Jaime Takagaki v JB HiFi

[2021] FWC 6224

[2021] FWC 6224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaime Takagaki
v
JB HiFi
(U2021/7788)

DEPUTY PRESIDENT LAKE BRISBANE, 28 OCTOBER 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed

[1] Ms Jaime Takagaki (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by JB HiFi (the Respondent).

[2] The Applicant’s employment with the Respondent was terminated with effect from 10 August 2021. The unfair dismissal application was lodged on 1 September 2021. This is 22 days after the date of dismissal.

[3] The question before me was whether an extension of time was required and, if so, whether such an extension should be granted. A hearing was held before me via Microsoft Teams on 26 October 2021, at which the Applicant appeared on her own behalf and Mr Pei Chen appeared on behalf of the Respondent.

Date of dismissal

[4] It is uncontentious that the Applicant’s employment was terminated on 11 August 2021, effective 10 August 2021, when the Respondent sent the Applicant the following letter:

“Dear Jaime,

RE: Termination of Employment

We refer to our formal meeting on 4 August 2021 where you met with Ben Katz (store Manager) and myself.

The purpose of the meeting was to provide you the opportunity to respond to the following allegations:

•  on 17 April 2021 you used another team member’s login details to access Seibel;

•  on 17 April 2021 you fraudulently re-applied Telstra credits to your own Telstra account under another team members login;

•  the credits which were applied to your account were in-valid as they were outside the promotional period; and

•  your conduct on 17 April 2021 was a breach of the Communications Compliance Guidelines and Group Code of conduct.

Taking all relevant information into account, including your responses and admissions, we have determined the allegations as substantiated. As such, we have made the decision to terminate your employment with JB Hi-Fi for serious misconduct.

The termination of your employment took effect 10 August 2021. The company considers this to be serious misconduct warranting summary dismissal, however, have elected to pay you three weeks in lieu of notice. Any outstanding statutory entitlements will be electronically transferred to your nominated bank account.

Please contact me… should any aspect of this letter require clarification.

Yours sincerely,

Rachael Brown

HR Business Partner”

[5] In the Applicant’s submissions dated 12 October 2021, the Applicant advised that she received a verbal notification from Ms Rachel Brown on 10 August that her employment was being terminated effective immediately. This was confirmed in an email the following day.

Applicant’s submissions

[6] The Applicant submitted that on the afternoon of 10 August 2021, she received a verbal notification from Ms Rachel Brown, HR Business Partner (Ms Brown) advising that her employment was being terminated.

[7] On the morning of 11 August 2021, the Applicant advised she attended the workplace to return her keys and collect her belongings. By lunch time, on the same day, she received the termination letter confirming the termination of her employment.

[8] On 17 August 2021, the Applicant advised she had sought legal advice regarding her dismissal through the Workplace Advice Service. On 20 August 2021, the Applicant stated she received an email advising that they were unable to assist and referred her to another agency. The Applicant noted that the Community Legal Service were also unable to provide her an appointment within an appropriate timeframe.

[9] The Applicant submitted that her application was late by one day. However, it was within 21 days of the email she had received the termination letter.

[10] The Applicant further raised a series of unfortunate events occurring over a period of ten days during the Hearing. However, these events occurred in early October 2021. Whilst unfortunate, these events do not assist me in finding whether an extension should be granted for the unfair dismissal application as they had occurred after the Applicant filed her application to the Commission.

Respondent’s submissions

[11] The Respondent submitted that the application for an unfair dismissal remedy should not be granted an extension. The Respondent noted that in the Applicant’s written statement dated 27 September 2021, the Applicant had:

•  confirmed she received a termination letter on 11 August 2021 which took effect on 10 August 2021; and

•  not disputed the outcome and waited one week before taking steps with regards to her dismissal. Specifically, the Applicant confirmed she only sought legal advice on 17 August 2021.

[12] The Respondent further noted that in the Applicant’s submissions dated 12 October 2021, the Applicant had:

•  disclosed difficult circumstances that resulted in the Applicant’s failure to comply with the directions set out on 28 September 2021; and

•  confirmed that the Applicant was notified of the termination of her employment on 10 August 2021.

