Joyce Isbester v Stolz Furnishers Pty Ltd

[2020] FWC 5219

[2020] FWC 5219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joyce Isbester
v
Stolz Furnishers Pty Ltd
(U2020/10942)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 SEPTEMBER 2020

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Ms Joyce Isbester (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). The Applicant’s employment with Stolz Furnishers Pty Ltd (Respondent) was terminated on 28 March 2020 for reason of redundancy brought about by a downturn in business associated with the COVID-19 pandemic. The unfair dismissal application was lodged on 12 August 2020, some four and a half months after the dismissal. 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 Applicant asks the Commission to grant a further period.

[2] 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’. The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where it was noted that, in 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. The Full Bench also noted that 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.

[3] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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.

[4] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission 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.

[5] I now consider these matters in the context of the present application.

Reason for the delay

[6] The Act does not specify what reason for delay might tell in favour of an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. Such an explanation will usually weigh in favour of an extension of time. The absence of one will usually weigh against an extension. But all of the circumstances must be considered.

[7] The Applicant said that the reason for her delay in lodging her application was that she had believed that she would be reemployed. She said that on the day of her dismissal, Mr Stolz, the Respondent’s director, told her that he might be able to reemploy her when the COVID-19 pandemic was over. The Applicant said that she was hopeful that the company would make arrangements for her to receive JobKeeper payments. Two weeks after her dismissal, the Applicant contacted Mr Stolz and asked him whether money that the company had deposited into her bank account was a JobKeeper payment. Mr Stolz replied that it was the payment of her accrued long service leave. The Applicant said that she was stunned. She said however that she continued to believe that she would or might be reemployed, because when she visited the store in the first month after her dismissal, her former manager told her that he needed her. She also remained in possession of the keys to the store, and it was only when she was asked to return them on 12 July 2020 that she realised that she would not be reemployed. Mr Stolz gave evidence that he had not known that the Applicant had kept her keys, and that this had been an oversight. The Applicant also said that she is an anxious person and suggested that this contributed to the delay. No medical evidence was presented.

[8] I do not consider these matters to be an acceptable or reasonable explanation for the delay. The Applicant understood that her employment had been terminated on 28 March 2020. It was her choice to wait and see whether she would be rehired before filing her application. Further, Mr Stolz merely expressed the hope of reemploying her. There was no basis for the Applicant to expect that she would be reemployed. I do not consider the comments of the Applicant’s former manager to be significant, as it was evidently not for him to decide whether she would be reemployed. The fact that the Applicant retained a set of keys did not provide a reasonable basis to expect that she would be reemployed. I do not consider Ms Isbester’s stunned reaction to not receiving JobKeeper payments reasonably accounts for the delay. Nor is there evidence that her anxiety prevented or impeded her lodging the application within the 21 day period. In my view, there was no acceptable or reasonable explanation for the delay. This weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[9] The Applicant was notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge the application. This is a neutral consideration.

Action taken to dispute the dismissal

[10] The Applicant did not take any action to dispute the dismissal. This is a neutral factor.

Prejudice to the employer

[11] No prejudice would accrue to the Respondent if an extension were granted. However, to the extent this favours an extension of time, I attribute little weight to it.

Merits of the application

[12] The Act requires me to take into account the merits of the application in considering whether to extend time. The contentions of the parties on the merits are set out in the materials that have been filed and I do not repeat them here. Briefly, the Applicant’s role was made redundant following a business downturn as a result of the COVID-19 pandemic. Mr Stolz gave evidence that the Applicant’s position was one of four that he had to make redundant. The Applicant contends that her position was still needed. She says that her dismissal was in any event harsh because she was dismissed over the telephone, and because she could have been put on JobKeeper. The Respondent concedes that the application may have some merit, as there may have been flaws in the redundancy process. In my view, the merits of the application would turn on contested points of fact. It is not possible to make any firm or detailed assessment, but on balance, I consider the merits to tell marginally in favour of an extension.

Fairness as between the person and other persons in a similar position

[13] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Isbester and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[14] Having regard to the matters I am required to take into account under s 394(3), I am not satisfied that there are exceptional circumstances. In my view, the circumstances of this case are not exceptional, either individually or when considered together. I decline to grant an extension of time under s 394(3). Accordingly, Ms Isbester’s application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

J. Isbester for herself

G. Calderonfor Stolz Furnishers Pty Ltd

Hearing details:

2020
Melbourne
22 September

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 1   [2011] FWAFB 975