Jasmine Rodrigo v Fujitsu General (Aust.) Pty Limited
[2024] FWC 1736
•2 JULY 2024
| [2024] FWC 1736 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jasmine Rodrigo
v
Fujitsu General (Aust.) Pty Limited
(U2024/5760)
| COMMISSIONER YILMAZ | MELBOURNE, 2 JULY 2024 |
Application for an unfair dismissal remedy – application lodged out of time – application dismissed.
Ms Jasmine Rodrigo (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of her employment with Fujitsu General (Aust.) Pty Limited (Fujitsu or the Respondent).
Ms Rodrigo was employed in the position of Customer Experience Specialist from 11 January 2024 until her dismissal on 29 April 2024[1]. The unfair dismissal application was lodged on 21 May 2024.
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). The period of 21 days ended at midnight on 20 May 2024. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
Ms Rodrigo was self-represented, and Fujitsu was represented by Baker & McKenzie. Both parties agreed that the matter be determined on the papers and the hearing date was vacated.
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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.[2] 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.[3]
Section 394(3) of the Act 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; 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 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 the Application.
Reason for the Delay and whether the person first became aware of the dismissal after it had taken effect
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. 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.[4]
In her written submissions, Ms Rodrigo states that at the time of lodging her application on 21 May 2024 she was under the impression that it was within the 21-day period and the late lodgement was a “horrible oversight” on her part. Ms Rodrigo explained she “counted down 3 weeks on a calendar from 30th April which was 21st May” and she was not aware the day after her dismissal, that is the 30 April 2024, counts as day 1 of the 21-day period.
The Respondent submits the blame for the delay “lies solely with the Applicant” and there “is no suggestion, or submission that the Applicant was not aware of the dismissal on 29 April 2024.”[5]
On 29 April 2024, a Teams meeting at 11.00am was arranged between the Applicant and the Respondent. The invitation was emailed on 26 April 2024 and communicated the view of the Respondent that the Applicant had engaged in misconduct with the potential outcome being termination of employment. The purpose of the meeting in the email indicates that the Applicant may raise any issues concerning the possibility that her employment may be terminated. Later in the afternoon of 29 April 2024, the Applicant was sent an email from the General Manager thanking her for her attendance at the meeting and while her additional points were taken into account, the decision was to dismiss her effective that day with payment in lieu of notice.[6]
The Applicant was aware of her dismissal on 29 April, she tendered the materials communicating this and does not deny this understanding. The reason for the delay, she submits is simply her error in calculating the period of 21 days. From the submissions there is an absence of evidence of any lack of awareness of the statutory time frame, which is not an exceptional circumstance to weigh in favour of an extension in any event, but rather she submits that she miscalculated the period to make the application. However, the miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[7] Nothing further was submitted that may be considered exceptional.
Although, 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.[8]
Action taken to dispute the dismissal
Other than lodging this unfair dismissal application, it is not contested that Ms Rodrigo did not take any action, to question, argue against or to dispute her dismissal. There was no evidence of action taken by Ms Rodrigo to challenge the dismissal. This consideration does not add any weight in favour of an extension of time.
Prejudice to the employer
Ms Rodrigo submits that her delay has not caused disadvantage to the Respondent, but rather concedes that the delay may be an advantage should her application not be granted an extension of time. The Respondent makes no submission as to any prejudice but submits that an absence of prejudice is no basis to award an extension of time. The authorities confirm the principle that an absence of prejudice is not a basis for discretion to grant an extension.[9]
Merits of the application
Ms Rodrigo submits the reason for the dismissal was unfounded, the punishment too harsh and process unfair.[10] She submits that on 10 April 2024 she was stood down with pay during an investigation into alleged harassment following her Team’s message about a co-worker.
On 15 April 2024 an in-person meeting took place with the Respondent, the Applicant and her support person to discuss the particulars of the allegation. Ms Rodrigo makes submissions that she was denied the opportunity to see the message she was alleged to have sent, but also states that she had seen the message prior to the meeting in an email erroneously received of which the Head of People and Culture recalled.
Minutes of the meeting prepared by the Respondent were tendered in evidence by the Applicant. Ms Rodrigo relies on the minutes but submits that they were short for a meeting that lasted as least 45 minutes. I observe the Minutes are not a transcript of the whole conversation and that Ms Rodrigo accepts while not a complete record of the discussion, it accurately reflects the points of discussion at the meeting.
