Jo-Lee Currie v TAL Services Ltd
[2024] FWC 883
•22 APRIL 2024
| [2024] FWC 883 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jo-Lee Currie
v
TAL Services Ltd
(U2024/1211)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 22 APRIL 2024 |
Application for an unfair dismissal remedy – application made outside time prescribed – whether further period should be allowed – whether there are any exceptional circumstances – no exceptional circumstances found – application dismissed.
Jo-Lee Currie (Applicant) commenced employment with TAL Services Ltd (Respondent) on 12 September 2022.[1] The Applicant was dismissed from that employment on 15 January 2024 and was notified of her dismissal on that same day.[2] She agreed that she was given a letter dated 15 January 2024 advising that she was dismissed and the reasons for the dismissal.[3] She later applied under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy on 6 February 2024.
On 7 March 2024, I conducted a hearing to deal with the question of whether the Applicant should be permitted a further period within which to lodge her unfair dismissal application.[4]
Section 342(2) of the Act requires an application for an unfair dismissal remedy to be made within 21 days of the date on which the dismissal took effect, or within such further period as the Commission may allow.
The Applicant’s dismissal took effect on 15 January 2024. To fall within the 21-day timeframe prescribed by s 394(2) of the Act, the application should have been made by 5 February 2024. The Applicant lodged her unfair dismissal remedy application on 6 February 2024. Self-evidently, the application was one day outside the time prescribed by the Act.
Section 394(2) of the Act empowers the Commission to allow an application to be made within a further period, subject to being satisfied that there are exceptional circumstances as described in subsection (3). It is necessary, therefore, to consider whether the Applicant should be granted a further period regarding lodgement of her application under s 394(3).
Whether there are exceptional circumstances is determined taking into account various matters set out in s 394(3) of the Act. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, or unusual, or special or uncommon, but the circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might be a single event which is exceptional or a combination of unexceptional factors which when combined amount to exceptional circumstances.
As indicated, s 394 requires me to take into account particular matters in assessing whether there are exceptional circumstances. Those matters are set out in s 394(3) as follows:
“(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.”
Each of these matters needs to be taken into account, assessed, and appropriate weight must be given to each taking into account the evidence that has been given.
Reason for the delay
Engagement of Unfair Dismissals Australia
Firstly, the Applicant claimed a reason for her delay related to how she endeavoured to engage Unfair Dismissals Australia to represent her.[5] The Applicant provided email correspondence between herself and Unfair Dismissals Australia to the Commission,[6] including screenshots of both dated and undated email correspondence.
On 5 February 2024 at 3:12pm AEDT, Unfair Dismissals Australia sent correspondence containing information about its fees and fee options to the Applicant.[7] The Applicant claims she responded to Unfair Dismissals Australia on 5 February 2024 at 4.05pm AEDT as follows:
“If you are accepting my request for your services, including lodgement with the FWC, I would select the first option, for no win no fee.”[8]
However, earlier on 5 February 2024 at 3:42pm AEDT, Unfair Dismissals Australia emailed the Applicant as follows:
“We would most likely not have time at this stage now to lodge the claim within business hours.
If you do lodge it yourself and would still like to use our representation, do let us know. We can still be added after the fact.”[9]
In the same screenshot, the Applicant responded to the above email from Unfair Dismissals Australia in an undated email, which she claims was dated 5 February 2024 at 3:51pm AEDT,[10] and provides as follows:
“Thankyou. I would definitely like to engage your services immediately, however if unable to do this and if I need to lodge myself I would still like to engage your services as soon as possible. How do I lodge this claim myself? I will try to look it up on the internet but if you can help direct me to the correct website that would be great.”
