Jordan Donohoe v QuickComms Australia Pty Ltd
[2020] FWC 3957
•28 JULY 2020
| [2020] FWC 3957 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jordan Donohoe
v
QuickComms Australia Pty Ltd
(U2020/9178)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 28 JULY 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Ms Jordan Donohoe for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).
[2] Ms Donohoe made an application for an unfair dismissal remedy under s.394 of the Act on 3 July 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Ms Donohoe’s application was filed outside the timeframe for lodgement of the application. 1 Ms Donohoe seeks that the Commission allow a further period of time for the application to be made. The respondent opposes the grant of an extension of time.
[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. The application is dismissed.
The dismissal
[4] The respondent is a telecommunications provider and is a party to a dealership agreement with Telstra. Ms Donohoe most recently held the role of a sales consultant. 2
[5] The respondent terminated Ms Donohoe’s employment with immediate effect during a telephone call on 29 May 2020. A termination letter was emailed to Ms Donohoe the same day advising:
“I am writing to you to confirm termination of your employment with Quickcomms Australia Pty Ltd.
As discussed on our call this afternoon, Telstra have completed an independent investigation which resulted in conclusive evidence of inappropriate actions on your behalf. Telstra has rigid policies regarding privacy, security and fraudulent activity in place and will not tolerate any infractions, security or privacy breaches. As a result of these findings Telstra has revoked all of your system access effective immediately.
Maintaining access to Telstra systems is critical to being able to perform your role at Quickcomms Australia Pty Ltd, and without this access you are unable to perform the inherent requirements of the role and we can no longer offer you employment effective 29 May 2020.” 3
[6] The respondent relied upon correspondence from a representative of Telstra dated 5 June 2020 to support its decision to dismiss Ms Donohoe. The email states that Telstra identified “unusual activity” by Ms Donohoe, including misrepresenting customer information, unauthorised access of customers’ accounts and impersonating other employees using their staff ID to modify family members’ accounts to add Ms Donohoe’s personal authority. The email advised that Telstra had revoked Ms Donohoe’s access rights to the Telstra system on account of serious breaches to Telstra’s policies. 4
[7] Ms Donohoe contends that upon receipt of the termination letter at approximately 5:42 pm on 29 May 2020, she emailed her lawyer Mr Don Cameron requesting a meeting. 5
[8] On 1 June 2020, Ms Donohoe sought a copy of the Telstra investigation report from Mr Love-Linay. In response, Mr Love-Linay invited Ms Donohoe’s lawyer to email him directly. 6 Ms Donohoe submits that she instructed Mr Cameron the same day to obtain a copy of the investigation report. Mr Cameron wrote to Mr Love-Linay on 3 June 2020 requesting a copy of the report.7 Mr Cameron contends that the investigation report was imperative for him to properly advise Ms Donohoe in respect of her dismissal.
[9] On 5 June 2020, Ms Donohoe said that she enquired with Mr Cameron’s office whether he had obtained the investigation report from the respondent. Thereafter, she said that she made enquiries “every couple of days.”
[10] By letter dated 15 June 2020, the respondent advised Mr Cameron that it “does not and will not have access to” the investigation report from Telstra. 8
[11] Ms Donohoe said that upon contacting Mr Cameron’s office on 16 June 2020, she was advised that no response had been received to the request for a copy of the report. Mr Cameron says that the respondent’s letter was received on 17 June 2020, and that “within a couple of days” or “soon thereafter” he provided a copy to Ms Donohoe. Ms Donohoe says that she received the response letter on 29 June 2020.
[12] On 29 June 2020, Mr Cameron received instructions from Ms Donohoe to lodge an application for unfair dismissal remedy. The next day on 30 June 2020, Mr Cameron’s office sought material from Ms Donohoe in support of the application. This material is said to have been provided by Ms Donohoe the same day.
[13] On 3 July 2020, Ms Donohoe received a draft unfair dismissal application from Mr Cameron’s office. Ms Donohoe signed the application and lodged it with the Commission herself on 3 July 2020.
Extension of time
[14] The 21-day statutory timeframe for filing Ms Donohoe’s application for an unfair dismissal remedy expired at midnight on 19 June 2020. Ms Donohoe’s application was received by the Commission on 3 July 2020. The application was therefore lodged 14 days outside of the statutory timeframe.
