Kay Cooper v South Stradbroke Caretaking Services Pty Ltd T/A Couran Cove Island Resort
[2022] FWC 1859
•29 JULY 2022
| [2022] FWC 1859 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kay Cooper
v
South Stradbroke Caretaking Services Pty Ltd T/A Couran Cove Island Resort
(U2022/2343)
| COMMISSIONER HAMPTON | ADELAIDE, 29 JULY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – reasonable explanation for relatively long delay – all other factors considered – satisfied that exceptional circumstances exist – extension warranted and granted.
What this decision is about
This decision concerns an application by Kay Cooper (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Ms Cooper’s employment with the South Stradbroke Caretaking Services Pty Ltd T/A Couran Cove Island Resort (Respondent) concluded in November 2021. That employment was located on South Stradbroke Island. A letter of dismissal dated 7 November 2021 was provided to Ms Cooper and this indicated that the dismissal took effect on that day. The reason provided for the termination of Ms Cooper’s employment was associated with her alleged unsatisfactory performance. The evidence presently before the Commission is that the termination letter was not provided to Ms Cooper until 11 November 2021 and that she was not informed about the dismissal prior to that date.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 23 February 2022. Although it is not critical to this matter given the overall length of the delay and the explanation provided by Ms Cooper, I have taken 11 November 2021 as the effective date of the dismissal. That is, this is the date that Ms Cooper knew, or at least had a reasonable opportunity to find out, that she had been dismissed. This approach is consistent with that taken by the Full Bench of the Commission in Ayub v NSW Trains.[1]
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). Adopting 11 November 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 2 December 2021.[2] The application was therefore filed over 80 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). Amongst other matters, this request is based upon her personal circumstances in the aftermath of the dismissal, including her location. The Respondent opposes the extension of time request, principally on the basis that there are no exceptional circumstances. The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Ms Cooper participated in the hearing and gave sworn evidence. Mr Horwitz, an external consultant represented the Respondent. Permission was granted to Mr Horwitz under s.596 of the Act.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined that there are relevant exceptional circumstances. I am also satisfied that it is appropriate to grant an extension of time for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
Despite the requirements of the Commission, Ms Cooper did not provide any evidentiary material in advance of the hearing. It became apparent during the hearing that this was the result, at least in part, of Ms Cooper’s (mis)understanding about the nature and purpose of evidence for an extension of time hearing and her personal circumstances.
In the context of what was a relatively comprehensive statement of the explanation for the delay in the Form F2 application, the prior confirmation to both parties that the application would proceed and be heard at the scheduled time, the decision to grant permission to the Respondent to be represented by a person with legal background, and in the absence of objection, I permitted Ms Cooper to provide sworn evidence and enable that evidence to be challenged.
I found Ms Cooper’s evidence about those matters pertaining to the explanation for the delay to have been given open and honestly. I observe that at least in respect to the explanation for the delay, Ms Cooper’s evidence was not substantially challenged. Further, no reasonable basis was suggested to cast doubt upon the Applicant’s evidence about the absence of access to the internet and/or mobile phone access for the duration of her post-dismissal time on the Island. It is not necessary, or appropriate, for the Commission to make findings about the broader circumstances of Ms Cooper’s employment arrangements and dismissal, which remain very much in dispute.
The Respondent did not lead evidence and the relevant officer of the Respondent chose not to attend the hearing. I draw no negative inference from this given the nature of the present proceedings. I am however required to deal with the application based upon the relevant material that is before the Commission.
The events relevant to the explanation for the delay in lodging the application
At the time of her dismissal, Ms Cooper’s employment was located on South Stradbroke Island, Queensland. The Island lies within Moreton Bay south of Brisbane and forms the northern end of the Gold Coast. It is close to the mainland but must be accessed by boat or ferry. Ms Cooper had earlier worked for the employer based on the mainland but with the sudden death of her partner in 2019, Ms Cooper relocated to the Island. Her role involved a variety of functions including responsibilities for the store and ordering and handling of supplies for the facilities of the Respondent on the Island.
Ms Cooper stayed in accommodation provided for her by the Respondent. Ms Cooper had to provide her own internet connection and facilities, at least for private purposes. Ms Cooper also had to pay to travel on the barge to and from the Island when this travel was not associated with her employment.
Upon her dismissal, Ms Cooper was paid some outstanding annual leave entitlements (about 100 hours) over several instalments. There is a dispute about whether this represented all of her leave entitlements; however, I am unable to make any findings about that aspect. There was also a dispute in the hearing as to whether Ms Cooper was paid in lieu of notice of dismissal. The payments made on termination did not expressly include such a payment[4] and it was subsequently confirmed by the Respondent that the payment was not made at that time. This has subsequently been corrected.[5]
The Respondent, permitted Ms Cooper to remain on the Island at the resort after the dismissal, pending her relocation to the mainland.
Ms Cooper initially sought to engage the Respondent’s General Manager about her dismissal but was advised to the effect that there was nothing to discuss. Ms Cooper also sought to engage some of the directors of the Respondent who were on the Island and despite some support, was unable to obtain any change in the decision. This was evident to her a few weeks after the dismissal.
On being advised of her termination, Ms Cooper immediately sought that she be given a separation certificate. This was subsequently followed up with those on the Island with the certificate eventually being provided in late December 2021. The certificate was necessary for Ms Cooper to seek to obtain some payments from Centrelink. Those payments were not ultimately received until March 2022.