The Applicant said that the email chain at paragraphs [11] and [12] supports her submission that she had Unfair Dismissals Australia represent her.[11]
The Applicant provided no evidence indicating that Unfair Dismissals Australia responded by email to her above email set out at [12] above.[12] The Applicant claimed she received a call or called Unfair Dismissals Australia on 5 February 2024 at 4:30pm AEDT and that she agreed to look at the fee structure and consider them.[13]
The Applicant said she was confused about the correspondence with Unfair Dismissals Australia.[14] She claimed that there was “nothing to say that they weren’t representing me”.[15] She also claimed that she thought the Unfair Dismissals Australia contacts with whom she had been corresponding were representatives of the Fair Work Commission.[16]
I found the Applicant’s evidence to be unreliable. The Applicant made inconsistent statements before and during the hearing. For example, less than ten minutes prior to the hearing start time, the Applicant filed submissions in reply claiming that she was “under the impression (sic) [the] service I was liasing (sic) with would be lodging my claim until 4pm on the 21st day”.[17] However, during the hearing, the Applicant said that she was not suggesting that Unfair Dismissals Australia made a mistake or told her they would lodge her application and did not do so.[18] Further, the Applicant claimed in her submissions in reply that she understood that “the 21day cooling off period started from the day AFTER TERMINATION. Meaning 16 Jan plus 21 days”.[19] That evidence is similarly inconsistent with the evidence she gave during the hearing when she said she understood she was “running a little bit more tight for time” on 5 February 2024.[20] Moreover, the Applicant’s evidence that she thought Unfair Dismissals Australia were representatives of the Fair Work Commission is just not credible in light of here email correspondence with Unfair Dismissals Australia reproduced at [12] above in which she wrote, inter alia, “I would still like to engage your services as soon as possible. How do I lodge this claim myself? I will try to look it up on the internet but if you can help direct me to the correct website that would be great”. Plainly she knew she was dealing with a service provider, she sought to engage their services and sought advice about the correct website on which she could lodge an application. Much less is the suggestion credible in light of the earlier fees’ communication.
Clearly, representative error was not alleged by the Applicant during the hearing, and I do not consider that Unfair Dismissals Australia were engaged to represent the Applicant or to lodge an unfair dismissal remedy application on her behalf. The Applicant has not provided any probative evidence suggesting she was represented by Unfair Dismissals Australia. Rather, her evidence suggests she was in the process of considering whether to engage Unfair Dismissals Australia as late as around 4:30pm AEDT on 5 February 2024. Beyond that time, there is no evidence of any engagement of or contact with Unfair Dismissals Australia. Moreover, the Applicant gave evidence that she started preparing her application as soon as she returned home on 5 February 2024 at about 6.30pm AEDT.[21] This is inconsistent with her evidence that she thought Unfair Dismissals Australia would or might lodge the application or that she was confused about whether Unfair Dismissals Australia would lodge the application.[22] In any event, the Applicant eventually realised that she would need to lodge her own application.[23] That realisation was no later than 6:30pm AEDT when the Applicant started preparing the application for lodgement. At that stage, there was still time to lodge the application within the time prescribed.
I am also not satisfied that the Applicant understood the Unfair Dismissals Australia representatives to be representatives of the Commission. The Applicant relies on an email dated 5 February 2024 at 3:12pm AEDT from Unfair Dismissals Australia, which contains the address details, logo and name of Unfair Dismissals Australia,[24] as distinct from those of the Commission. As I have earlier noted, her evidence about this is simply not credible in light of her dealings with Unfair Dismissals Australia. And even if she held that view, there is no evidence that Unfair Dismissals Australia did or said anything which would lead the Applicant to so conclude. In the circumstances, I am not persuaded that the reasons proffered above satisfactorily explains the delay.
Commission website ‘glitches’
Secondly, the Applicant claimed a reason for her delay to be related to glitches within the Commission website during the process of her online application.[25]
As already noted, the Applicant said that she started preparing her application as soon as she returned home on 5 February 2024 at about 6.30pm AEDT.[26] She understood that 5 February 2024 was the last day of the 21-day period to submit her application.[27] The Applicant also understood that she was “running a little bit more tight for time” and that 11:00-11:30pm AEDT on 5 February 2024 was when she got back to actually submitting the application as she wanted to ensure she had everything ready.[28] She stated that she was experiencing errors and did not want to refresh the page in case she lost the information.[29] She stated she refreshed the page and lost the “main bulk of the information”.[30]
The Applicant said she understood there was an error after midnight and submits she took a screenshot of the error.[31] The Applicant relied on an undated screenshot said to have been taken on 5 February 2024 at 11:53am AEDT stating:
“Submitting: Your form is being saved. Please wait …”[32]
The above screenshot included an image depicting bars of internet connectivity or signal strength,[33] indicating that the strength of the internet connection was pretty poor.[34] The Applicant agreed that the problem she was experiencing was one of the strength of the internet.[35] The Applicant indicated that “it was most likely the internet connection that was causing the issue, which I can agree with”.[36]
The Applicant had earlier submitted via email dated 23 February 2024 that the “FWC website ‘glitched’ multiple times during my online application”.[37]
The Applicant submits she was “staying in a remote location with little mobile/internet reception”.[38] She claims she did not undertake an internet speed test as she did not have enough time.[39] She submitted that she had not had any issues whilst lodging other pages of her application.[40]
The Applicant claims she received an automated email from the Commission at 11:26pm AEDT on 5 February 2024 that indicates she was endeavouring to register as a user, which stated:
“This email has been sent to you as part of the registration process for the Fair Work
Commission's Online Lodgment Service.To complete the registration process, please click on the link below:”[41]
The Applicant also relies on an email from the Commission dated 6 February 2024 at 12:03am, which advises that:
“Your partially completed form has been saved for completion at a later time.
