Jannette Ellis v Allcare Community Support
[2022] FWC 2425
•4 OCTOBER 2022
| [2022] FWC 2425 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jannette Ellis
v
Allcare Community Support
(U2022/8126)
| COMMISSIONER HAMPTON | ADELAIDE, 4 OCTOBER 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – findings made – no exceptional circumstances – no basis to grant extension of time – application dismissed.
What this decision is about
This decision concerns an application by Jannette Ellis (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Mrs[1] Ellis’ employment with Allcare Community Support, (Allcare or Respondent) concluded by way of a termination discussion and letter on 11 July 2022, which cited redundancy as the reason for the end of the employment relationship. The basis of the dismissal is a disputed aspect of this matter. Mrs Ellis had been employed as full-time Client Service Coordinator since mid-July 2021.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 6 August 2022.
Section 394(2) of the 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 Commission allows pursuant to s.394(3). Adopting 11 July 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 1 August 2022.[2] The application was therefore filed 5 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). Amongst other matters, this request is based upon the contention that Mrs Ellis was delayed in making the application as she was awaiting the supply of a reference and other information from the Respondent and was unaware of the 21-day time limit.
The Respondent opposes the extension of time request, principally on the basis that there are no exceptional circumstances warranting an extension of time being granted.
The Respondent has also raised a jurisdictional objection to the substantive application that I will return to as part of the assessment of merit for present purposes.
The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Mrs Ellis was represented, with permission, by Ms Thomson of Campbell Law and Mr Bailey, Administration Officer and Mr Broadbent, Client Services Manager, appeared for Allcare.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined, on balance, that there are no relevant exceptional circumstances. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
Mrs Ellis provided a witness statement and gave sworn evidence in support of her application.
I found Mrs Ellis’ evidence about those matters pertaining to the explanation for the delay to have been given openly and honestly. Given the nature of the present considerations, it is not necessary, or appropriate, for the Commission to make conclusive findings about the broader circumstances of Mrs Ellis’ employment arrangements and the stated grounds for the dismissal, which remain very much in dispute.
Further, given the factors to be assessed by the Commission in determining this matter, I have treated Mrs Ellis’ statements about the reasonableness of her explanation for the delay as submissions.
The Respondent did not lead evidence. I draw no negative inference from this given the nature of the present proceedings. I am however required to deal with the present consideration of the application based upon the relevant material that is before the Commission.
The events relevant to the explanation for the delay in lodging the application
Mrs Ellis commenced employment with Allcare on 19 July 2021 in the position of Client Service Coordinator. This was a full-time position covered by the Social, Community, Home Care and Disability Services Industry Modern Award 2010 (the modern award).
At some stage in early 2022, the position undertaken by Mrs Ellis was designated as being a Senior Client Service Coordinator and this was accompanied by an increase in pay.
A revised contract for a position, also described as Senior Client Service Coordinator, was executed on 2 June 2022. This position largely involved the same role as the previous positions with the addition of some marketing responsibilities and the “onboarding” of new clients (5 per week).
At the time of the events that follow below, Mrs Ellis worked in a team that included 2 (other) Client Service Coordinators who had more recently been engaged by the Respondent.
On 5 July 2022, the Respondent raised concerns with Mrs Ellis about certain matters associated with the performance of her role. During the course of that day, Mrs Ellis and the Respondent’s Operations Manager exchanged emails about the matters which included a request for more details by the Applicant, a response from the Manager, and a reply to the issues by the Applicant including a request to delay the meeting to enable her to prepare and to arrange a support person. Mrs Ellis also indicated that she was unsure (about the meeting proceeding) and was not feeling well. The Operations Manager acknowledged that the stress and other concerns could be discussed. This meeting did not ultimately proceed, and Mrs Ellis continued work, largely as normal over the coming days.
On 11 July 2022, after a normal staff meeting, Mrs Ellis was advised in a subsequent individual meeting by Mr Keneally, the Respondent’s Chief Executive Officer, to the effect that her job had become redundant, and the Respondent no longer required her services. Mr Keneally also advised that the dismissal had nothing to do with Mrs Ellis’ conduct or “anything like that” and that he regretted the outcome.[4]
A pre-prepared letter was provided to Mrs Ellis during that meeting which stated:
“… …
Dear Jannette,
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review by Allcare Community Support (the employer) of its operational requirements, and what this means for you.
As a result of redundancy of the position of Senior New Client Services Coordinator, is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.
