Janette Bayman v Air Force Association (Western Australian Division) Incorporated
[2024] FWC 1151
•2 MAY 2024
| [2024] FWC 1151 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janette Bayman
v
Air Force Association (Western Australian Division) Incorporated
(U2024/2531)
| COMMISSIONER SCHNEIDER | PERTH, 2 MAY 2024 |
Application for an unfair dismissal remedy
Mrs Janette Bayman (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Royal Australian Air Force Association (the Respondent).
The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the out of time issue was held. The Applicant filed submissions in the Commission on 19 April 2024. The Respondent filed submissions in the Commission on 29 April 2024. At the Hearing, the Applicant gave evidence on her own behalf. The Respondent did not present any witnesses.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a 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)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties are in dispute about when the dismissal took effect.
Submissions and Evidence
The Applicant submits that she was advised of her termination on 5 January 2024. The Applicant submits that she went to work that day and attended a farewell afternoon tea.
The Respondent submits that the dismissal took effect on 4 January 2024. The Respondent submits that the Applicant finished work on that day and did not attend work on 5 January 2024.
The Respondent submits that there is no evidence that the Applicant attended work on 5 January 2024.
Neither party provided documented evidence in relation to whether the Applicant was dismissed on 4 or 5 January 2024.
The Respondent was provided ample opportunity to file submissions and evidence regarding the out of time issue, concerning this item however, the Respondent failed to do so as directed prior to the hearing on 30 April 2024.
At the hearing, the Respondent stated that payroll data and timesheet records confirmed the Applicant’s employment ended effective 4 January 2024.
The Applicant, in her evidence before the Commission, was adamant that her employment ceased on 5 January 2024.
Consideration
Having considered the Applicant’s testimony given under affirmation, I have no reason to doubt that she is being truthful. Accordingly, on assessment of the evidence before me, I am satisfied that the dismissal took effect on 5 January 2024.
In the event that the Applicant is mistaken, and the termination date was indeed 4 January, the conclusions that follow would remain unchanged and the application would obviously still be made out of time.
It is a matter of record that the application was made on 5 March 2024. As noted above, the dismissal took effect on 5 January 2024. The final day of the 21-day period was therefore 29 January 2024 and ended at midnight on that day. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant law
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(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.”
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon.
The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]
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.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay.
Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration of Criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 January 2024. The delay is the period commencing immediately after that time until 5 March 2024 (the date of lodgement), although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant put forth the following reasons as contributing to the delay:
· In her F2 Application Form, the Applicant confirmed that she sought to meet with the Respondent’s Chief Executive Officer, Ms Michelle Fyfe (Ms Fyfe or the CEO), following the termination of her employment on 5 January 2024.
· The Applicant submits that she applied for a similar position with the Respondent and was not shortlisted for an interview due to a technical issue with her application. The Applicant submits that, once she explained this to the recruitment department, they refused shortlist her application.
The Applicant provides the below timetable outlining her attempts to seek further information regarding her termination from the Respondent:
· 11 January 2024 – the Applicant speaks to the Personal Assistant of the CEO.
· 11 January 2024 – Ms Fyfe attempts to return the Applicant’s call.
·
· 12 January 2024 – Ms Fyfe speaks to the Applicant and agrees to meet with her.
· 19 January 2024 – the Applicant meets with Ms Fyfe. The Applicant submits that Ms Fyfe agrees to get back to her on the questions she had about her termination and the possibility of returning as a volunteer.
· 24 January 2024 to 27 February 2024 – the Applicant attempts to contact Ms Fyfe unsuccessfully.
· 27 February 2024 – the Applicant is advised that Ms Fyfe is on leave and would not return until the second week of March.
· 5 March 2024 – the Applicant files her application.
The Applicant submits that the actions of Ms Fyfe denied her the ability to file her application with the Commission within the 21-day filing period.
The Applicant submits that she acted in good faith by waiting for a response from Ms Fyfe prior to filing.
The Respondent submits that the CEO advised the Applicant she would not be able to respond until after her leave on 11 March 2024.
The Respondent, however, did not prepare a statement of evidence from Ms Fyfe in support of its submissions in time for the Hearing.
