Kendal-Rose Horner v P J Event Decorators T/A Decorative Events and Exhibitions
[2019] FWC 5310
•6 AUGUST 2019
| [2019] FWC 5310 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kendal-Rose Horner
v
P J Event Decorators T/A Decorative Events And Exhibitions
(U2019/3305)
COMMISSIONER JOHNS | SYDNEY, 6 AUGUST 2019 |
Application for an unfair dismissal remedy - Jurisdictional objection - Extension of time - Section 394(2) - Exceptional Circumstances.
Introduction
[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an Applicant for an unfair dismissal remedy made pursuant to s 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Ms Kendal-Rose Horner (Applicant) a further period for lodging her application for an unfair dismissal remedy. It is necessary to decide the same because Ms Horner’s completed application was lodged with the Commission on 22 March 2019, that being 35 days after her employment was terminated by P J Event Decorators (Respondent) on 15 February 2019. Consequently, her application was filed 14 days after the 21 day time limit outlined within the FW Act.
The jurisdictional objection
[3] On 19 June 2019, shortly prior to the conduct of a mention/directions hearing, the Respondent lodged a Form F3. Within its F3, the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than 21 days after the dismissal took effect.
[4] Following the mention/directions hearing the matter was programmed for a jurisdictional hearing on 30 July 2019.
[5] There was also a dispute about the effective date of dismissal. Accordingly, the parties were asked to address that issue in addition to the criteria in s 394(3) of the FW Act.
Legislative scheme
[6] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
“394 Application for unfair dismissal remedy
…
(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.”
[7] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 4
Facts leading up to and relating to the dismissal
[8] The following matters are common ground between the parties or not substantially contested:
a) On 9 January 2017 the Applicant commenced employment with the Respondent.
b) The Applicant earned $70,000 per annum. The Applicant was sponsored for a working Visa by the Respondent.
c) On 14 November 2018 the Applicant resigned from her employment. She gave notice in accordance with her contract. She was due to cease employment on 11 January 2019.
d) On 11 January 2019 the meeting took place between the Applicant and the Managing Dir/Co-owner of the Respondent. It was agreed that the applicant would take a period of extended leave during which time she would prepare a proposal for the Respondent to consider in two weeks’ time.
e) Consequently, the Applicant withdrew her resignation.
f) The primary purpose for the withdrawal of the resignation was to ensure that the Respondent was not obliged to notify the Immigration Department about the cessation of employment.
g) Notwithstanding the withdrawal the resignation a farewell party was held for the Applicant on 11 January 2019.
h) Between 11 January 2019 and 1 February 2019 the Applicant worked on the proposed presentation during her annual leave. The Respondent has agreed to make an additional payment to the Applicant in respect of the hours she worked to prepare the presentation.
i) On 1 February 2019 the Applicant presented the proposal to the Managing Directors and the wider senior leadership team including her direct manager and a representative from the human resources department. A discussion ensued about when the Applicant could return to work. The Applicant suggested May as an option.
j) At all times the Applicant made it known to the Respondent that unless her proposal was accepted she did not wish to continue working with the Respondent.
k) There was intended to be a meeting on 6 February 2019 to further discuss the proposal but the meeting was cancelled.
l) On 7 February 2019 the Applicant was asked to return her laptop. As at this date the Applicant had still not had a reply to her proposal.
m) On 8 February 2019 the applicant returned her laptop.
n) On Saturday, 9 February 2019 the Applicant sent a follow-up email to the HR Advisor to determine whether she would be working a few days the following week. The Applicant suggested she put together a thorough handover in preparation for, what she expected to be, a period of extended leave.
o) On 11 February 2019 the Applicant received a text message from the HR Advisor asking her to come into the office the following day to complete handover.
p) On 12 February 2019 the Applicant was unable to attend the office due to illness. The manager asked her to come into the office on Friday, 15 February 2019.
q) On 13 February 2019 the Applicant sent an email to the HR Advisor again following up on the presentation and seeking clarity about, what she understood was, an agreed period of extended leave. The HR Advisor did not respond.
r) On 14 February 2019 the Applicant’s manager confirmed the meeting for 15 February 2019.
s) On 15 February 2019 the Applicant attended the office at 10 AM for a handover meeting. At 12 noon she met with her manager and presented handover information. The Applicant completed other tasks as assigned following the meeting.
t) At about 5.00 pm on 15 February 2019 the Applicant’s manager asked to meet with the Applicant privately. The Applicant was advised that the Respondent would not be proceeding with the Applicant’s proposal. She was advised that she had been replaced in her role as the Product Development Manager by an external candidate. The Applicant’s manager thanked the Applicant for her hard work and sought the return of company property. The Applicant left the office.
u) Later that day the Applicant sent an email to the HR Advisor about the conversation she had had with her manager. The Applicant wrote,
“Hi Chantel,
I have just walked out of DE&E and have been advised as I was walking out the door by Jen that the proposal I put forward is no longer progressing and someone has been appointed in my role.