[15] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.9In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.
[16] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it 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.
[17] I consider each of these matters below.
Consideration
Reason for the delay: s.394(3(a)
[18] 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. 10 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.11
[19] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 20 June 2020 to 3 July 2020.12 However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.13
[20] Mr Cameron assumed responsibility for the delay. Mr Cameron said that he “probably should have made a forensic decision” to file Ms Donohoe’s unfair dismissal application earlier. He says that the delay was not occasioned by any lack of diligence by Ms Donohoe. Rather, Mr Cameron says that there was “a lot of activity” in his office.
[21] The general propositions to be taken into account in determining whether representative error constitutes an acceptable explanation for delay in the context of an application for an extension of time are as follows: 14
(a) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(b) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(c) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(d) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.
[22] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a representative in a timely fashion. 15
[23] There is no evidence before the Commission that Ms Donohoe instructed Mr Cameron to lodge an unfair dismissal application on her behalf at any time prior to 29 June 2020, during the period of the delay.
[24] Ms Donohoe’s evidence is that absent a copy of Telstra’s investigation report she was uncertain of the reasons for her dismissal and therefore “was not able to provide a proper response.” 16 Accordingly, Mr Cameron was instructed by Ms Donohoe to obtain a copy of the investigation report on 1 June 2020. Following provision of these instructions, Ms Donohoe said that she made enquiries with Mr Cameron’s office on 5, 16 and 25 June 2020 as to receipt of the report. Relevantly, Ms Donohoe had not instructed Mr Cameron to lodge an application for unfair dismissal remedy during this period.
[25] However, the respondent’s advice of 15 June 2020 that it did not have a copy of the investigation report from Telstra was not relayed to Ms Donohoe until 29 June 2020. Notwithstanding this, Ms Donohoe’s evidence in the proceeding was that “I didn’t want to push an unfair dismissal application without a report because we don’t know what’s on the report.” On this evidence, I am not persuaded that had Ms Donohoe received the respondent’s 15 June 2020 advice prior to 29 June 2020, that Ms Donohoe would have instructed Mr Cameron to institute an unfair dismissal application on her behalf at such time. In any case, no such contention is made by Ms Donohoe.
[26] Ms Donohoe provided Mr Cameron with instructions to lodge an unfair dismissal application on 29 June 2020. However, the statutory timeframe for lodgement of Ms Donohoe’s application lapsed at midnight on 19 June 2020. Accordingly, the period between 20 June 2020 (being the first day of the delay) and 29 June 2020 (being the date that Mr Cameron received instructions to institute an unfair dismissal application) cannot be attributed to representative error.
[27] The contention that Ms Donohoe’s application for unfair dismissal remedy could not be lodged in the absence of the investigation report is rejected. Ms Donohoe’s submission does not account for the content of the termination letter which explains the basis for the dismissal. I find that the information contained in the termination letter was sufficient to inform an unfair dismissal application. Indeed, the application was ultimately lodged in the absence of the report.
[28] As to the period after 29 June 2020, Ms Donohoe’s application was in the hands of Mr Cameron’s office. Mr Cameron took no steps to expedite the lodgement of Ms Donohoe’s application upon receipt of her materials on 30 June 2020, notwithstanding the fact that the application was already out of time. A draft application was received by Ms Donohoe from Mr Cameron’s office on 3 July 2020 and lodged by Ms Donohoe the same day.
[29] In these circumstances and having regard to Mr Cameron’s submission that he bears responsibility for the delay, I find that the delay between 30 June 2020 and 3 July 2020 was occasioned by Mr Cameron.
[30] During the proceedings, Ms Donohoe said that she was unaware of the 21-day timeframe for lodgement of an unfair dismissal application. However, ignorance of the limitation period does not constitute an acceptable reason for the delay. 17
[31] I do not find that Ms Donohoe has provided an acceptable explanation for the delay for the period 20 June 2020 (being the first day of the delay) and 29 June 2020 (being the date that Ms Donohoe instructed Mr Cameron to institute an unfair dismissal application). The absence of an acceptable reason for this part of the delay weighs against the grant of an extension.
