Kathryn Jude v Karingal St Laurence Limited
[2022] FWC 524
| [2022] FWC 524 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kathryn Jude
v
Karingal St Laurence Limited
(U2022/1161)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 9 MARCH 2022 |
Application for an unfair dismissal remedy – application filed 2 days out of time –circumstances not exceptional – extension not granted – application dismissed.
On 27 January 2022, Ms Kathryn Jude made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Jude’s unfair dismissal application is Karingal St Laurence Limited T/A genU (Karingal).
There is no dispute that on 4 January 2022, Ms Jude was informed verbally and then in writing that her employment would be terminated with immediate effect. 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). Ms Jude therefore had until midnight on 25 January 2022 to make an unfair dismissal application. The Form F2 – Unfair Dismissal Application dated 25 January 2022 (Form F2) was filed with the Commission by way of email sent at 10:42am on 27 January 2022. As such, Ms Jude’s unfair dismissal application was made two days out of time.
I conducted a Determinative Conference on 8 March 2022. Ms Jude gave evidence and made submissions. Ms Lily Stefanovic (People and Culture Business Partner) gave evidence and made submissions on behalf of Karingal. An application from Karingal pursuant to s.596 of the Act for permission to be represented by a lawyer was not granted.
Legislation
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, 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.[1] 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.[2]
Section 394(3) 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;
(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. I now consider these matters in the context of Ms Jude’s application for an extension of time.
Reason for the delay – s.394(3)(a)
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 the circumstances must be considered.[3]
Ms Jude said she first thought about making an unfair dismissal application as soon as she walked out of the 4 January 2022 meeting with Karingal at which her employment was terminated. It was not until Saturday 22 January 2022, when reviewing the Commission’s website for the first time since her dismissal, that Ms Jude says she first became aware of the 21-day period for making an unfair dismissal application. Ms Jude then miscalculated how the 21-day period operates by forming the view that the day her dismissal took effect was 5 January 2022, instead of 4 January 2022. Ms Jude did not realise that 5 January 2022 would be counted as part of the 21 days and instead thought the count of 21 days would start on 6 January 2022 and finish on the 26 January 2022 public holiday for Australia Day. Operating on this assumption, Ms Jude reasoned that filing the Form F2 on the day after the Australia Day Public holiday (27 January 2022) would be within time.
Having completed the Form F2 on 25 January 2022, Ms Jude initially thought she had filed her unfair dismissal application that same day by email. However, she realised she had not done so when subsequently checking her ‘outbox’. Then, upon re-reading the information regarding the 21-day period, Ms Jude still thought she was within time and because the next day was the Australia Day Public holiday, she waited until 27 January 2022 to file.
Ms Jude also says she experienced great stress during the period both prior to and following her dismissal on 4 January 2022. In particular, she outlined that she and her children left their home due to family violence on 27 December 2021, returned home on 16 January 2022 and that it had been recommended she apply for an intervention order against her partner.
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 25 January 2022. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for (in this case) the two-day delay, or any part of that delay, beyond the 21-day period.[4]
Stress and anxiety from a dismissal itself are not unusual and nor are shock and a degree of trauma uncommon reactions. However, stress and trauma because of the domestic circumstances confronting Ms Jude is of a different category and I accept this provides a wholly acceptable explanation for the inaction in relation to an unfair dismissal application during the period from 5 January 2022 to 16 January 2022, when Ms Jude returned home. I am also prepared to accept that then taking until 22 January 2022 before starting any research regarding the filing requirements for an unfair dismissal application was also acceptable.
However, Ms Jude was aware of the 21-day time period for filing from 22 January 2022 onwards and having been capable of completing the Form F2 within time, she demonstrated she was capable of filing within time. Ms Jude however made a series of mistakes in failing to file her application before 27 January 2022 by:
a)failing to send the email that would have filed the application on 25 January 2022;
b)deciding against filing via email on the Australia Day Public holiday, seemingly because she assumed her application could not be lodged on that day;[5] and
c)incorrectly interpreting how the 21-day period is calculated.