Please be aware your form has NOT been lodged.
Strict lodgement times apply to many forms. It is your responsibility to ensure your form is lodged in time.”[42]
The Applicant received confirmation that she successfully lodged an application with the Commission at 12:14 am AEDT on 6 February 2024,[43] along with a receipt for payment of the lodgement fee.[44]
The Applicant’s evidence does not establish there were glitches within the Commission website, rather, it demonstrates she started her registration before midnight, received an email that her application was partially complete after midnight, and received an email that her application had been saved.[45] The Applicant claims that she was “not a computer expert by any means”.[46] That the application was late had little or nothing to do with a lack of computer expertise. In truth, as the evidence shows, the application was late because the Applicant left it to the last minute to prepare and lodge her application. That is the reason for the delay, and that reason is not a satisfactory explanation.
The internet connection issue the Applicant was experiencing was not out of the ordinary, unusual, special or uncommon, noting her evidence that the “reception was very sporadic, or very – just occasional”.[47] Although the Applicant claimed that “the reception’s not always terrible in Swan Hill”,[48] the Applicant did not leave enough time to prepare and submit her application despite her awareness of potential for an internet issue in an area where she knew reception was more likely to be available. In the circumstances, the absence of an acceptable or credible explanation or reason for the delay weighs against a conclusion that there are exceptional circumstances.
Awareness of the dismissal
The Applicant confirmed she was dismissed on 15 January 2024 and was notified of this on that same day.[49] And she does not suggest she was not aware that a time limit is attached to making an unfair dismissal remedy application. That the Applicant had the benefit of the whole of the 21-day period within which to make the application in the circumstances weighs against a conclusion that there are exceptional circumstances.
Any action taken to dispute the dismissal
Apart from lodging her application and making enquiries with Unfair Dismissals Australia, the Applicant provided no evidence indicating she took any other step to dispute her dismissal.[50] That she did not take any step weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent appropriately conceded that there was no obvious prejudice to the employer caused by the Applicant’s delay,[51] though submitted that this factor should be considered neutrally.[52] The delay was very short and, in the circumstances, I accept that the absence of prejudice weighs slightly in favour of a conclusion that there are exceptional circumstances.
Merits of the application
The Respondent submitted that the Applicant was dismissed because of poor performance, that it afforded her procedural fairness and that it engaged in a process of warnings and counselling.[53]
The Applicant disputed the Respondent’s reason for the dismissal and the veracity of the warnings issued to her.[54] The Applicant claimed the first written warning was partially withdrawn as she was able to prove that it was incorrectly directed to her.[55] Without the parties giving any evidence about the circumstances of the dismissal, it is difficult to assess the merits of the application. It is also difficult to assess the merits in the context of what was essentially an interlocutory proceeding, one where the merits are not tested as they would be in a final hearing. However, based on the material before the Commission, the Applicant’s case is arguable. Accordingly, this consideration weighs neutrally.
Fairness as between the person and other persons in a similar position
As has often been stated, although extension of time cases will generally turn on their own facts the fairness consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between an applicant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided or may concern the position of an applicant and the dismissal of other employees of the respondent at or around the same time. The Applicant did not point to any fact, circumstance or case which might be relevant to this consideration.[56] I therefore consider the fairness consideration in s 394(3)(f) of the Act weighs neutrally.