Whilst I understand that the presentation I put forward was just at proposal stage, i withdrew my letter of resignation so I still currently stand as an employee of DE&E.
Please refer back to your email in response to my retraction of my notice. Therefore based on these communications, I’d like to understand the legal and ethical grounds this dismissal falls under.
I am aware you’re on holiday but if you do see this, I’d like it to be actioned ASAP.
Look forward to hearing from you.”
v) The Applicant received an “out of office” reply indicating that the HR Advisor would be returning to work on Monday, 25 February 2019. The Applicant decided to wait for the return of the HR Advisor.
w) On 25 February 2019 the HR Advisor returned to work. The Applicant decided to allow her one week to respond to the email that the Applicant had sent to her on 15 February 2019.
x) On 28 February 2019 the Applicant received a pay slip from the Respondent. It recorded no payment being made to the Applicant.
y) On 1 March 2019 the Applicant noticed that she ceased to have access to work emails on her mobile phone.
z) Between 1 – 22 March 2019 the Applicant was on a pre-booked holiday.
aa) On 22 March 2019 the Applicant discovered via LinkedIn that she had been replaced in her position in March 2019.
Exhibits
[9] In coming to this decision, the Commission, as presently constituted, has had regard to all of the evidence, marked as the following exhibits at the hearing of 30 July 2019:
a) Exhibit 1 - Form F2 – Unfair Dismissal Application
b) Exhibit 2 - Form F3 – Employer response to unfair dismissal application
c) Exhibit 3 - Applicant’s Outline of Argument, filed 3 July 2019
d) Exhibit 4 - Applicant submissions addressing s 394(3) ,filed 3 July 2019
e) Exhibit 5 - Applicant’s Evidence Summary 1 – 6, filed 12 July 2019
f) Exhibit 6 - Respondent’s Response, filed 23 July 2019
g) Exhibit 7 - Respondent’s submissions addressing s 394(3) filed, 23 July 2019
h) Exhibit 8 - Email sent to Respondent 15 February 2019, filed 30 July 2019
i) Exhibit 9 - Applicant’s uncontested version of the conversation she had with her manager ‘Jen’ on 15 February 2019, filed 30 July 2019
[10] Regard has also been had to the evidence adduced at the hearing on 30 July 2019.
When did the dismissal take effect?
[11] There is a dispute about when the dismissal took effect. The Applicant states that it occurred on 1 March 2019. The Respondent states that it occurred on 15 February 2019. This is an important matter because if the Applicant is correct, her application for an unfair dismissal remedy is not out of time.
[12] On 3 July 2019 the Applicant filed a witness statement. In summary the Applicant states:
“… I was neither made redundant nor fired, no written notice was given informing me on my contract ending and all matters were dealt with in a non-professional, unreasonable and uncommunicative manner.
…
the matter comes with a lot of grey areas, unexplained actions and confusion which has opened up an argument of when the dismissal took place.
It was to my understanding that between the dates of Monday 14th January to the 1st March when my email password was changed, I was on extended leave.
…
Whilst I did have a discussion on the 15th February with my direct manager Jen which left areas unexplained and resulting in me vacating the premises extremely confused, I allowed a period of time for my employer to communicate further what was happening considering I was not given any formal documentation at the time of the discussion to say that my contract had now ended.
…
From the 15th February onwards, I believed I was still on extended leave awaiting further direction. I continued to receive pay slips and then my email password changed on the 1st March. It was at this point I knew it was unlikely I would now hear from my employer and after careful consideration, chose to submit my Unfair Dismissal application.” 5
[13] At all times the Respondent maintained that the termination of employment occurred on 15 February 2019.
[14] While I accept that the Respondent never provided the Applicant with a written notice of termination, having regard to all the evidence, I find that the dismissal took effect on 15 February 2019.
[15] This is because, although it may have been preferable for the Respondent to confirm in writing the effect of the conversation that occurred between the Applicant and her manager on 15 February 2019, it was not necessary for the Respondent to do so to ensure that the dismissal became effective on that day. It is very clear from the words used by the Applicant’s manager 6 that the employment relationship had come to an end.