[32] The finding of representative error for the period from 30 June 2020 does not bear upon the period 20 to 29 June 2020 and does not otherwise outweigh the conclusion reached.
Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)
[33] It is not in dispute that Ms Donohoe became aware of her dismissal on 29 May 2020, being the date that it took effect.
[34] Ms Donohoe therefore had 21 days to lodge her application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.
Action taken by the person to dispute the dismissal: s.394(3)(c)
[35] Following her dismissal, Ms Donohoe scheduled a meeting with Mr Cameron on 1 June 2020. On 3 June 2020, Mr Cameron sought a copy of the investigation report from the respondent on Ms Donohoe’s behalf. Ms Donohoe says that the investigation report was sought so that she could “fairly respond” to the dismissal within a reasonable timeframe. 18 On 5, 16 and 25 June 2020, Ms Donohoe said that she made enquiries with Mr Cameron’s office as to the receipt of the report.
[36] I find that these steps were taken by Ms Donohoe to assist her in deciding whether she would dispute the dismissal. This is supported by Ms Donohoe’s evidence that, “I didn’t want to push an unfair dismissal application without a report because we don’t know what’s on the report.”
[37] This weighs against the grant of an extension.
Prejudice to the employer: s.394(3)(d)
[38] It is not contended that any prejudice to the respondent would arise if an extension of time was granted.
[39] I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. 19 I consider this to be a neutral consideration.
Merits of the application: s.394(3)(e)
[40] The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.20
[41] The respondent submits that it had a valid reason for dismissing Ms Donohoe. It says that she was unable to perform the inherent requirements of her role on account of her credentials being revoked by Telstra.
[42] Ms Donohoe contends that her employment was terminated without warning during the telephone call with Mr Love-Linay on 29 May 2020. She submits that in the absence of a copy of the investigation report, she was unable to fairly respond to the allegations grounding her dismissal. 21 Ms Donohoe contends that in any case, her employment ought not have been terminated by the respondent while she was on workers compensation.22
[43] This proceeding, which is essentially interlocutory in nature, does not enable a fulsome examination of these matters. The parties’ respective contentions have not been tested before me and it is therefore not possible to make any firm or detailed assessment of the merits. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: s.394(3)(f)
[44] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Ms Donohoe or any other person in a similar position.
[45] I consider this to be a neutral consideration.
Conclusion
[46] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time.
[47] Given this, there is no basis for me to allow an extension of time. Ms Donohoe’s application for an extension of time is dismissed. It follows that Ms Donohoe’s application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
D Cameron on behalf of the Applicant.
T Love-Linay for the Respondent.
Hearing details:
2020
Melbourne (by telephone):
July 20.
Printed by authority of the Commonwealth Government Printer
<PR721352>
1 Form F2 – Unfair dismissal application lodged 3 July 2020 (Form F2), 1.5
2 Form F2 at 1.1; Witness statement of Ms Jordan Donohoe dated 13 July 2020 (Donohoe statement) at [3]
3 Attachment B to Form F2
4 Attachment to Form F3 – Employer response to unfair dismissal application filed 16 July 2020 (Form F3), email from Telstra to the respondent dated 5 June 2020
5 Form F2, 1.5 at [3]
6 Donohoe statement at [6]; Form F2, 1.5 at [4]
7 Donohoe statement at [7]; Form F2, 1.5 at [5]; Attachment D to Form F2
8 Form F2, 1.5 at [6]; Attachment E to Form F2
9 [2011] 203 IR 1
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
11 Ibid
12 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]
13 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]
14 Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9; see also C. Davidson v Aboriginal & Islander Child Care Agency, Print Q0784 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [25]; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802 at [18]; Long v Keolis Downer[2018] FWCFB 4109 at [52]
15 Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; see also Long v Keolis Downer[2018] FWCFB 4109
16 Donohoe statement at [8]
17 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]. While this decision relates to an application pursuant to s.365 of the Act, the principle remains apposite
18 Donohoe statement at [9]; Attachment G to Form F2
19 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
20 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]
21 Donohoe statement at [4], [5] and [9]
22 Form F2, 2.1
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