Ms Cooper had debts, including payments due on the Island and the payments made on termination were insufficient to enable her to relocate to the mainland or even travel there without some assistance. Ms Cooper had no access to the internet or the capacity to use her mobile phone (due to the absence of funds to pay her phone plan) for the duration of her post-dismissal period on the Island.
In February 2022, Ms Cooper was lent some money and travelled to the mainland where she attended a library with internet services, contacted the Commission, and immediately lodged this application on 23 February 2022. Ms Cooper also subsequently sought and obtained a fee application waiver, which she became aware of only when she was able to make contact with the Commission.
Ms Cooper relocated from the Island when in receipt of the Centrelink payments but is presently living in her car.
Should an extension of time be granted?
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 stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[7]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[8] This 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.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as 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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[9] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
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 for the delay. 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 an applicant’s favour; however, all of the circumstances must be considered on their own merits.[10]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[11] The delay in this matter is over 80 days and this is the focus of the present consideration.
I have made detailed findings about the full explanation provided in the evidence above. The circumstances evident in that explanation, including Ms Cooper’s inability to fund her travel or to obtain access to a method of ascertaining her rights to contest the dismissal or lodge an application for long periods forming the delay, are significant and exceptional. As soon as Ms Cooper had any access to do so, she took immediate steps to make the unfair dismissal application.
I consider this to be a satisfactory or reasonable explanation for the long delay in lodging the application.
This weighs in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Ms Cooper contends in the Form F2 application that she was notified of her dismissal on 11 November 2021. I have found this to be the case. However, I have also proceeded on the basis that the dismissal was not effective until the point that Ms Cooper was informed of the dismissal.
On that basis, this consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
The steps outlined in the Form F2, and in her evidence to approach her employer as discussed earlier in this decision, represent actions taken to contest the dismissal.
The subsequent delay in taking any further action would not support a finding of exceptional circumstances; however, the particular circumstances of Ms Cooper outlined in the explanation more generally are relevant in attaching weight to this finding.
Prejudice to the employer (including prejudice caused by the delay)
The length of the delay is significant, and potential prejudice is likely to be a factor. However, the Respondent has not raised any particular issues of prejudice. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted, but I make some allowance for that prospect.[12]
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[13] Further, the primary consideration is whether the applicant has an arguable case.[14]
There is an apparent dispute about many of the elements of the employment terms and conditions and about most of the events directly leading to the dismissal. Ms Cooper’s case includes propositions that:
·The Zoom meetings that she was required to attend (the failure to attend was relied upon as part of the grounds of termination) were scheduled at times when she was expressly directed to attend to work on the Island’s barge. This was contended to be deliberate given that her manager was aware of the conflict.
·Ms Cooper has provided the receipts for goods purchased by her (using her own credit) on behalf of the Respondent and had not been fully reimbursed. There were some outstanding receipts for goods purchased on behalf of the Respondent using the employer’s credit facility, however these were relatively recent and she was not given any time to do administrative work.
·Ms Cooper was not given any notice of termination or pay in lieu and this was despite the fact that the grounds of dismissal would not represent serious misconduct.
·The dismissal took place in the context of her raising concerns about improper taking of goods and supplies by others and the dismissal was, in effect, procedurally unfair.
Many of the above elements are disputed by the Respondent and I make no findings on these matters for present purposes. The Respondent also contends that it provided free board to Ms Cooper on the Island after the dismissal, and this should be taken into account. I observe that this would be relevant to the overall assessment of the dismissal.
It is not possible to make a definitive assessment of the merits of the unfair dismissal application without hearing robust evidence about the facts of the matter, including from the Respondent. However, I am satisfied that the Applicant has an arguable case at least on elements of her merits case. This is a factor supporting a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
The Respondent raised concerns that granting an extension of time of this duration would encourage others to make late applications. However, each such application is to be determined on its own merits and there are several features of this case that are genuinely exceptional and set it apart from the norm.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
With the exception of the awareness of the dismissal and, at least in part, the (other) steps taken to contest the dismissal – both of which must be assessed having regard to the mitigating circumstances, the other considerations in s.394(3) favour a finding of exceptional circumstances or are, in effect, of neutral significance. All factors must be taken into account and given appropriate weight.
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act and weighed them accordingly, I am satisfied that there are exceptional circumstances. I also consider that the interests of justice require that an opportunity be provided to have the application further considered by the Commission. In that light, it is appropriate that I exercise my discretion to grant an extension of time for the filing of this application and I so Order.
The Commission as presently constituted will shortly convene a conciliation conference to explore the resolution of the matter. If that cannot be achieved, the application will be assigned to another Member of the Commission to hear and determine the matter.
COMMISSIONER
Appearances:
K Cooper, the Applicant on her own behalf.
C Horwitz of EDG Capital, with permission, for the Respondent.
Hearing details:
2022
July 18
Video Hearing.
[1] [2016] FWCFB 5500.
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the Act.
[4] Based on the material provided by the Respondent with its Form F3 response.
[5] Email from the Respondent to the Commission and Ms Copper after the hearing – 22 July 2022.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[9] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[11] Ibid.
[12] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[13] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[14] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
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