While I accept Ms Jude may not have had prior experience with unfair dismissal laws and processes and dealing with the Commission, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application[6] and unfamiliarity is not exceptional. As such, I am not persuaded that Ms Jude has provided reasonable explanation for why it took her another two days after 25 January 2022 to lodge her application with the Commission.
Having regard to the evidence before me, I do not consider there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 2-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the 2-day delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
It is not in dispute, and I am satisfied that Ms Jude was aware she was dismissed with immediate effect on 4 January 2022 and therefore had the benefit of the full period of 21 days to lodge her unfair dismissal application. This is therefore a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[7] I am persuaded Ms Jude argued against her dismissal when it was raised as a prospect during the final meeting with Karingal on 4 January 2022, submitting there were mitigating circumstances, that she had an otherwise unblemished employment record and suggesting a demotion instead. I also note that following her dismissal, Ms Jude sent an email to the Chief Executive Officer of Karingal apologising for her conduct and requesting an alternate sanction. I am therefore satisfied that Ms Jude took action to dispute her dismissal. Accordingly, this factor weighs in favour of a finding that there are exceptional circumstances but not to any significant degree.
Prejudice to the employer – s.394(3)(d)
Neither party submitted there was any prejudice to Karingal including prejudice caused by the delay and I cannot identify any greater prejudice that would accrue to Karingal caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.394(3)(e)
I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
Karingal submits there was a valid reason for dismissal relating to Ms Jude’s conduct, in that she breached company policy by allowing and facilitating a third party unknown to it to enter and remain unsupervised on its premises on a Saturday evening without authorisation or approval, and that she was initially dishonest regarding the circumstances. Ms Jude did not dispute the allegations levelled at her during the meeting on 4 January 2022, although she suggested that some of her answers during that meeting arose out of confusion. She also argues that she was facing extenuating circumstances at the time and was attempting to help a family member in a crisis situation.
Ms Jude also argues that the process adopted by Karingal, whereby it issued her with a show cause letter on her final day of work before commencing some annual leave and then terminated her with immediate effect in a meeting on the day of her return, was unfair. As regards these matters, Karingal’s position is that Ms Jude was notified of the reasons for her dismissal, verbally and in writing and that she was given an opportunity to respond to the allegations at the meeting on 4 January 2022 with a support person present. It also argues that Ms Jude made a series of admissions at this meeting.
Ms Jude says that she raised the issue of her personal circumstances at the outset of the meeting on 4 January 2022. She submits that the incident that led to her dismissal was her first in 14 years of employment, such that a different outcome, a written warning for example, might have instead been adopted, in recognition of her length of service and the admissions she had made. Karingal argues that despite it having a valid reason to dismiss Ms Jude for serious misconduct with immediate effect, it nonetheless provided Ms Jude with a statement of service which did not disclose her dismissal and payment in lieu of four weeks’ notice.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[8] Based on the material before me, I am not able to form a concluded view about the merits of the application. Karingal has an arguable defence to the unfair dismissal application and Ms Jude raises various matters in prosecuting the harshness of her dismissal. I do not however consider the merits to tell for or against an extension of time. They are a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
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) 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. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[9]
Having regard to and having weighed each of the matters I am required to take into account under s.394(3), and then having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Ms Jude’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms K Jude on her own behalf.
Ms L Stefanovic for Karingal St Laurence Limited.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
March 8.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] while an application can still be made to the Commission on the day after a weekend or public holiday if the final day of the 21-day period falls on that weekend or public holiday (see Acts Interpretation Act 1901 (Cth) s.36(2) which, as in force on 25 June 2009, applies by virtue of s.40A of the Fair Work Act 2009) this was not the case in this proceeding because the final day was 25 January 2022.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[9] [2018] FWCFB 901.
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