Elise Fotheringhame v AtWork Australia Pty Ltd
[2023] FWC 1890
•31 JULY 2023
| [2023] FWC 1890 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elise Fotheringhame
v
AtWork Australia Pty Ltd
(U2023/4138)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 31 JULY 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Elise Fotheringhame (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with atWork Australia Pty Ltd (the Respondent).
The Respondent objected to the application on the grounds that the application is out of time and further, that the Applicant was not dismissed within the meaning of the FW Act.
Before considering the objection that the Applicant was not dismissed or the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) 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.
Permission to appear
The Respondent sought to be represented in the matter and submitted that the presence of counsel would ensure the hearing would remain focussed on relevant issues and allow the jurisdictional objection to be dealt with more efficiently. The Applicant, who was initially represented but appears to have relinquished counsel some short time prior to the hearing, objected to the Respondent being represented on the basis that if she was not represented then it was unfair that the Respondent be represented.
Having considered the submissions of the Applicant and the Respondent, I determined that the Respondent should be represented as I accepted that it would assist in ensuring the hearing was conducted efficiently by being confined to relevant matters.
Witnesses
The Applicant gave evidence on her own behalf.
Mr Jon Calligeros and Ms Sam Dawson gave evidence on behalf of the Respondent.
Submissions
The Respondent filed submissions in the Commission on 5 July 2023. The Applicant was to have filed submissions in the Commission on 12 July 2023, but an extension was sought and granted and the Applicant’s submissions were then filed on 17 July 2023.
Reply submissions were filed by the Respondent on 19 July 2023.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
Evidence and Submissions
There was no disagreement between the parties as to the date on which the Applicant’s resignation had been submitted and received, being 14 April 2023. The point of contention was whether this date should be regarded as the end of her employment.
The Respondent submits that the dismissal took effect on 14 April 2023 because this was the date on which the Applicant resigned and agreed, in discussions with the Respondent’s relevant manager Ms Henry, that her employment would end immediately. Given that her period of four weeks’ notice was subsequently not worked but rather paid in lieu, the Respondent submits that the date of termination was therefore clearly 14 April 2023. The Respondent further submitted that this was all confirmed to the Applicant in a letter emailed to her on 14 April 2023.
The Applicant submits that the dismissal in fact took effect on 12 May 2023 when her four-week notice period ended. She claimed that she had not received the letter emailed to her on 14 April 2023 by the Respondent and that, in any case, the letter was somewhat confusing in its nature. The Applicant submitted that although her last day of attendance at work had been 14 April 2023, she distinguished this from her last day of employment, which she believed was 12 May 2023, when her four-week notice period ran out. Finally, the Applicant claimed that the advice provided to her by her former legal representative was that she had until 12 May 2023 to lodge as that date was the effective end of her notice period.
The Respondent’s evidence was given by Mr Jon Calligeros and Ms Sam Dawson. Ms Dawson’s evidence was confined to the issue of the letter emailed to the Applicant on 14 April 2023. While the Applicant denied receiving the email containing the letter, Mr Calligeros gave evidence that he and he alone was given special access to the Applicant’s email inbox after her termination. His evidence was that he checked the inbox and found that the relevant email had been opened, albeit that he conceded under cross examination by Ms Fotheringham that other emails from that day, received both before and after the relevant email, had not been opened.
Ms Dawson’s evidence was with respect to the emailed resignation and the subsequent conversation between the Applicant and her manager, Ms Henry. It was Ms Dawson’s evidence, which I accept, that Ms Henry was no longer employed by the Respondent. This meant that her evidence regarding the conversation between the Applicant and Ms Henry was based on a conversation that Ms Dawson had had with Ms Henry and thus may well be regarded as no more than hearsay. However, given that the contents of the letter sent by Ms Henry to the Applicant were in evidence, and that Ms Dawson’s evidence was consistent with those contents, I do not find that there is any detriment to the Respondent’s case to be found in the nature of Ms Dawson’s evidence regarding the conversation.
The Applicant’s own evidence on the conversation was that she was “let go on the spot and paid out 4 weeks’ notice”. The Applicant confirmed this under cross examination where she conceded that in the discussion between herself and Ms Henry on 14 April 2023 it was agreed that she would be “paid out and leave immediately”. The Applicant conceded that she received this payment in lieu of notice. She further conceded that, as she was working from home on 14 April 2023, she collected her relevant work equipment and drove to Osborne Park to drop off that equipment to the Respondent.
