Erin Walker v Northeast Health Wangaratta
[2021] FWC 6099
•11 OCTOBER 2021
| [2021] FWC 6099 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Erin Walker
v
Northeast Health Wangaratta
(U2021/7274)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 11 OCTOBER 2021 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
[1] This decision concerns an application by Ms Erin Walker (Ms Walker) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
[2] I have determined that the application was filed outside the statutory timeframe and, taking into account the matters at s.394(3), am not satisfied that the circumstances (when considered individually or together) are exceptional. Accordingly, the application is dismissed. The reasons for this decision follow.
Context
[3] The application was made on 16 August 2021. By the information provided in the application, it was identified as filed after the expiry of the statutory time for lodgement and the Commission wrote to the parties about this on 25 August 2021.
[4] On 2 September 2021, Northeast Health Wangaratta (Respondent) filed a response in which it opposed an extension of the time for filing and also objected because it said Ms Walker was not dismissed (but rather, had voluntarily resigned her employment).
[5] The matter was then listed for case management conference. Ms Walker did not provide her telephone number as directed or otherwise communicate with the Commission in advance. At 9.00am on 3 September 2021, attempts were made to contact Ms Walker but she was not able to be reached and messages were left requesting her to contact the Commission.
[6] On 6 September 2021, email correspondence was sent to Ms Walker at her nominated email address for service regarding her non-attendance at the case management conference and failure to respond to the Commission’s attempts to contact her. That email included:
• a direction that, if Ms Walker wished to proceed with the application, then she would need to explain the reasons for her non-attendance with evidence (if any) in support by no later than 10.00am on 8 September 2021; and
• an important note that failure to comply and/or if the Commission did not hear otherwise by the directed time, would mean that the application may be taken to be no longer pursued or determined on the materials before the Commission.
[7] On 7 September 2021, Ms Walker responded by email in which she said the reason for her non-attendance on 3 September 2021 was “due to work commitments”. She confirmed that she would still like to proceed with the claim.
[8] On 9 September 2021, the Respondent’s representative responded by email in which it applied for the application to be dismissed pursuant to ss.399A and 587 of the Act. It contended this to be an appropriate course due to Ms Walker’s failure to attend the case management conference without “compelling reason” (it noted there was no evidence provided in support of the reason given and no explanation for why an adjournment request was not made) and because the claim had no reasonable prospects of success given the jurisdictional objections.
[9] As I considered it premature to dismiss the application, Ms Walker was directed to file evidence in support of her reason for non-attendance on 3 September 2021 and listed the matter for further case management conference at 10.00am on 23 September 2021. That email, and the notice of listing, respectively included an important note that failure to attend may result in the matter being dismissed without hearing further from you.
[10] On 22 September 2021, Ms Walker filed a payslip as evidence of having worked on 3 September 2021.
[11] On 23 September 2201, Ms Walker, the Respondent and its representative attended a case management conference at which the program for determination of the jurisdictional objections was discussed. Ms Walker did not oppose the Company’s request to be represented, which was granted pursuant to s.596 of the Act. During the proceedings, the parties confirmed their agreement that Ms Walker’s alleged dismissal was effective on 25 June 2021 and that the question of whether to extend the time for filing be determined first (with the other jurisdictional objection being determined only if an extension of the time for filing was granted). An email was sent to the parties on 27 September 2021, attaching written directions, along with links to guidance materials to assist the parties. Those directions included:
• a direction that Ms Walker file with the Commission and serve on the Company an outline of submissions, witness statement(s) and any other materials on which she sought to rely as to the matters at s.394(3) of the Act;
• that the hearing would take place at 10.00am on 7 October 2021 and, to accommodate Ms Walker’s uncertainty about her work roster, that any request from the parties to change the hearing date must be made on or before 30 September 2021, with substantive reason(s) and evidence in support; and
• an important note that failure to comply with the directions and/or attend the hearing may result in the application being dismissed or determined on whatever materials are before the Commission without hearing further from the parties.
