Eileen Carroll v P & E Real Estate Pty Ltd T/A Glebe Point Road Real Estate

[2020] FWC 3253

[2020] FWC 3253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Eileen Carroll
v
P & E Real Estate Pty Ltd T/A Glebe Point Road Real Estate
(U2020/2713)

COMMISSIONER CAMBRIDGE SYDNEY, 25 JUNE 2020

Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Eileen Carroll (the applicant) and the respondent employer is P & E Real Estate Pty Ltd T/A Glebe Point Road Real Estate (the employer).

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 10 March 2020. The application indicated that the date that the applicant’s dismissal took effect was 21 January 2020. Therefore, the application was made some 28 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] On 24 March 2020, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, made on 10 March 2020, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).

[4] Conciliation of the matter that had been listed for 28 April 2020, did not proceed because the employer requested that the out of time objection be determined as a discrete initial matter. On 5 May 2020, Catanzariti VP sent a letter to the applicant which, in summary, required that the applicant provide documentary material upon which exceptional circumstances could be established in order to permit the matter to proceed over the out of time objection raised by the employer.

[5] On 11 May 2020, the applicant provided the Commission with an Outline of Submissions document together with her Statement of Evidence. The applicant provided these documents as material upon which she relied in opposition to the out of time objection, and in support of an extension of time to be granted. On 12 May 2020, the contested out of time objection to the application was allocated to the Commission as currently constituted for determination.

[6] On 18 May 2020, the Commission convened a telephone Pre-Hearing Conference during which the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the Parties’ respective positions regarding the out of time objection.

[7] In due course, the Parties filed their respective documentary materials. Further, both Parties have confirmed that they were content for the out of time objection to be determined upon the documentary material which had been filed, and without any requirement for a Hearing.

Relevant Factual Background

[8] The applicant had worked for the employer for about 4 years. The applicant was initially engaged as a full-time Real Estate Sales Manager and subsequently her position was altered to that of a part-time Rental Property Manager. The employer operates as a small business and at the time of the termination of the applicant’s employment, it had fewer than 15 employees.

[9] In August 2018, the employer altered the terms of engagement of the applicant from full-time to part-time. The initial part-time hours for the applicant were 25.5 per week. However, in April and again in November 2019, the applicant’s part-time hours were progressively reduced to 10, 6, and eventually 4 hours per week.

[10] On 15 January 2020, the applicant provided 1 week’s written notice of resignation from her employment. In accordance with this written notice of resignation, the applicant’s last day of work with the employer was 21 January 2020.

[11] On 28 January 2020, the applicant commenced alternative employment as a part-time Property Manager with another Real Estate business (the new employer). During February and early March 2020, disputation arose between the applicant and her former employer about issues surrounding the applicant’s alleged involvement with clients of the employer who had transferred their property management business to the new employer. This disputation led to the employer sending an email communication to the new employer on 6 March 2020, complaining about the alleged conduct of the applicant and advising that unspecified litigation involving the applicant was being commenced.

[12] On 9 March 2020, the new employer forwarded to the applicant the email communication of 6 March 2020 from the employer. On 10 March 2020, the day after the applicant was provided with the 6 March 2020 email communication from the employer to the new employer regarding litigation involving the applicant, the applicant filed her claim for unfair dismissal remedy which was made 28 days late.

The Applicant’s Case in Support of an Extension of Time

[13] The applicant provided initial documentary material dated 11 May 2020, in the form of a Statement of Evidence and an Outline of Submissions. In addition, the applicant provided a further Statement of Evidence in Reply, and an Outline of Submissions in Reply document, both of which were dated 29 May 2020. This material represented the applicant’s case in support of an extension of time and her opposition to the out of time objection raised by the employer.

[14] A significant amount of the material provided by the applicant involved issues relating to the circumstances surrounding her alleged constructive dismissal, and her employment more generally, as opposed to material that was directly connected with establishing exceptional circumstances in order to permit her application to proceed notwithstanding that it had been made out of time. The extent to which much of this material was relevant to establishing exceptional circumstances for the late lodgement of the application was confined to that factor regarding an elementary assessment of the merits of the application The evidentiary material provided by the applicant also traversed aspects of the post dismissal disputation that arose between herself and the employer and which included the email of 6 March 2020 from the employer to the new employer.

