. Further, the Respondent submits that the Applicant’s employment was terminated on 31 January 2024 with immediate effect, and that any dispute over the Applicant’s final pay is not relevant to determining the date on which her employment with the Respondent was terminated.
[29] The Respondent submits that the Applicant was or ought to have been aware of her rights with respect to bringing the UD application for the following reasons:
·On 15 January 2024, the Applicant sent an email to the Director of the Respondent stating, “her employment rights are being compromised”.
·On 17 January 2024, the Respondent sent the Applicant a show cause letter outlining the allegations of misconduct made against her, providing the Applicant an opportunity to respond and putting her on notice that her employment was a risk of termination. The show cause letter was sent to the Applicant via her representatives specialising in employment law.
·On 18 January 2024, the Applicant’s employment law legal representatives sent a response to the show cause letter to the Respondent’s legal representatives. In the section labelled “our client’s position”, the Applicant’s legal representatives wrote “our instructions raised issues of potential unfair dismissal if your client decides to terminate”.
·On 31 January 2024, the termination letter was sent to the Applicant via her employment law legal representatives who continued to hold instructions to act at that time.
·On 1 February 2024, the Applicant’s employment law legal representatives acknowledged receipt of the termination letter and advised that their client was taking legal advice in relation to the termination letter.
·On 1 February 2024, the Respondent’s representatives sent the Applicant’s representatives an email requesting notification of whether the Applicant could comply with the direction to return all company property contained in the termination letter.
·On 7 February 2024, the Applicant’s family lawyer wrote to Mr Attili’s family lawyer putting Mr Attili on notice that the Applicant would seek interim orders of the Family Court that Mr Attili ‘immediately desist from taking any further steps to effect our client’s termination from the business’.
·On 12 February 2024, the Applicant sent an email to the Respondent’s accounts team notifying that she had spoken to the Fair Work Ombudsman and alleging that her “employment entitlements have been used without her consent and without cause or agreement”. The email requested “this to be rectified by 2.00pm, tomorrow 13 February 2024 with a new payslip provided.”
·On 13 February 2024, the Applicant sent an email to the Respondent’s accounts team noting that she had not received a response to the above email. This email threatened that she would “have no choice but to initiate Fair Work proceedings with the ombudsman to ensure my employment rights and entitlements are upheld with regards to this matter”.
·On 15 February 2024, the Respondent’s representatives sent the Applicant an email extending the timeframe during which the Applicant could return the Respondent’s property and requesting that the Applicant return the Respondent’s property.
·On 16 February 2024, the Respondent’s representatives sent the Applicant an email further extending the timeframe during which the Applicant could return the Respondent’s property and requesting that the Applicant return the Respondent’s property.
·On 6 March 2024, the Applicant contacted the Respondent seeking information regarding her final pay.
[30] It is apparent that the Applicant was engaged both employment and family law representatives from at least mid-January 2024. As I have found above, I do not accept the suggestion that the family law proceedings have the power to determine the Applicant’s effective date of termination.
[31] I have carefully reviewed the exchange of correspondence between the Applicant’s legal representatives and the Respondent’s legal representatives in evidence before me. I have found that the 31 January 2024 correspondence was unambiguous as to the date the termination was to take effect. I do not accept the assertion that ambiguity as to the amount of the payment in lieu of notice or that the payment was made on 16 February 2024 alters my finding. There is no suggestion by the Applicant that her legal representatives acted outside the scope of her instructions nor has there been a claim of representative error. There is no credible reason for the Applicant’s failure to lodge a UD application.
[32] I do not consider the matters relied on by the Applicant, individually or together, an acceptable or reasonable explanation for the delay in filing her application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect.
[33] I have found above that the Applicant became aware of her dismissal on 31 January 2024.
[34] Having made a finding that the Applicant was notified of the dismissal on 31 January 2024 and that it took effect immediately, I find that the Applicant had the benefit of the full period of 21 days to lodge her application. This is a neutral consideration.
Action taken to dispute the dismissal.
[35] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[12]
[36] The Applicant submits she took action to dispute the dismissal through sending a letter via her family law representatives seeking interim orders regarding the dismissal and requesting that the Respondent cease from taking steps to effect her dismissal on 7 February 2024 and 13 February 2024.
[37] The Respondent submits that none of the conduct set out in the Applicant’s submissions demonstrate that she disputed the dismissal as contemplated by s394(3)(c) which requires action such as lodging a claim in the wrong jurisdiction.
[38] I am satisfied the Applicant took action to dispute her dismissal through taking steps to seek legal advice and dispute her dismissal through her family law legal representatives. This factor weighs in favour of the granting of an extension of time.
Prejudice to the employer.
[39] Prejudice to the employer will go against a granting of an extension of time.[13]
[40] The Applicant submits that no prejudice would be experienced by the Respondent if an extension of time was granted.
[41] The Respondent submits it has had to commit time and resources including the cost of external legal counsel to deal with allegations of misconduct and serious misconduct against the Applicant, the termination of the Applicant’s employment, and the Applicant’s claims since January 2024.
[42] I cannot identify any 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.
[43] The Respondent submits the Applicant was dismissed due to serious misconduct in directing an employee to download payslips without authorisation, accessing company finances and information, using another employee’s credentials to sign into Xero, and viewing the Respondent’s financial data, bank details, payslips, company bank transactions, and other sensitive information.
[44] The Applicant submits that she was unfairly dismissed as she denies the reason relied on by the Respondent for her termination and she was not afforded procedural fairness.
[45] 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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would 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 do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[46] 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.
[47] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[48] Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. Some of the factors I am required to consider are neutral and I have found that the Applicant took some steps to dispute her dismissal. There is no acceptable or reasonable explanation for the delay in filing the application. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Ms Beltsos-Russo, the Applicant.
Mr Attili, the Respondent.
Hearing details:
2024
17 AprilMicrosoft Teams.
[1] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496, Mihajlovic v Lifeline MacArthur[2013] FWC 9804.
[2] Metropolitan Fire and Emergency Services Board v. Duggan[2017] FWCFB 4878 at [32].
[3] [2017] FWC 2993 at [37]-[40].
[4] [2023] FWCFB 133.
[5] $9230.76 was paid to the Applicant. This equates to four weeks of the Applicant’s annual salary of $120,000.
[6] The Applicant’s service (if she was not summarily dismissed) would equate to three weeks’ pay in lieu of notice under s.117(3)(a) of the Act plus an additional week under s.117(3)(b) on account of her age and service.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[8] Ibid.
[9] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[10] 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].
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[13] Ibid.
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