Conclusion
Statutory time limitations are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application as an expression of the Parliament’s intention to balance the right to bring an action against the right of another party to have some certainty. The reason for such time limitations is that a party should be able to know that actions that they have taken will be disputed in a relatively short time frame, otherwise the dispute cannot later be agitated. It is for that reason that the Parliament decided that 21 days is the appropriate balance to be struck and has allowed the Commission to extend that time if satisfied that there are circumstances.
In the instant case, the Applicant has not provided an acceptable or credible reason for the delay, she took no step beyond lodging the late application to dispute her dismissal and she had the full benefit of the 21-day period within which to lodge the application but left that task to the last minute. This was a misjudgement but hardly exceptional. The merits of the case weigh neutrally as does the fairness consideration and the absence of prejudice to the employer weighs only slightly in the Applicant’s favour. Considering the matters set out in s 394(3) of the Act in the context of the present case, whether individually or collectively, I am not satisfied that there are exceptional circumstances. Accordingly, this is not an occasion on which consideration of whether to allow a further period arises because the jurisdictional precondition - exceptional circumstances - do not exist.
Order
I order that:
The application to allow a further period within which Jo-Lee Currie might be allowed to lodge an unfair dismissal remedy application is refused; and
The application (U2024/1211 lodged by Jo-Lee Currie on 6 February 2023 outside of the time prescribed in s 394(2) of the Fair Work Act 2009 (Cth)) is dismissed.
DEPUTY PRESIDENT
Appearances:
J. Currie on her own behalf
E. Dabbagh for TAL Services Ltd
Hearing details:
Melbourne
2024
7 March
Applicant attending via MS Teams
Final written submissions:
Applicant, 21 and 23 February 2024 and 7 March 2024
Respondent, 27 February 2024
Printed by authority of the Commonwealth Government Printer
<PR773224>
[1] Transcript at PN35-PN38
[2] Ibid PN39 and PN127
[3] Ibid PN40-41; Amended Court Book Page 6 and 60
[4] Transcript at PN15
[5] Ibid at PN42-PN43
[6] Ibid at PN44-46; Amended Court Book 11-15
[7] Transcript at PN55-PN56; Amended Court Book at page 15
[8] Transcript at PN62-PN64
[9] Amended Court Book at page 12
[10] Transcript at PN111-PN112
[11] Ibid at PN54
[12] Ibid at PN117-PN119
[13] Ibid at PN122-PN125
[14] Ibid at PN65
[15] Ibid at PN46
[16] Ibid at PN66 and PN185
[17] Applicant’s Submissions in Reply dated 7 March 2024
[18] Ibid at PN203-PN204
[19] Applicant’s Submissions in Reply dated 7 March 2024
[20] Transcript at PN75
[21] Ibid at PN68-70
[22] Ibid at PN65
[23] Ibid at PN66
[24] Amended Court Book at page 15
[25] Ibid at page 17
[26] Transcript at PN68-70
[27] Ibid at PN75
[28] Ibid at PN75
[29] Ibid at PN76
[30] Ibid at PN76
[31] Ibid at PN77
[32] Amended Court Book at page 14
[33] Ibid at page 14
[34] Transcript at PN105
[35] Ibid at PN105
[36] Ibid at PN138
[37] Amended Court Book at page 17
[38] Ibid at page 17
[39] Transcript at PN86
[40] Ibid at PN83
[41] Amended Court Book at page 19B; Transcript PN94-PN96
[42] Amended Court Book at page 19C; Transcript PN101-103
[43] Amended Court Book at pages 19F and 19G; Transcript at PN103
[44] Amended Court Book at pages 19D and 19E; Transcript at PN103
[45] Transcript at PN103
[46] Ibid at PN104
[47] Transcript at PN56
[48] Ibid at PN217
[49] Ibid at PN39 and PN127
[50] Ibid at PN128
[51] Ibid at PN129; Respondent’s Submissions at paragraph [28]
[52] Respondent’s Submissions at paragraph [28]
[53] Transcript at PN129; Respondent’s Submissions dated 27 February 2024 at paragraph [31]
[54] Transcript at PN129
[55] Ibid at PN130
[56] Ibid at PN135-PN138
Printed by authority of the Commonwealth Government Printer
<PR773224>
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