Your employment will end immediately. Based on your length of service, your notice period is two weeks. However, we will be paying in lieu of receiving that notice, we will be paying you 4 weeks.
You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.
If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.
Affected employees and their partners have immediate access to jobactive, prior to becoming eligible for income support- For information about jobactive-eligibility and other support services available, you can access the Help for workers who have recently lost their jobs fact sheet. In addition, the 'What's Next' website provides an online self-help resource for affected employees and employers. For more information, visit thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.
Yours sincerely,
Darryn Keneally
CEO”[5]
During the discussion on 11 July, Mrs Ellis sought and obtained confirmation from Mr Keneally that she would be provided with a work reference to obtain another job and training placement documents associated with a diploma course being undertaken. Mr Keneally also indicated that Mrs Ellis would be getting a bonus that was being given to other employees, notwithstanding her departure. Further, Mr Keneally offered a farewell afternoon tea, and this was declined by Mrs Ellis.
After the dismissal meeting and before leaving the building, Mrs Ellis deleted emails and/or text messages from her company supplied laptop and/or mobile phone. There is a dispute about whether this was undertaken by Mrs Ellis as a means of making these devices ready to be used by another employee or whether this was undertaken inappropriately. It is not necessary to make a finding for present purposes but it reasonable to presume that the Respondent’s views of that conduct may have influenced the timeliness of its subsequent responses to Mrs Ellis.
There is a dispute as to whether another employee was trained and ultimately took over the position occupied by Mrs Ellis. It is reasonably clear that another (then existing) employee has taken over at least part of the Client Services Coordinator role. However, the evidence before the Commission does not enable me to make any findings about whether this is the same role as that occupied by Mrs Ellis, or rather that the duties have been distributed amongst the remaining staff, including that employee. It is also clear that Mrs Ellis discovered from social media that this employee had claimed to have become a Client Services Coordinator (following the departure of the Applicant).
On 13 July 2022, Mrs Ellis sent a text message to Mr Keneally requesting that the reference be provided. This was followed up by the Applicant on 18 July and despite concerns with the deletion of data from the work device(s), Mr Keneally indicated that the reference would be provided by the end of that week (22 July 2022).
At some point, probably on or around 19 July 2022, Mrs Ellis approached a friend, and her evidence about this was as follows:
“MRS ELLIS: … … I asked a girlfriend of mine that has dealt with Fair Work if she thought that I would be able to go for an unfair dismissal and she said yes – with all the information that I showed with her about what happened.
Okay? Because I wasn't going to get paid. So I asked a girlfriend who has had dealings with Fair Work about her work and she said, yes you should be able to get your money. Because he shouldn't make you wait for two weeks for your pay. And I thought this email would get me paid before I went away.”[6]
This view formed part of the response provided by Mrs Ellis to the Respondent on 19 July 2022 in the following terms:
“… …
Hi Darryn
Trust you are well
Again I would like to apologise for deleting the emails I really didn't think I was doing anything untoward but following previous instructions.
FYI – I had a co worker reformat the phone and it was done at my desk while I was sorting the emails I'm assuming this worker thought it was normal practise as well or they would have suggested otherwise.
I cant apologise enough for my actions and wish we were more informed to have avoided this altogether.
As suggested in your termination of employment letter I have sought advice from Fair Work.
Re – The suggested IT costs invoice being deducted from my payment.
(Advised upon information given to me by Fair Work)
I am confirming in writing that I don't agree/permit to any deductions to my payout.
I also request my payout be authorised asap please, as not being an employee with Allcare Community Support affords me not having to wait for the next pay period.
As far as the suggested invoice I am happy to discuss this further at a convenient time for us both if required.
Re Work Placement - I also have a concern Diana signed a contract on behalf of Allcare with Upskilled and it has not been fulfilled as yet.
I would like to know if Diana could please sign off on my placement that was completed and approved by Allcare Community Support so I can move forward with my course to gain future employment. I have appreciated her support and expertise and am grateful for being given the opportunity to do my placement with Diana.
Re Unfair Dismissal - I am "considering" seeking an unfair dismissal through Fair Work.
I was changed to a new contract just prior to it being made redundant,
Work Conduct Meeting - My previous instructions to have a meeting with management re my work conduct were not followed through when I asked to have a person attend with me and an itinerary for me to prepare. I was made redundant instead which can be confusing/conflicting.