[16] Further, having regard to the email that the Applicant sent to the HR Advisor later that day it is also apparent that the Applicant understood that her employment had been terminated. In the email she writes “I’d like to understand the legal and ethical grounds this dismissal falls under.” Accordingly, the Applicant may not have understood how the dismissal could be legal or ethical; it is the case that she understood that a dismissal had taken effect. She effectively conceded the same during the hearing. 7
[17] Consequently, I find that the Applicant’s application for an unfair dismissal remedy was out of time.
Consideration of s 394(3) criteria
[18] Having found that the effective date of dismissal was 15 February 2019, I must now determine whether exceptional circumstances arise which support granting an extension for the Applicant to lodge her unfair dismissal application past the 21 day time limit. In doing so, I am to take into account the factors outlined within s 394(3) of the FW Act.
Section 394(3)(a) – The reason for the delay
[19] It is undisputable that there were 35 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. That is to say the application was 14 days late.
[20] The Applicant submitted that:
“The main reason for the delay to submit the application was down to the nature of the whole matter. The diminishing to zero communication meant I was left bewildered and what the conversation taken place on the 15th February meant for me. As far as I was aware, at the time of conversation I was still an employee of Decorative Events & Exhibitions on extended leave. I took the time post the conversation to await further communication and direction from HR which I never received.” 8
[21] The Respondent submitted that:
“Within Kendal’s initial unfair dismissal application submitted on the 23rd March please refer to Point 22: it is stated that the 1st March – 12th March Kendal had a pre-booked holiday to New Zealand. To which she then required the 12th – 22nd March to collate a timeline of events in order to submit an unfair dismissal claim. This was presented as the reason for a delay in submitting her application for unfair dismissal.” 9
[22] While I accept that the failure of the Respondent to confirm the termination of employment in writing and the generally non-communicative nature of the HR Advisor might be deemed unprofessional, I do not accept that it left the Applicant not knowing that her employment had been terminated on 15 February 2019. She may well have been “bewildered” about how the termination could be lawful it does not provide grounds for finding that there was an exceptional circumstance in the present case is not out of the ordinary course, or unusual, or special, or uncommon that an employee having been terminated in their employment would feel bewildered. Rather it is likely to be regularly, or routinely, or normally encountered.
[23] Notwithstanding the clear words used by the Applicant’s manager on 15 February 2019 the Applicant preferred to give the HR Advisor time to return from her leave and then a further week to respond to the email that the Applicant sent immediately following the termination of her employment. The Applicant might be considered polite in allowing the HR Advisor time to respond to the email, but it nonetheless meant that the Applicant lost precious time in which she could have filed her unfair dismissal application within time. In order for the unfair dismissal application to be filed within time it should have been filed on or before 8 March 2019. However, on 1 March 2019 (when the Applicant noticed that her mobile phone access to work emails had ceased) the Applicant went on holidays. The fact that the holiday was pre-booked is not an exceptional circumstance.
[24] Therefore this factor weighs against granting the Applicant a further period to make her application.
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
[25] The Applicant submitted that:
“I do not believe I was made fully aware that a dismissal had taken place. I was advised the proposal was not proceeding and someone had been appointed into my position but little information was given and no mention of my contract or visa had been mentioned at the time of conversation. In fact, I was told HR would be in touch to discuss everything further as they knew I was on a visa and it would need to be sorted. I didn’t want to wait and immediately reached out to HR via email.” 10
[26] At the hearing on 30 July 2019, the following exchange took place about when the dismissal took effect and Ms Horner’s awareness of the dismissal,
THE COMMISSIONER: Most people would understand that as being a termination of their employment. Are you honestly telling me you didn't understand that you had been terminated on that day?
MS HORNER: Yes, I do agree there is a – that does say you are dismissed here and there, but because there were so many other things to think about and the fact that I was on extended leave, I was on a Visa and all of that, I didn't fully understand that – I didn't understand how my role had come to an end when it actually couldn't legally. I understand that was the conversation but that's not how I saw as my (indistinct). 11
[27] The Respondent submitted that:
“Kendal was advised of dismissal on the15th February 2019 due to the fact that the business would not be proceeding with her proposal. Kendal had advised Human Resources and the Managing Director that she would not remain at Decorative Events if the proposal was not accepted through the proposal process. It is the companies view is that the date of termination is in fact the 15th February 2019.” 12
[28] I have determined that the effective date of termination was 15 February 2019. I have also previously indicated that it must have been the case that the Applicant knew her employment was terminated on that day following the conversation that she had with her manager.
