Grace Kathleen Raymond v JSL Media Pty Ltd
[2022] FWC 2570
•30 SEPTEMBER 2022
| [2022] FWC 2570 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Grace Kathleen Raymond
v
JSL Media Pty Ltd
(U2022/8581)
| DEPUTY PRESIDENT DEAN | CANBERRA, 30 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
On 22 August 2022 Ms Grace Kathleen Raymond (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy.
With the consent of the parties, I have amended the application pursuant to s.586 of the Act to correct the name of the Respondent from JSLmedia to JSL Media Pty Ltd (the Respondent).
Section 394(2) of the Act provides 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). It is not in dispute that the Applicant was notified of her dismissal on 22 March 2022 and her last day of work was 8 April 2022. The Applicant filed her application some 115 days outside the 21 day time period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 28 September 2022. The Applicant appeared on her own behalf and Mr William Ward of Mills Oakley appeared for the Respondent. Oral evidence was given by the Applicant, Mr Keith Hedger (a former employee of the Respondent) and Mr Brad Evans (CEO of the Respondent).
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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 this application.
Reason for the delay
The Act does not specify what reason for the 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]
The Applicant submitted a witness statement in which she outlined the events leading up to her dismissal and the making of her application which form part of the explanation for the delay.
Briefly stated, the Applicant commenced employment with the Respondent on 30 November 2020 as a Digital Marketing Strategist. According to her, she ‘lost a few clients’ in early 2022 for reasons outside of her control. She attended a meeting with Mr Evans on 22 March 2022 during which issues around her performance were raised, and the Applicant expressed that she was unable to secure new businesses without the necessary ‘tools’. She said she was told by Mr Evans that he was struggling financially so she agreed that she would resign but would need proper time to find another position. Hours after this meeting, she received an email from Mr Evans advising that her employment was terminated effective 8 April 2022.
The Applicant said that she was ‘not happy’ and ‘quite annoyed’ on receiving the notice of dismissal but decided to ‘let this situation go’ as she considered Mr Evans a friend and did not want to see his business go under if he was struggling financially.
The Applicant said that on 8 August 2022 she was contacted by Mr Hedger who was employed by the Respondent after she left. It was after she became aware that Mr Hedger had been dismissed in similar circumstances to hers that the Applicant decided to lodge the unfair dismissal application. The Applicant stated that she felt Mr Evans had not acted fairly and that he “was not struggling financially like he had stated and that this whole thing was a manipulation tactic to get rid of people quickly by ‘guilting’ employees”.
The Applicant submitted that she would have acted sooner had she known that she was ‘lied to’ and ‘manipulated’. Other matters advanced by the Applicant as reasons for the delay include:
· She was originally from Queensland and it was her understanding that she had 3 months or more to lodge a complaint for unfair dismissal.
· Her personal circumstances arising from the dismissal: she was out of work for almost 3 months, left with a large debt and having to pay for childcare and having to attend a lot of job interviews; and that she was suffering from anxiety and depression as a result of the dismissal.
In response, the Respondent submitted that there are no exceptional circumstances in this case justifying an extension of time. The Respondent contended that the Applicant’s misapprehension that she could make a claim 3 months or more after the date of termination if she were in Queensland is an entirely insufficient argument, arguing that it is well established that mere ignore of the law and the statutory time limit of 21 days is not itself an exceptional circumstance.
The Respondent submitted that the Applicant simply changed her mind about how she regarded her dismissal following discussions with Mr Hedger and intended to use the unfair dismissal provisions to agitate her broader concerns. These reasons, the Respondent argued, are clearly not exceptional.
Having considered the evidence and submissions, I am not satisfied that the Applicant has provided an acceptable reason for the whole period of the delay in making her application.
It is not uncommon for employees to experience stress, shock or confusion when their employment is terminated. This does not generally provide an acceptable explanation for making an unfair dismissal application outside the 21 day statutory timeframe. Nor is ignorance of the law generally considered an acceptable reason for delay. There is nothing else in the Applicant’s evidence which would support a conclusion that there is an acceptable reason for the whole of the delay.
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
The Applicant was notified on 22 March 2022 of her dismissal which was to take effect on 8 April 2022. The Applicant therefore had the full 21 day period to lodge her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is clear on the evidence that the Applicant did not take any action to dispute the cessation of her employment until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Respondent submitted that the long delay in this matter gives rise to a general presumption of prejudice to it if an extension is granted. It was submitted that a significant time has passed since the dismissal and the lengthy delay unreasonably burdens that Respondent to consider events and recall matters which occurred many months ago.
The Applicant made no submissions as to any prejudice to the Respondent.
I accept the delay is a lengthy one. However, in the absence of any evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
Based on the evidence before the Commission, it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case 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
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.
The Applicant contended that Mr Hedger was in a similar position to her, however it does not appear that he was treated differently to her. Therefore, I find this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
G Raymond on her own behalf.
W Ward of Mills Oakley for the Respondent.
Hearing details:
2022.
By telephone:
September 28.
[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].
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