Fair Work considers this grounds to pursue if I wish to.
Closing
I really do thank you for agreeing to send me a written reference by the end of this week, its very much appreciated and needed. I look forward to receiving it and value your input.
Darryn I hope this can all be cleared up amicably.
I have only ever wanted to be a part of supporting Allcare to grow.
God Bless
Jannette Ellis”[7]
Despite references in the 19 July email to “Fair Work”, Mrs Ellis’ evidence did not reveal that she had directly contacted or sought information from the Commission or the Fair Work Ombudsman about her dismissal at that point.
Mrs Ellis had planned and booked a driving trip to Perth to visit a sick relative and other family which commenced on 22 July 2022 and concluded on 5 August 2022.
During this trip, Mrs Ellis emailed the Respondent seeking the reference and other details and did not receive any response. This occurred on 19, 24 and 31 July and Mrs Ellis also sought unsuccessfully to contact the Operations Manager.
Mrs Ellis had access to the internet at certain locations during her trip to and from Perth and used this to contact the Respondent. Although there were periods were that access was problematic or non-existent, Mrs Ellis was not seeking to further ascertain her rights to make an unfair dismissal application, or in fact lodge such, during that trip. I find that the trip itself did not prevent either of these initiatives taking place.
For context, the 21-day initial time period concluded on 1 August 2022.
Upon returning to Adelaide on 5 August 2022, Mrs Ellis recognised that she had not lodged her unfair dismissal application and after contacting the Commission by telephone on 6 August 2022, lodged the application that day. Mrs Ellis also sought access to the Commission’s workplace advisory service at that time.
I accept Mrs Ellis’ evidence that although she was aware of the capacity to contest her dismissal, she was not aware of the 21-day time limit before contacting the Commission on 6 August 2022. It is also apparent that Mrs Ellis did not seek to ascertain the details of her unfair dismissal rights in any significant manner until 6 August 2022.
I accept that Mrs Ellis acted promptly to prepare and lodge the application following the receipt of information on 6 August 2022.
It is also the case that Mrs Ellis did not wish to take proceedings against the Respondent before obtaining the reference and the training placement information. Mrs Ellis was also seeking that her “pay out’ be finalised. In response to questions from the Commission about why an application was not made in the context of the 19 July 2022 email to the Respondent, which raised the notion of making an unfair dismissal application, Mrs Ellis’ evidence about this was as follows:
“ … … But I did – I'd – yes, I said that. But it was just so that he could pay me. I wasn't even thinking at the time that I was going to do it. I didn't even have any information on how long I had to do it or anything. It was just I need to have that paperwork and I need to have my pay. So if you're not going to even answer me I may have to go for an unfair dismissal.”[8]
Whilst this was perhaps understandable, by 19 July 2022, despite Mrs Ellis raising the notion of taking unfair dismissal proceedings directly with Mr Keneally, she had not actively explored her litigation options before or around that event, beyond the informal approach to her friend. This is despite a belief that, from her perspective, the dismissal was unfair and that she was not genuinely redundant. Indeed, Mrs Ellis formed a view about the role of the other (replacement) employee based in part on what she observed on the day of the dismissal.
Should an extension of time be granted?
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 stated, 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.[9] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[10]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[11] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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) of the Act requires that, in considering whether there are exceptional circumstances so as 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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including but not limited to the reason for delay) and the assignment of appropriate weight to each.[12] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
The 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 for the delay. 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 on their own merits.[13]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[14] The delay in this matter is 5 days and this is the focus of the present consideration.
I have already made detailed findings about the events associated with the explanation. Whilst I accept that there is some explanation for the delay associated with the absence of timely responses from Allcare, the absence of any meaningful attempts to ascertain or advance her right to lodge the application until the day that the application was lodged does not assist Mrs Ellis’ explanation. In addition, although the Perth trip was a factor, for reasons previously stated, this did not cause a delay in the actions of Mrs Ellis to advance her rights or prevent her from making the application earlier. Further, the fact that Mrs Elis was not aware of the 21-day time limit is not, of itself, exceptional or a basis for a reasonable explanation.[15]
When viewed as a whole, I do not consider there to be a satisfactory or reasonable explanation for most of the delay in lodging the application.
This weighs against of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Mrs Ellis was aware of her dismissal on the day that it took effect. She therefore had the full 21 days to make the application within the initial time limit.
This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mrs Ellis did seek some information from a friend but did not otherwise take action to dispute the dismissal.
