Heather Mary Clark v Bunbury Football Club Inc
[2024] FWC 3177
•18 NOVEMBER 2024
| [2024] FWC 3177 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Heather Mary Clark
v
Bunbury Football Club Inc
(U2024/11733)
| COMMISSIONER P RYAN | SYDNEY, 18 NOVEMBER 2024 |
Application for an unfair dismissal remedy — application filed out of time — circumstances not exceptional — application dismissed
Introduction
This decision concerns an application by Ms Heather Clark (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant states that her employment with Bunbury Football Club Inc. (Respondent) was terminated with effect from 9 or 10 August 2024. The Application was made on 30 September 2024.
Section 394(2) of the FW 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 Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 30 or 31 August 2024. The Application was therefore made at least 30 days outside the 21-day period.
Both parties filed materials in support of, or in opposition to, the application for an extension of time.
The application for an extension of time was listed to commence at 10:00am (AEDT) on 14 November 2024. Despite repeated attempts by my Chambers and the Respondent to contact the Applicant, the Applicant failed to attend the hearing. I delayed the commencement of hearing until 10:45am, but there was still no appearance by the Applicant. I then proceeded to hear the matter in the Applicant’s absence.[1]
The Respondent was represented by its President, Mr Tom Busher.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Relevant Background
The Applicant is approved as an unrestricted manager under s.102B of the Liquor Control Act 1988 (WA) and was employed by the Respondent on a casual basis to work in its bar operations.
On 6 August 2024, the Respondent’s darts team, the Bunbury Bulldogs, were hosting a darts match as part of a competition convened by the Leschenault Ladies Darts Association Inc.[2] During the match a Bunbury Bulldogs player removed some darts from the dartboard before the score could be registered.[3] This led to an altercation between the Applicant and the Respondent’s bar manager, Vanessa French who was participating in the darts match for the Bunbury Bulldogs.[4] The next day, the Applicant reported the matter by completing an incident report and notifying the Department of Racing, Gaming and Liquor, an external advisor, and the Respondent’s Darts Committee.[5]
On 8 August 2024, Ms French attempted to discuss the incident with the Applicant over the telephone. The Applicant refused to do so, preferring to discuss the matter face to face.[6]
On 9 August 2024, the Applicant attended for work. Ms French arrived a short time later and advised the Applicant that she was not required that evening. This led to an argument between the Applicant and Ms French which culminated with Ms French informing the Applicant that her services were no longer required. The Applicant was requested to hand over her keys to the Respondent’s premises.[7] During the hearing, Mr Busher confirmed that Ms French had the authority to dismiss the Applicant.
On 10 August 2024, Mr Busher telephoned the Applicant and confirmed that she could no longer work for the Respondent.[8]
Later that day, the Applicant sent correspondence to Mr Busher disputing the dismissal and requesting that she be reinstated with immediate effect.[9]
On 16 September 2024, the Applicant received a letter from Mr Busher (dated 15 September 2024) which set out the steps the Respondent has undertaken in response to the incident report. The letter also stated:
It is clear from your correspondence (that includes multiple allegations and complaints) that it isn’t tenable for you to continue in any capacity at the Bunbury Football Club.[10]
Date of Dismissal
Having regard to the background set out above, I find the effective date of dismissal was 9 August 2024. This means the Application was made 31 days outside the 21-day period.
Exceptional Circumstances
The FW 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.[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]
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.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[13]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[14]
In written materials filed by the Applicant, the Applicant stated that she was not aware of the 21-day time limit.[15] The Applicant also stated that she only received written confirmation of her dismissal on 16 September 2024 and that the Application was filed within 21 days of receiving that correspondence.[16]
To the extent the Applicant was not aware of the 21-day time limit, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[17]
Accordingly, I do not accept that a lack of knowledge of unfair dismissal laws constitutes an acceptable or reasonable explanation for the delay.
I also do not accept the Applicant making the Application within 21-days of receiving written confirmation of her dismissal is an acceptable or reasonable explanation. As I have found above, the Applicant was dismissed on 9 August 2024. The Applicant knew that and requested to be reinstated the next day. Although s.117 of the FW Act requires employers to provide employees with written notice of the day of termination, that does not apply to a casual employee. However, even if it did, a failure to comply with a requirement in s.117 does not render void or invalidate a dismissal.[18]
Reason for the delay - Conclusion
I do not accept the Applicant has provided an acceptable or reasonable explanation for the delay, whether the reasons are considered individually or collectively. In the absence of an acceptable or reasonable explanation, this circumstance 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 aware that her employment ceased on 9 August 2024. Therefore, the Applicant had the full period of 21 days to make the Application.
This factor does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[19]
In Hunter Valley Developments Pty Ltd v Cohen[20], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[21]
The Applicant took action to dispute the dismissal on 10 August 2024. This factor weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
It follows that it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. 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 under s.394(3).
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
No Appearance for the Applicant.
Mr T Busher for the Respondent
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
14 November.
[1] See s.600 of the FW Act.
[2] Hearing Book: p.49-50.
[3] Ibid.
[4] Ibid.
[5] Hearing Book: p.42-44.
[6] Hearing Book: p.5 at q2.1; p.47 at [6].
[7] Hearing Book: p.46 at [1].
[8] Ibid at [2].
[9] Hearing Book: p.64.
[10] Hearing Book: p.41.
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[12] Ibid.
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[15] Hearing Book: p.40, p.47 at [4].
[16] Hearing Book: p.47 at [4].
[17] Nulty at [14].
[18] Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481at [205]-[206]; Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 at [31]-[32].
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[20] [1984] FCA 176.
[21] Ibid at [19].
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