She maintained under cross examination that she had not read the letter confirming her resignation that was sent in the email of 14 April 2023, albeit that in her submissions she sought to rely upon what she said was contradictory information in that letter to advance her claim that 12 May 2023 should be considered her termination date. Nevertheless, the Applicant continued to maintain, again under cross examination, that she believed that 12 May 2023 was her termination date.
Consideration
It is agreed between the parties that the Applicant submitted her resignation on 14 April 2023. It is agreed that a conversation took place between the Applicant and Ms Henry. The Applicant concedes that she was to cease all work, return all equipment and be paid in lieu – “let go on the spot and paid out 4 weeks’ notice” as she put it. It is agreed between the parties that payment in lieu of notice was made.
It has been long held that where an employee is paid in lieu of notice, their employment ends at that point. Deputy President Cross, in Abhilash Tripathi v Globalization Partners Pty Ltd[1] citing the 1994 case of Siagian v Sanel Pty Ltd noted as follows:
“Where payment in lieu of notice is made the dismissal takes effect immediately as the employment relationship has ended.[2]”
I find that the evidence is consistent with the Respondent accepting the Applicant’s resignation and ending her employment on the same day, with an agreement that payment would be made in lieu of notice. As such, I find that the effective date on which the Applicant’s employment with the Respondent ended was 14 April 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 12 May 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[3]
As I found above, the dismissal took effect on 14 April 2023. The final day of the 21 day period was therefore 5 May 2023 and ended at midnight on that day. As I found above, the application was made on 12 May 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4] I note that although the Directions issued to parties requested that they specifically address the matters in s394(3), the Applicant chose not to do so. At the hearing, I provided her with a further opportunity to make submissions on s394(3), but she elected not to make any such submissions. As I am mindful that the Applicant was unrepresented, I will ensure that I consider such parts of the submissions she has made which may be relevant to the matters in s394(3).
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 5 May 2023. The delay is the period commencing immediately after that time until 12 May 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
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.[6]
An applicant 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 the applicant has not provided any reason for any part of the delay.[7]
Submissions and Evidence
In essence, the Applicant submitted that the delay was due to her understanding that her employment ended on 12 May 2023. She submitted that her lawyer had advised her that 12 May 2023 was her final day, based on her notice period. She also submitted that the letter from the Respondent dated 14 April 2023 was somewhat misleading in that it contained two final dates of employment, notwithstanding that she had only received in when the Respondent submitted it as evidence.
The Respondent submitted that in terms of the Applicant’s submissions on her understanding of her actual termination date, the Applicant was at best ignorant, which would not be an acceptable reason for the delay, or being disingenuous to secure jurisdiction.
Consideration
Notwithstanding the evidence of Mr Calligeros, which I found to be forthright and consistent with the investigations he made, I accept that, at the very least, the Applicant had no recollection of receiving the letter confirming her resignation. Being unaware of its contents until much later, it is clear that any ambiguity that may have been found in the contents of that letter had no impact on her thinking during the period 14 April 2023 to 12 May 2023 regarding when her employment had ended. In other words, the Applicant cannot be said to have been misled by that letter into thinking her employment may have actually ended on 12 May 2023 which then caused her to make her application late as a consequence.
I find that any notion that the Applicant had with respect to 12 May 2023 being her termination date was of her own making. While it may be difficult to reconcile the Applicant’s claim that she understood 12 May 2023 as her termination date with her concession that she understood that she was “let go on the spot and paid out 4 weeks’ notice” on 14 April 2023, I am mindful that the Applicant is unlikely to be familiar with the precedents set with regard to payment in lieu of notice.
I attach no weight to the Applicant’s submission that her lawyer told her that 12 May 2023 was her termination date, as I am unaware of the context in which this advice was given. It may well be that the incorrect advice was provided on the basis of information provided by the Applicant that was itself incorrect. I do note, however, that under cross examination, the Applicant did concede that prior to engaging the services of that lawyer – who did not subsequently represent her in this matter – the Applicant had consulted another lawyer within two weeks of her dismissal. She further conceded that at this point she was aware that she could make an application, but chose not to do so because of the costs involved in engaging the lawyer.