[15] The submissions made by the applicant referred to s. 394 of the Act, the 21 day time limit prescribed therein, and the matters that the Commission was required to take into account so that exceptional circumstances could be established in order to allow a late unfair dismissal claim to be granted an extension of time. Many of the submissions made by the applicant were interspersed with factual assertions.

[16] The submissions made by the applicant stated that following her constructive dismissal, she did not make an immediate application to the Commission, because she “… wanted to start afresh and put behind me the humiliating way in which I had been treated.” The applicant further stated that “Subsequent events, however, as set out in my Statement of Evidence and as summarised below, tipped the balance.”

[17] The subsequent events to which the applicant’s submissions referred involved the disputation that arose between her and her former employer about issues surrounding the applicant’s alleged involvement with clients of the employer who had transferred their property management business to the new employer. In particular, the applicant referred to the 6 March 2020 email from the employer to the new employer which had been forwarded to her on 9 March 2020. Following the receipt of this email, the applicant stated that she felt compelled to initiate the unfair dismissal action against the employer on the following day, 10 March 2020.

[18] Consequently, the applicant submitted that the reason for the delay in making the unfair dismissal application was the post-employment behaviour of the employer involving the disputation about the applicant’s alleged involvement with clients of the employer who had transferred their property management business to the new employer. The applicant further submitted that in the context of the pattern of the employer’s behaviour during the applicant’s employment, the post-employment behaviour of the employer constituted exceptional circumstances which justified an extension of time for the making of the unfair dismissal application.

[19] In further submissions, the applicant asserted that there would be no prejudice to the employer if the extension of time was granted. Further, the applicant submitted that she had been treated harshly and unreasonably by the employer, and that the merits of the application justified an extension of time. The applicant also submitted that the interests of justice, both to herself and to others finding themselves in similar circumstances, would be served by the Commission extending the time for lodgement of the application by four weeks.

[20] In summary, the applicant provided material which asserted that the reason for the delay with the filing of her unfair dismissal claim involved the post-dismissal behaviour of the employer. Further, the applicant asserted that there was no prejudice to the employer, and there were identifiable merits in respect to the application if it was permitted to proceed to Hearing and Determination. The applicant asserted that exceptional circumstances existed such that an extension of time for the lodgement of the claim for unfair dismissal should be granted.

The Employer's Case in Opposition to an Extension of Time

[21] The employer provided an undated and unsigned statement of Eleanor Fitzpatrick who is the proprietor and principal of the business operation of the employer. In addition, the employer provided a document entitled Respondent Reply to Exceptional Circumstances which was dated 22 May 2020.

[22] The material provided by the employer confirmed that the unfair dismissal claim was made by the applicant on 10 March 2020, in response to the email that had been sent by Ms Fitzpatrick to the new employer on 6 March 2020. However, the employer submitted that it’s post-employment behaviour including the email of 6 March 2020, had been fair and did not seek to affect the applicant’s prospects for her future. In particular, the employer stressed that it had sold its business/rent roll to a third party, and any transfer of rental management business from the employer to the new employer may lead to litigation initiated by the third party and implicate the applicant.

[23] In summary, the submissions made by the employer asserted that as the application had been made out of time, and the post-employment behaviour of the employer was fair, the applicant had failed to establish that exceptional circumstances existed. The material provided by the employer inferred that as exceptional circumstances had not been established, the Commission should not exercise the discretion to extend time.

Consideration

[24] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[25] In this case, the application was filed on 10 March 2020, which was some 28 days after the day on which the applicant’s alleged dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 14 days after the expiry of the 21 day time limit.

[26] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) of the Act is in the following terms:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[27] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[28] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[29] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[30] In this case the delay was 28 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 4 weeks in the context of a 3 week time limit could be described as a significant delay in the context of the statutorily prescribed time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[31] In this instance, the reason for the delay was asserted by the applicant to have involved the post-dismissal behaviour of the employer. It was clear that the email of 6 March 2020 sent by the employer to the new employer acted as the motivation for the application to be made. In making the application, the applicant was unambiguously reacting to the conduct of the employer which involved contact with the new employer and challenge to the post dismissal activities of the applicant in her capacity as an employee of the new employer.