The subsequent delay in taking any further action to contest the dismissal after raising the prospect of making the application would not support a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent has not relied upon prejudice. This is relevant[16] and I have taken this into account in my assessment of exceptional circumstances noting that the absence of prejudice to the employer is not of itself a sufficient basis to warrant an extension of time.[17]
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[18] Further, the primary consideration is whether the applicant has an arguable case.[19]
The Respondent has also raised a jurisdictional objection on the contention that the dismissal was a genuine redundancy as defined by s.389 of the Act. If this objection was ultimately upheld, there would be no jurisdiction to hear and determine this unfair dismissal application.[20]
The meaning of a genuine redundancy is defined in s.389 in the following terms:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
The first element (s.389(1)(a)) is directly in dispute and would require comprehensive findings to be made based upon evidence that is not presently before the Commission.
The modern award provides[21] for consultation in the context of major change and this is likely to apply in the case of a change of organisation leading to a redundancy in the present circumstances. This obligation includes the requirement to provide certain information in writing as part of the process.[22] Although there were some discussions about the need to boost clients as part of the June 2022 contract discussion, it is not clear that there was explicit consultation concerning the redundancy, at least in the form contemplated by the modern award. If not, this would mean that this element of the meaning of a genuine redundancy (s.389(1)(b)), and the objection more generally, would not be sustained.
There is also a dispute about the third element of the definition (redeployment – s.389(2)), and this would require comprehensive findings to be made based upon evidence that is not presently before the Commission. I observe that given the team of Client Service Coordinators at the time, and in the absence of any express discussion about this option, this aspect might also be problematic for the Respondent’s jurisdictional objection.
As a result, the Respondent does not appear to have a strong case in connection with its jurisdictional objection and at least based upon the information presently before the Commission it is likely that the unfair dismissal application would be heard on the merits.
Mrs Ellis fundamentally contends that the dismissal took place because of reasons other than a redundancy. She also contends that the alleged redundancy was not real, that her position continues, and she has been replaced. Mrs Ellis also contends that the dismissal was not procedurally fair and that alternatives to dismissal should have been considered.
The Respondent contends that the Applicant’s position was not required, that her position became redundant, and that no person is undertaking that particular role. The Respondent also denies the alleged connection with the earlier disciplinary events. For reasons outlined earlier, there is presently insufficient evidence before the Commission to enable findings to be made about these contentions.
The dispute about the fundamental reasons for the dismissal and its fairness would require findings to be made by the Commission based upon evidence that is not presently before the Commission. Accordingly, it is not possible to make a more definitive assessment of the merits of the unfair dismissal application, including the jurisdictional objections, without hearing robust evidence about the facts of the matter, including from the Respondent. For present purposes, Mrs Ellis would appear to have an arguable case on merit associated with the way the dismissal was handled, and probably, more generally.
I have taken the competing positions about merit, and the findings about an arguable case, into consideration in my assessment of whether exceptional circumstances exist in this matter.
Fairness as between the person and other persons in a similar position
Nothing of relevance has been raised in this regard.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
I have found that the considerations in s.394(3) of the Act applied to this matter do not generally favour a finding of exceptional circumstances, or in some cases are, in effect, of neutral significance in this matter. However, Mrs Ellis has an arguable case on merits. All factors must be taken into account and given appropriate weight.
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act and weighed them accordingly, I am, on balance, not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial 21-day period provided by s.394(2)(a), and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[23]to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
J Thomson, of Campbell Law, with permission for Mrs Ellis, the Applicant.
D Bailey with G Broadbent, on behalf of Allcare Community Support, the Respondent.
Hearing details:
2022
September 14
Video Hearing.
Final written submissions:
15 September 2022 - Applicant – supply of FWC communications confirming lodgement dated 6 August 2022.
[1] This is Mrs Ellis’s preferred form of address.
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the Act.
[4] Transcript, 14 September 2022, PN178.
[5] Digital Court Book page 12.
[6] Transcript, 14 September 2022, PNs 411–412.
[7] Digital Court Book page 51.
[8] Transcript, 14 September 2022, PNs 426–429.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[10] Ibid.
[11] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[12] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[14] Ibid.
[15] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 547.
[16] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[17] Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at [300].
[18] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[19] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[20] Sections 389 and 385 of the Act.
[21] Clause 8.
[22] Clause 8.2.
[23] PR746316.
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