[29] Therefore this factor weighs against granting the Applicant a further period to make her application.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
[30] The Applicant took the following action to dispute the dismissal:
a) Writing an email to Ms Chantel Warren, Human Resources Advisor of the Respondent on 15 February 2019 seeking to understand how the termination of her employment could be legal;
b) Filing the present application.
[31] The Applicant submitted:
“I immediately emailed HR post the conversation on the 15th February asking for the conversation to be explained further as I was utterly confused where I stood given that I had withdrawn my resignation and was on extended leave.” 13
[32] Noting that the email that the Applicant sent to the HR Advisor on 15 February 2019 indicated an awareness that she had been dismissed in her employment, it is curious the Applicant took no further action until she filed the present application out of time. In circumstances where the Applicant was receiving no response from the HR Advisor it is difficult to understand why she was not prompted to take action earlier. If she had filed her application for an unfair dismissal remedy even a week after when she knew the HR Advisor was returning from annual leave it would have been in time.
[33] The lack of action taken by the Applicant after 15 February 2019 weighs against granting her a further period to make her application.
Section 394(3)(d) – Prejudice to the employer (including prejudice caused by the delay)
[34] Neither the Applicant nor the Respondent addressed this factor in their respective submissions. At the hearing the Respondent conceded that there was no prejudice to the Respondent. 14 In any event, I find that the prejudice to the Respondent is a neutral consideration in relation to granting the Applicant a further period to make her application.
Section 394(3)(e) – The merits of the application
[35] In the matter of Kornicki v Telstra-Network Technology Group 15the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit.” 16
[36] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[37] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[38] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the dismissal and whether the Applicant was afforded procedural fairness. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[39] If the Applicant can establish to the satisfaction of the Commission that:
a) there was no valid reason for the dismissal (something the Respondent could not coherently articulate at the jurisdictional hearing 17), and/or,
b) she was not afforded procedural fairness (something the Respondent conceded at the jurisdictional hearing 18), and/or
c) she was not provided with an opportunity to respond (something the Respondent conceded at the jurisdictional hearing 19), and/or
d) no opportunity to dissuade the Respondent from terminating her employment (something the Respondent conceded at the jurisdictional hearing 20),
then the Applicant may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of s 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[40] Having explored these matters with the Respondent during the jurisdictional hearing it does appear, more likely than not, that the Applicant was unfairly dismissed. At no time during her employment were any issues raised with her about her performance or her conduct. In circumstances where the Applicant had resigned, but withdrew her resignation at the request of the Respondent in order for her to prepare a proposal at its request, the manner of the termination was indecent. For a period of time the Applicant was kept in the dark about the prospects of her proposal. The HR Advisor, Chantel, Warren, was, most of the time, missing in action. If a substantive hearing was to be conducted it is difficult to see how there would not be a finding that the termination was harsh, unjust or unreasonable.
[41] However, for present purposes I need to find now more than that the Applicant’s case is not one that is without merit or lacking in any substance.
[42] Because the Applicant’s case is not without merit or lacking in any substance this factor strongly weighs in favour of granting her a further period to make her application.
Section 394(3)(f) – Fairness as between the person and other persons in a similar position
[43] The parties agreed within submissions 21 that this factor was not relevant. Therefore, this factor is a neutral consideration when it comes to deciding whether to grant the Applicant a further period to make her application.
Conclusion
[44] When all of the s 394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.
[45] For the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).
[46] An order [PR710865] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms Kendal-Rose Horner on behalf of herself
Ms Chantel Warren, Human Resources Manager, for the Respondent
Hearing details:
30 July 2019
Sydney
Printed by authority of the Commonwealth Government Printer
<PR710864>
1 Fair Work Act 2009 (Cth) s 394(2)(a) (‘FW Act’); Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s 36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
2 Ibid s 394(3)
3 [2011] 203 IR 1
4 Ibid [13]
5 Exhibit 3
6 See uncontested version of the conversation provided by the Applicant (Exhibit 9)
7 Transcript PN26; PN32; PN34
8 Exhibit 4
9 Exhibit 7
10 Exhibit 4
11 Transcript, PN25 – PN 26
12 Exhibit 7
13 Exhibit 4
14 Transcript, PN87 – PN88
15 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C
16 Ibid
17 Transcript PN91 – PN112
18 Transcript PN116
19 Transcript PN118
20 Transcript PN119 – PN128
21 Exhibit 4; Exhibit 7
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