[12] The following materials were filed in advance of the hearing:
• by Ms Walker: an unsigned document that Ms Walker’s cover email described as a “letter” addressing her dismissal, in which she briefly addressed each of the criteria at s.394(3), with various documents attached and a cover note “I have attempted this as a lay person and know you will understand this”; and
• on behalf of the Respondent: an outline of submissions, a witness statement of a Ms George Howe (Acting Executive Director Workforce Operations, with oversight of all human resources operations of the Respondent) signed 5 October 2021 with 9 documents attached.
[13] No adjournment request was received by 30 September 2021 or indeed prior to the hearing.
[14] At 10.00am on 7 October 2021, the Respondent and its representative attended the hearing but Ms Walker did not attend and attempts to contact her by telephone were unsuccessful. As I was satisfied that Ms Walker was aware of the hearing and on notice of the consequences of her failure to attend and having regard also to the prejudice that would otherwise be occasioned on the Respondent, I determined it appropriate to proceed. The Respondent’s request to be represented was granted pursuant to s.596 of the Act. The Respondent requested that the matter be determined on the materials before the Commission and, as I am satisfied this is an appropriate case, allowed this request and do so accordingly.
When did the dismissal take effect?
[15] Ms Walker’s employment came to an end on 25 June 2021. The unfair dismissal application was lodged on 16 August 2021.
[16] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 16 July 2021. The application was therefore filed 31 days outside the 21 day period.
The ‘exceptional circumstances’ test
[17] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2
[18] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[19] 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.
[20] 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
[21] 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. 3
[22] Ms Walker explained the reason for her delay was because she did not know she was terminated. 4 She said she did not receive notice of her dismissal until the “certificate of service” was received by post on 3 August 2021.5 A certificate of service was filed, dated 29 July 2021 and certified that Ms Walker had worked as a part time employee of the Respondent from 3 May 2016 until 25 June 2021.6
[23] Ms Walker also said that she did not resign but was happy to have continued working in a casual capacity and had not received any indication from the Respondent that this was not possible. 7 She attached an email exchange dated 16 to 19 July 2021 which she described as having been sent to the Respondent “by way of complaint and in an effort to completely rescind my resignation of part time to casual and go back to my permanent part time hours as contract”.8
[24] The Respondent’s evidence included a letter dated 27 May 2021 which appears on its face to have been signed by Ms Walker. 9 That letter said:
“Dear Clare,
It is with a very heavy heart that I resign my permanent part time position in the maternity ward at Northeast Health. I would like to remain as a casual if work days come up and you need a fill in.
Thank you
Kind regards,
Erin Walker”
[25] The Respondent’s evidence was that it had not accepted Ms Walker’s request to continue as a casual employee and has no record of any variation request being offered to Ms Walker. 10 It rejected any suggestion that it did not respond to Ms Walker’s communications after 27 May 2021 or to having deliberately delayed responding until after the 21 day timeframe had expired.11 Ms Howe’s evidence attached an exchange between Ms Walker and the Respondent’s payroll team dated 7 to 8 July 2021.12 That exchange commences by Ms Walker requesting payment of her leave entitlements as she had resigned. By the email response of 16 July 2021, the Respondent’s payroll confirmed the resignation would be processed in the upcoming pay period and a final payslip was sent to Ms Walker on 20 July 2021.13
[26] It is acknowledged that Ms Walker was not represented. However, she was provided with reasonable assistance of the Commission in pursuit of her case and yet did not follow the Commission’s directions and did not attend the hearing. Taking the materials filed by Ms Walker at their highest, Ms Walker had resigned her part time employment with the Respondent on the expectation that she would come to secure casual employment thereafter. However an inspection of the documents before the Commission plainly reveals that, by her own correspondence of 27 May 2021, Ms Walker intended to end her permanent part time position and appreciated that future casual work was not guaranteed. On 7 July 2021, Ms Walker requested to be paid out entitlements accrued in that part time role on account of her self-described resignation. It is not until 16 July 2021 that Ms Walker corresponded with the Respondent regarding the “confusion as to (her) resignation” and on 19 July 2021 formally sought to “rescind” her resignation from part time employment.