[13] In addition to the above, the Respondent provided a copy of the letter sent to the Applicant requesting that she attends a meeting with the Respondent on 10 August 2021. This letter, dated 9 August 2021, stated as follows:

“Dear Jaime,

RE: Meeting Request

We refer to the formal meeting held on 4 August 2021 in which we discussed allegations of fraud and breach of the Communications Compliance Guidelines and Group Code of Conduct as outlined in our letter dated 3 August 2021.

During the meeting you were provided the opportunity to respond. Due to the nature of our concerns you were suspended on full pay pending further investigation.

We now require you to attend a further formal disciplinary meeting as follows:

Date: Thursday 10 August 2021

Time: 12:00pm

Location: JB Hi-Fi Ipswich

Meeting with: Ben Katz (Store Manager) and Rachel Brown (HR Business Partner)

The purpose of the meeting is to provide you with an opportunity to show cause why we should not consider terminating your employment based on all the information available to the business. At the conclusion of the meeting, we will consider your response and will advise you of the outcome at the earliest opportunity. You may take notes during the meeting and you may bring a support person. If you intend to bring a support person, please notify us of the details of your support person by 9.00am Tuesday 10 August 2021.

You are required to maintain confidentiality regarding this matter, and you are not to contact any JB Hi-FI team member regarding our investigation other than myself. Failure to adhere to this requirement may result in disciplinary action up to and including termination of employment.

Please contact me should any aspect of this letter require clarification.

Yours sincerely,

Rachel Brown

HR Business Partner

JB HiFi Group Pty Ltd

[14] The Respondent submitted that the Applicant had the full period of 21 days to lodge an unfair dismissal application however failed to do so.

Was the application lodged within time?

[15] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

[16] The Applicant lodged her application on 1 September 2021. She accepts that her application was made 22 days after her termination and therefore outside of the 21 days required under s.394(2) of the Act. However, the Applicant submitted that the 21 days should be counted from the date of the Termination letter, being 11 August 2021, which would then put her within the 21 days statutory time limit.

[17] The Respondent opposes the granting of an extension, arguing that the Applicant was made aware of her termination on 10 August 2021. The Applicant’s submissions do not dispute this, and in fact, advised that she was informed in the afternoon of 10 August 2021 that she was being terminated.

Should a further period be granted?

[18] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application be made:

“(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 like position.”

[19] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of the Fair Work Australia stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[20] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

[21] For the Applicant’s unfair dismissal application to proceed, it is necessary for her to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

[22] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

Consideration

Reason for the delay (s. 394(3)(a))

[23] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[24] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[25] The Applicant led evidence that she had what could only be regarded as a series of difficult and unfortunate events during this period that I am sympathetic to however they do not meet the test of exceptional circumstances.

[26] Whilst I also accept that the Applicant attempted, on two occasions, to obtain legal advice, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[27] The Applicant submitted that she was made aware of her termination verbally on the afternoon on 10 August 2021. She had received a formal correspondence confirming her termination on the following day on 11 August 2021.

Action taken to dispute the dismissal (s.394(3)(c))

[28] The Applicant did not immediately dispute her dismissal generally with the Respondent. The Applicant sought legal advice on 17 August 2021, 7 days after the effect of the dismissal, from Workplace Advice Service but was advised they could not assist. The Applicant then sought advice from the Community Legal Centre but was unable to meet with them at a suitable time.

Prejudice to the employer (s.394(3)(d))

[29] The Respondent made no submissions in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[30] In Kornicki v Telstra-Network Technology Group, 8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

[31] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission “should not embark on a detailed consideration of the substantive case.” 9

[32] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. However, on initial review of the available materials it appears to me that the Applicant may not have a strong case given nature of the conduct resulting in her dismissal. Given I have not heard the merits of this matter I will weight this factor as neutral.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[33] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[34] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[35] Having regard to all the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[36] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735309>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 at [16].

 5   [2018] FWCFB 901.

 6   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].