[32] It is relevant to note that until the applicant became embroiled in the post dismissal disputation regarding the applicant’s alleged involvement with clients of the employer who had transferred their property management business to the new employer, the applicant raised no complaint about her alleged constructive dismissal. Indeed, in the unfair dismissal application (Form F2) the applicant stated: “I resigned in January 2020 and took some time to reflect on this situation and looked to put it in the past, which I happily did.”

[33] Further, in her Statement of Evidence the applicant said: “Although I wanted to leave this whole episode behind, Ms Fitzpatrick’s behaviour with my current employer has been too much and is what led me to make an application to the Fair Work Commission. As can be seen, I made my application the day after Ms Fitzpatrick sent her defamatory and threatening email to my current employer.”

[34] Consequently, it has been the post-dismissal activities of the employer rather than the alleged constructive dismissal which has represented the basis for the applicant’s complaint that gave rise to the making of the unfair dismissal application. The post-dismissal activities of the employer, which stimulated the making of the application, do not relate to any aspect of the alleged constructive dismissal of the applicant. These post-dismissal activities do not introduce any suggested conduct on the part of the employer which might impugn the (alleged) dismissal itself, but instead involves issues associated with clients of the employer transferring their business to the applicant’s new employer.

[35] On any reasoned and objective contemplation, the reason for the delay in making the application, namely, post-dismissal conduct of the employer which was not related to the circumstances of the alleged unfair dismissal, could not be sustained as sound, acceptable reason for delay. If some aspect of the post-dismissal conduct of the employer revealed some previously unknown basis to provide challenge to the dismissal, only then could there be some proper causation between that conduct and the late filing of an unfair dismissal claim. In simple terms, the post-dismissal conduct of the employer did not change any aspect of the circumstances of the termination of employment which the applicant had in her own words happily accepted at the time.

[36] Consequently, when the reason for the delay is carefully and objectively considered, it does not provide a sound and acceptable reason upon which to establish a link between the employer’s post-dismissal conduct and any changed circumstances regarding the termination of the applicant’s employment.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[37] The applicant first became aware of her alleged constructive dismissal on 15 January 2020, when she provided notice of her resignation from employment. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[38] The applicant did not take action to dispute her dismissal prior to making the late unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[39] There was a paucity of evidence as to the details of any prejudice. No identifiable evidence was provided to support any of the submissions that were made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.

Subsection 394 (3) (e) - The Merits of the Application

[40] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.

[41] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, there was no evidence provided which established that the unfair dismissal claim was entirely without some potential for success, or that it contained some vital flaw which would render it open to the prospects of summary disposal.

[42] There was evidence from the applicant that she was happy to resign from her employment at the time. However, the applicant’s hours of work had been progressively reduced to the point that ongoing employment would have seemed to have been untenable, and such action of the employer may represent the constructive dismissal of the applicant. These circumstances would be suggestive of potential merit of the application.

[43] On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with some identifiable prospects for success. Consequently, the logical consideration of this factor would provide limited support for the granting of an extension of time.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[44] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[45] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[46] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2and the following paragraph from that Decision is particularly helpful:

“[13] 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

Conclusion

[47] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 28 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[48] The reason for the delay has involved the post-dismissal conduct of the employer. However, the post-dismissal conduct of the employer was not connected with any aspect of the circumstances surrounding the termination of the employment. Upon careful consideration, the reason for delay could not represent a sound and acceptable reason for the application to have been made after the 21 day time limit had elapsed.

[49] The other factors under consideration, other than the merits of the application, either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. There were identifiable potential merits of the application. However, in circumstances of an alleged constructive dismissal, this factor has provided only limited support for the exercise of the discretion to extend time.

[50] Consequently, in this instance the Commission has been required to carefully evaluate and balance all of the relevant factors. In particular, in this instance there was not an acceptable reason for the delay in filing the application, but the application did have some limited, recognisable merits.

[51] On balance and having particular regard for the absence of any satisfactory reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore there could be no sound and proper justification for the Commission to exercise the discretion to extend time.

[52] An Order [PR720376] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.

COMMISSIONER

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<PR720375>

 1   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.