Farnoush Yousefi v Telstra Limited
[2024] FWC 3568
•20 DECEMBER 2024
| [2024] FWC 3568 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Farnoush Yousefi
v
Telstra Limited
(U2024/12395)
| COMMISSIONER SPENCER | BRISBANE, 20 DECEMBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – out of time – extension not granted – application dismissed.
Ms Farnoush Yousefi (Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Yousefi lodged her application against Telstra Limited (Respondent) on 17 October 2024.
The Applicant was employed by the Telstra Purple from 11 November 2019 and then Telstra Corporation Limited from 17 June 2022. The Applicant was later transferred to the Respondent on 23 November 2023 and was employed until 19 September 2024 when her job was made redundant. The application was filed 7 days beyond the 21-day time limit. The Respondent submitted that the application should be dismissed, a jurisdictional objection pursuant to s. 394(2)(a) that the application was filed late, and the Applicant sought an extension of time in order that the application for unfair dismissal is accepted.
Directions and Legislation
Directions were set for the provision of submissions. The Directions included the relevant legislation for the consideration of this matter as set out in s.394.
“394 Application for Unfair Dismissal Remedy
...
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).’
(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.”
Further the threshold test of ‘exceptional circumstances’ in relation to the reasons for the delays, must be met, the definition, as set out below was provided to parties in the issued Directions:
Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]
Background
The Applicant was employed by the Respondent as a Financial Analyst at Band 3i classification. In her employment, the Applicant reported into the Financial Management Chapter (FMCA) of Telstrax. The Applicant’s employed role was focused on billing and process improvements.
A decision had been made to reduce the number of Band 3i roles in the FMC from 110 roles to 93 (this involved the reduction of 11 roles and closing 6 vacant roles). The Respondent’s stated reason for this was due to the reduction in demand for work in areas of Cost, Capital and Productivity management, Transformation and Margin Management. The Respondent submitted that in accordance with the Telstra Limited Enterprise Agreement 2022-2024, the FMCA Chapter advised impacted employees (including the Applicant) on 7 August 2024 that the Respondent would conduct a selection within the group of 110 impacted employees by way of a ‘Group Selection Process’.
The ‘Group Selection Process’ involved a desk top assessment of impacted employees’ performance and capabilities. This involved the Leaders ranking impacted employees based on skills and capability in each of the 5 selection criteria, these included a) Demonstrating the Respondent’s behaviours and habit, b) Business Outcomes, c) Financial and Commercial Acumen, d) Financial and Commercial Acumen, e) Adopting New Ways of working and embracing change and f) Stakeholder Management/Collaboration.
The Respondent stated that through the ‘Group Selection Process’, the Applicant was assessed as less qualified, skilled and/or experienced than her peers in the criteria of Finance and Commercial Acumen and Stakeholder Management. The Respondent stated this process did not mean the Applicant was underperforming. The Respondent stated that while the Applicant’s skills and experience in billing were valued, the Applicant’s skill and capability was ranked at the lower end of the Band 3i Group. The Respondent stated the Applicant was notified of selection for redundancy on 23 August 2024 and from 23 August 2024 to 19 September 2024 the ‘placement period’, the Respondent attempted to redeploy the Applicant. However, the Applicant was not able to be redeployed. The Respondent denies the newly advertised roles were the same as the role the Applicant held, as these new roles required core finance skills and experience, which made them substantially different to the role the Applicant performed. The Respondent stated the Applicant was not redeployed to the four vacant Band 3i Financial Analyst roles due to a hiring freeze that had been imposed while the organisation review was undertaken. Also, these four roles were filled by other redeployees who had stronger skills and capabilities than the Applicant to perform the role successfully.
The Respondent stated that the end of the ‘placement period’ on 19 September 2024, the Applicant was issued a retrenchment notice confirming that Applicant’s employment had come to an end. The Applicant received a severance payment of $31,500, equivalent to 13 weeks’ pay.
The Applicant stated that the redundancy was not genuine and the dismissal was unfair. The Applicant stated that after being informed of the potential redundancy, the same job the Applicant held within the same team was advertised internally. The Applicant applied for that role as she stated she had been advised by the Respondent to apply for other positions within the company in the event of redundancy. The Applicant stated she received an email from the Respondent regarding her application advising that her Job Application would not be considered as the Applicant was already employed within that same role within the business. The Applicant further stated a few days before the date the job was made redundant her manager asked her to hand over her tasks to a new team member.
The Applicant stated that the low annual performance rating was a significant factor in her selection for redundancy. The Applicant stated the annual performance rating was unfair and inaccurate, including that this rating did not align with the feedback the Applicant received. The Applicant stated at the time of the redundancy decision making process, she had a rating of 2 out of 5. The Applicant stated these performance ratings are one metric that was used by the Respondent when assessing candidates for redundancy. The Applicant stated that after contesting the rating with the Respondent’s Human Resources and being reviewed by an independent reviewer, her annual performance rating was adjusted to 3 out of 5.
The Applicant made an application seeking relief from unfair dismissal pursuant to s.394 on 17 October 2024. Directions were set for the filing of evidence and submissions on the extension of time.
The Respondent filed a Form F3 Employer response with the Fair Work Commission on 5 November 2024, raising a jurisdictional objection pursuant to s.394(2)(a) that the application was filed late.
On 11 November 2024 the Applicant provided a response to the Chambers of Deputy President Easton, setting out her reasons as to why there were exceptional circumstances in relation to filing her application out of time. The Applicant set out that the delay in filing her application was due to the lack of timely legal advice.
The matter was further allocated to my Chambers on 18 November 2024. That same day my Chambers issued Directions to the parties and a Notice of Listing, listing the matter for a determinative conference/hearing on 27 November 2024.