As such I find that the delay was due to the Applicant’s lack of understanding of the actual date of her termination and an unwillingness to incur costs that she clearly regarded as being excessive. This misunderstanding did not arise due to any action on the part of the Respondent, and I find that lack of understanding of the principles regarding payment in lieu of notice is somewhat analogous to ignorance of the 21-day time limit for filing a claim, which was found in Cheyne Leanne Nulty v Bluestar Group Pty Ltd[8] not to be an exceptional circumstance.
Having regard to the above, I find that the reason for the delay is a factor which weighs against the granting of an extension.
Did the Applicant first become aware of the dismissal after it had taken effect?
Submissions and evidence
The Applicant made no specific submissions on this matter. The Respondent submitted that for the reasons it outlined with respect to reasons for delay, the Applicant was, or should have been, aware that 14 April 2023 was her termination date.
Consideration
This matter is important in situations where an Applicant is not aware that they have been terminated until after the 21-day limit, or potentially a large part of it, has expired, thus depriving them of an opportunity to lodge within that time frame. In this case, I find that whether the Applicant thought her termination date was 14 April 2023 or 12 May 2023, she was clearly aware from 14 April 2023 that her employment was either at an end, or at best about to come to an end. As such, she was not deprived of an opportunity to lodge in time.
Having regard to my finding above, this matter is neutral in the consideration of an extension.
What action was taken by the Applicant to dispute the dismissal?
Submissions and evidence
The Applicant made no direct submissions on this matter. The Respondent submitted that the Applicant had taken no action, albeit that she had lodged a Form F2.
Consideration
As the Applicant did offer under cross examination that she had sought legal advice regarding her termination within two weeks of her final day of work, it is appropriate that I make some commentary about disputing a dismissal. Essentially, disputing the dismissal is not taken to mean simply seeking legal advice. It must involve letting the employer know that the termination will be disputed. In addressing the issue of disputing the dismissal in Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd, Deputy President Colman said:
“The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware.[9]”
In the matter of Michael Stokes v Horgans Pty Ltd T/A Horgans, a case that shares some similarities to the present matter in terms of disputing the dismissal, Commissioner Johns made the following comments:
“Mr Stokes disputed his dismissal by lodging this application, albeit late.
The action taken by the Applicant weighs against granting him a further period to make his application.[10]”
I find that the Applicant did not take any relevant steps to dispute the dismissal with the Respondent. This is a matter that weighs against the granting of an extension.
What is the prejudice to the employer (including prejudice caused by the delay)?
Submissions and evidence
The Applicant made no direct submissions on this matter. Respondent submits that it may suffer some prejudice on the basis that Ms Henry was no longer employed but that such prejudice would not be likely to be significant.
Consideration
In the circumstances I find that this matter is neutral in consideration of an extension.
What are the merits of the application?
Both parties made submissions on the merits of the case, each assessing that it had the better argument. I have examined those submissions in some detail and in addition have considered the evidence that was given by the Applicant under cross-examination.
Consideration
It was the submission of the Respondent that I ought not delve too deeply into the merits of the matter at this stage, and I am mindful of that submission. I will note, however, that the Applicant did make some concessions under cross examination that would not appear to assist her argument about particular behaviour by the Respondent that she claims forced her resignation. Notwithstanding this observation, I find that this matter is a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
Submissions
The Applicant made no submissions on this matter. The Respondent submitted that it would be unfair to those applicants who had been denied jurisdiction due to errors resulting from ignorance to allow an extension.
Consideration
The Respondent’s argument notwithstanding, I find that this matter is neutral in considering an extension.
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:
(a) the reasons for the delay, being the Applicant’s ignorance of the ramifications of payment in lieu and her unwillingness to incur what she viewed as unreasonable costs in engaging a lawyer;
(b) the Applicant being aware of the dismissal at the time that it took effect
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be properly determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[11] 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.[12]
Having regard to my findings in all of the matters set out at s.394(3) of the FW Act, and noting that two of those findings weighed against an extension and the remainder were neutral, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
E Fotheringhame, Applicant.
A Manos of Counsel for the Respondent
Hearing details:
2023.
Perth (via Microsoft Teams video):
July 20.
[1] Abhilash Tripathi v Globalization Partners Pty Ltd 2023 FWC 600 [31].
[2] Siagian v Sanel Pty Ltd [1994] TRCA 2.
[3] 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.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[8] Cheyne Leanne Nulty v Bluestar Group Pty Ltd 2011 FWAFB [14].
[9] Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd[2022] FWC 2916 [10].
[10] Michael Stokes v Horgans Pty Ltd T/A Horgans [2015] FWC 7470 [16-17]
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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