The Respondent submits that, on 22 January 2024, following the resignation of another employee, the Respondent advertised a position that the Applicant then applied to. The Respondent submits that, in the application process, the Applicant initially indicated that she was interested in part-time employment.
The Respondent submits that the Applicant was advised the position needed to be full-time.
The Respondent submits that, as a result of the indication of interest in part-time employment, the Applicant was not shortlisted for the position.
The Respondent submits that the Applicant later advised she would be open to full-time employment. However, by that time, the recruitment process had progressed, and the Applicant had not been shortlisted.
The Respondent submits that the Applicant was advised she would not be shortlisted on 28 February 2024 and then, as a result, the Applicant decided to file this application shortly after, on 5 March 2024.
In her testimony, the Applicant outlines that her primary objective for seeking to speak with Ms Fyfe and her line manager, following the termination of her employment, was to understand why she was no longer required and to offer her volunteer services to the organisation.
It is understandable that waiting for a response or for the finalisation of a recruitment process may motivate some applicants to delay lodgment, in the hopes that their termination may be resolved informally. However, noting that, in the circumstances of this matter, the Applicant was aware of her termination and its effect and does not appear to have been misled regarding her prospects in the recruitment process, I am not satisfied this reason for delay weighs strongly in favor of a finding of exceptional circumstances and must be assessed in balance with the following criteria.
Did the Applicant first become aware of the dismissal after it had taken effect?
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the day it took effect, therefore the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
It is not disputed that the Applicant sought to discuss her termination and options with the CEO.
Although not strictly action to dispute the dismissal, the Applicant also applied to a further position with the Respondent following her termination.
I am satisfied the Applicant took the above action and this reflects that the decision to dismiss was contested by her.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[10] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant 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.
In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Consideration
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being that the Applicant sought to await response from the CEO;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) some action taken by the Applicant in contest of the dismissal;
(d) the absence of any prejudice to the employer;
(e) the merits of the application, being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
Briefly, to reiterate, 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 primary reason for delay relied upon by the Applicant was her attempts to have discussions with Ms Fyfe in relation to her dismissal prior to lodging this application.
While I accept this decision was well intentioned by the Applicant, the decision to delay lodgment while awaiting a potential response was unnecessary. The decision to delay lodgment was the Applicant’s choice and not driven by any promises or misdirection by the Respondent.
Further, the Applicant decided to apply for another position with the Respondent on or after 22 January 2024.
The decision making of the Respondent in that recruitment process, as it related to the Applicant, appeared to be influenced by the Applicant’s indication of interest in part-time employment. The Respondent was under no obligation to hire the Applicant and, again, any delay caused by the hope of being rehired was the Applicant’s choice and an unnecessary one at that.
If the Applicant was not aware of the 21-day time limit for filing an unfair dismissal application with the Commission, the Commission has a well-established precedent that ignorance of the 21-day period is not usually supportive of exceptional circumstances.
In making the above conclusions, I highlight that the Applicant was aware of her dismissal as well as its effect and conclusiveness, this much is clear by way of her attempts to re-establish some form of employment or working relationship at the Respondent.
It is not the case in this matter that the Applicant was unaware of her termination or its effect, nor was she misled into believing a further position was definite and as such lodgment should be delayed.
In assessment of all the criteria, and upon review of the materials before me, I am not satisfied that there is anything in the current matter that rises to a level which would warrant a finding of exceptional circumstances.
The circumstances in the matter before me are not out of the ordinary course, unusual, special, or uncommon.
Conclusion
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect has been issued.[13]
COMMISSIONER
Appearances:
J Bayman, Applicant.
L Hawkins for the Respondent.
Hearing details:
2024.
Perth (by video):
April 30.
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Ibid; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, [13].
[5] Ibid.
[6] [2018] FWCFB 901, [39].
[7] Ibid, [40].
[8] Ibid, [17].
[9] [2015] FWCFB 287, [12].
[10] [2011] FWAFB 975, [36].
[11] [2011] FWAFB 975, [13].
[12] Ibid.
[13] [PR774466].
Printed by authority of the Commonwealth Government Printer
<PR774465>
0
4
0