A determinative conference was conducted at which the parties were heard on the extension of time application.
Consideration
In order for the jurisdiction to be established for the Commissioner to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time, (accommodating the delay with filing) to accept the application, the Commission must be satisfied that exceptional circumstances exist. s.394 (3) [Extended Time Limit] stated:
“ (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.”
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be ‘exceptional’, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] 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 can be considered exceptional.[6]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[7] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”[8]
(original emphasis)
s.394 (3) Criteria
The following statutory criteria are to be considered in the application for the extension of time:
(3)(a) Reasons for the delay
On 19 September 2024, the Applicant was provided a retrenchment notice confirming that the Applicant’s employment had come to an end. The Applicant stated she attempted to obtain legal advice from the Fair Work’s Workplace Advisory Service (WAS) before submitting her application which caused a delay in filing the application and that she encountered system issues that prevented her from logging into her account. The Applicant stated she requested legal advice on 24 September 2024 and that she received an email from WAS on 1 October 2024 stating the WAS would contact her within 14 days. The Applicant stated that she missed an initial call from an unrecognised mobile number on 7 October 2024, which was a public holiday. The Applicant stated that she received a second call from WAS on 9 October 2024 who put her on hold to take another call and promised to call her back shortly. However, the Applicant stated she did not receive a call back from WAS for the rest of the day. On 10 October 2024 at around 6:50pm, the Applicant received another call which she states she missed due to the unexpected timing of the call (after hours) and it was from an unrecognized mobile number. On 14 October 2024, the Applicant called WAS to follow up with the same person who did not her call her back on 9 October 2024 he informed her that they could not provide legal advice because the deadline to file an unfair dismissal application had passed on 10 October 2024.
It should be noted that the 1 October 2024 WAS email to the Applicant included the following wording:
“A request for legal help from the Workplace Advice Service is not an application to the Commission. Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.”
(emphasis added)
The Applicant was in possession of the core facts regarding her Application for Unfair dismissal from her redundancy date on 19 September 2024 and nothing had changed by the 21 day deadline on 10 October 2024. The Applicant as per the email could have completed the application based on her factual knowledge.
In terms of the summary of the Reasons for the Delay, the Applicant confirmed the sequence of events relating to seeking the WAS advice. She emphasised that the redundancy selection was improperly undertaken.
The unfair dismissal application was filed on 17 October 2024. It was filed 7 days after the 21-day legislative time limit, as required by s. 394(2)(a). The Respondent filed a jurisdictional objection in relation to the late filing of this application by the Applicant.
This factor weighs against the grant of an extension of time to the Applicant.
(3)(b) Delay in being made aware of the dismissal
The Applicant did not experience any delay in the notification of the redundancy. She was aware of the dismissal on and prior to the date it took effect. She had had been advised at an early stage of the redundancy process.
This factor weighs against the grant of an extension of time to the Applicant.
(3)(c) Action taken to dispute the dismissal
The Respondent stated that the Applicant did not avail herself of clause 46 of the EA or Telstra’s Redundancy Appeals and Review Period Process to challenge the redundancy decision. The appeals process is made available to all employees impacted by redundancy outcomes. The Applicant did not dispute the dismissal in discussions with her managers. She raised concerns about the ratings relevant to the redundancy process and issues with her er application for an alternative ROLE, her handing over of her work and her performance rating for the financial year just completed. However, those concerns were not put in the form of a formal complaint and there was no promise of an ongoing investigation or outcome that caused or contributed to delay. The Applicant was on notice from the WAS email of the time limit to file the application.
This factor weighs against the grant of an extension of time to the Applicant.
(3)(d) Prejudice to the employer
The Respondent stated there was no prejudice caused to them by the delay. However, they also stated that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.
I consider this to be a neutral consideration.
(3)(e) Merits of the application
The Respondent submitted that the Applicant’s job was redundant as a result of the process undertaken. The Applicant’s main argument was that that she questioned the genuineness of the redundancy and stated the unrevised annual performance rating formed part of the reason for her selection for redundancy.In the decision of Telstra-Network Technology Group v Kornicki,[9] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit.”
Significant evidence on the merits of an application is rarely called at an extension of time hearing. The Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.’[10] The Applicant argued that the merits of the application more generally require scrutiny and should include consideration of the circumstances of the dismissal, including whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise or that of an associated entity. If an extension of time were granted and the matter proceeded these matters maybe examined. However, these were no significant impediments to the Applicant filing the application.
I consider the merits at this stage to be a neutral consideration.
(3)(f) Fairness between the person and other persons in a similar position
The Respondent stated that there were other employees employed by the Respondent and affected by the same issue, who filled in the applications in time. There were four other applications filed out of the same restructure and while one was a general protections matter, similar facts were alleged. The Respondent stated that one of the other unfair dismissal applications made a jurisdictional objection on the basis of it being out of time and that matter would also be heard.
I consider this to be a neutral consideration.
Conclusion
I have weighed each of the factors I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 7 days.
Accordingly, pursuant to s.394(3), the circumstances of the delay, were not circumstances considered to be ‘exceptional’. The discretion to extend the time limit is, therefore not exercised to grant a further period to accept the application.
I Order accordingly.
COMMISSIONER
Appearances:
F Yousefi, Applicant
R Lenegan, of the Respondent
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].
[2] Ibid 10 [26].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38] (‘Stogiannidis’).
[4] (2011) 203 IR 1, 6 [15].
[5] Ibid 5 [13].
[6] Ibid 5–6 [13].
[7] Stogiannidis (n 3) [38].
[8] (2018) 273 IR 156, 165 [38].
[9] (1997) 140 IR 1.
[10] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]–[38].
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