[27] Regardless of the circumstances by which Ms Walker penned the 27 May 2021 letter (about which I make no finding), when regard is had to her own subsequent communications of 7, 8, 16 and 19 July 2021, the suggestion that Ms Walker did not know that her part time employment had ended until 3 August 2021 lacks credibility. Accepting Ms Walker had indicated her interest in (and might have held some hope for) casual employment opportunities in the future it is simply not plausible to suggest that Ms Walker thought this of itself would create an ongoing employment relationship – indeed, she had requested to be paid out her entitlements on 7 July 2021 and, at least by 19 July 2021, she was aware that the Respondent considered her resignation from the part time position to have ended her employment relationship with the Respondent entirely.
[28] In any event, there is nothing before the Commission to explain Ms Walker’s delay from receipt of the certificate of service on 3 August 2021 until the application was filed on 16 August 2021.
[29] I am not satisfied that Ms Walker has an acceptable, reasonable or credible explanation for the delay and consider this weighs against a conclusion that there were exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[30] Ms Walker alleged that she first became aware of the dismissal after it had taken effect, on 3 August 2021. On the evidence before the Commission and for the above reasons, I do not accept this contention.
[31] Whilst I have concluded that on the documents alone Ms Walker must have understood as of 19 July 2021 that the employment relationship had come to an end entirely, for completeness I consider the evidence to have fallen a long way short of establishing that Ms Walker first became aware of her alleged dismissal after it took effect on 27 May 2021.
[32] In the circumstances, this factor does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal
[33] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 14 The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.15
[34] On the materials, it is apparent that Ms Walker took steps to communicate with the Respondent after her employment came to an end on 27 May 2021. By the emails of 16 and 19 July 2021, Ms Walker appeared to take issue with the Respondent’s acceptance of her resignation and certainly sought to “rescind” that resignation.
[35] This factor weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer
[36] Beyond the obvious inconvenience at a time when the Respondent contends its resources are dedicated to managing the impacts of the COVID-19 pandemic, 16 I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted.
[37] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.
Merits of the application
[38] The Act requires me to take into account the merits of the application in considering whether to extend the time for filing.
[39] The merits of the application 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.
[40] I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[41] 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.
[42] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[43] Having regard to the matters I am required to take into account under s.394(3), and all of the materials before the Commission, I am not satisfied that there are exceptional circumstances when considered individually or together. The absence of an acceptable, reasonable or credible explanation for the delay weighs strongly against a finding of exceptional circumstances, whereas the action taken to dispute the dismissal weighs only slightly in favour and the other factors are neutral. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.
[44] I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr N. Ganeson for the Respondent
Hearing details:
2021.
Melbourne (by Video).
7 October.
Printed by authority of the Commonwealth Government Printer
<PR734767>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
4 Original application at 1.5.
5 Applicant’s letter filed 29 September 2021.
6 Applicant’s letter filed 29 September 2021 at Attachment A; Witness statement of Ms Howe at Attachment GH-7.
7 Applicant’s letter filed 29 September 2021.
8 Applicant’s letter filed 29 September 2021 at Attachment E.
9 Respondent’s Response filed 2 September 2201 at Attachment R1; Witness Statement of Ms Howe at Attachment GH-1.
10 Witness statement of Ms Howe at 6.
11 Witness statement of Ms Howe at 15-16.
12 Witness statement of Ms Howe at Attachments GH-2 and GH-3.
13 Witness statement of Ms Howe at Attachment GH-9.
14 Wilson v Woolworths[2010] FWA 2480 at [19]-[21].
15 Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.
16 Respondent’s Submissions at 38-40.
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