On 19 April 2024 Ms Rodrigo received correspondence from the People and Culture Manager which attached the alleged offending message sent by the Applicant and she was given a final opportunity to respond in writing to the allegation including the possibility of termination of employment.[11] Ms Rodrigo submits that she responded and subsequently a further meeting was scheduled for 29 April 2024 with the General Manager for a final opportunity to influence the decision to terminate her employment due to misconduct.[12] The Applicant received an email from the General Manager later that day advising of the decision was to dismiss her with payment in lieu of notice.[13]
The Respondent submits the merits are difficult to discern from the Applicant’s statement of evidence which is yet to be tested. It further submits that there is evidence of valid reason and procedural fairness afforded to the Applicant.[14]
Having had the opportunity to review the materials tendered in evidence by the Applicant, the reasons for the dismissal was made clear to the Applicant throughout the process. Much of the evidence supports a process of investigation and right of reply. Ms Rodrigo submits that she was confused by the process and was unaware of the intention of the show cause meeting. Should I accept that Ms Rodrigo was somewhat confused, the evidence shows clear communication of the allegation made against her and of the process adopted for reply including her opportunity to influence the preliminary view to dismiss on the basis of misconduct. I accept that Ms Rodrigo understood the seriousness of what was put to her and her responses as reflected in the minutes and her written reply support this finding.
I further observe the Applicant’s written response to the allegations includes statements of unintentional intent to offend, infers no recollection of the message sent and challenges how the message can be considered evidence in support of the allegation.[15] The response challenges the Respondent’s position and process. I note that the Applicant’s written response does not show any remorse concerning the conduct. Of relevance in the minutes of the meeting is an inference by the Applicant of problematic relations for some time between herself and the staff member that complained of the conduct. While Ms Rodrigo submits that the dismissal was disproportional to the conduct, evidently this is likely to be contentious between the parties.
Clearly where there are contested statements of fact, merit cannot be tested in an extension of time hearing. It cannot be determined from the materials in evidence that the Applicant either has a strong or weak case. It is evident that the merits of the application turn on contested facts and further evidence. It is well established from the authorities 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)”.[16] On this basis, I find that the merits of the application are a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party made submissions with respect to s.394(3)(f). For this reason, this consideration is a neutral factor.
Conclusion
Taking into account my findings regarding each of the matters referred to above, I do not consider that there are exceptional circumstances to grant an extension of time. The circumstances of this matter are not out of the ordinary, unusual, special or uncommon. On either a single or a combination of the matters and I cannot be so satisfied of exceptional circumstances in support of an extension of time.
Having regard to all of the matters listed at s.394(3) of the Act, I find them either to not weigh in support or are neutral considerations. Consequently, I am not satisfied that there are exceptional circumstances and no basis to allow an extension of time.
The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed.
An order[17] to that effect will be issued with this decision.
COMMISSIONER
Final written submissions:
Applicant, 12 June 2024
Respondent, 19 June 2024
[1] Email from Trevor Cook, General Manager – Customer Experience, dated 29 April 2024 at 4.13pm - Attachment to Applicant’s Outline of Submissions.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Respondent’s Outline of Argument: Objections, at [5] and [7] respectively.
[6] Email from Trevor Cook, General Manager – Customer Experience, dated 29 April 2024 at 4.13pm - Attachment to Applicant’s Outline of Submissions.
[7] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [7].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[9] CFMMEU v Forever New Clothing Pty Ltd [2022] FedCFamC2G 366, [51]; Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[10] Applicant’s Outline of Submissions, [7].
[11] Email from Ms Rowling, People and Culture Manager, to Ms Rodrigo dated 19 April 2024 at 11.05am - Attachment to Applicant’s Outline of Submissions.
[12] Invitation to attend meeting from Pauline Low to Ms Rodrigo, dated 26 April 2024 at 10.28am - Attachment to Applicant’s Outline of Submissions.
[13] Email from Trevor Cook, General Manager – Customer Experience, dated 29 April 2024 at 4.13pm - Attachment to Applicant’s Outline of Submissions.
[14] Respondent’s Outline of Argument: Objections, [10](e).
[15] Email from Ms Rodrigo to People and Culture, dated 23 April 2024 at 3:39pm – Attachment to Applicant’s Outline of Submissions.
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[17] PR776615.
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