Kim Masters v Agility Staffing

Case •

[2024] FWC 2779

•

4 OCTOBER 2024
[2024] FWC 2779

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kim Masters
v

Agility Staffing

(U2024/9942)

COMMISSIONER SCHNEIDER

PERTH, 4 OCTOBER 2024

Application for an unfair dismissal remedy

  1. Ms Kim Masters (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Agility Staffing (Respondent).

  1. The Respondent has objected to the application on the ground that the application is out of time.

  1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

  1. Section 394(2) of the FW Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

The hearing

  1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

  1. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

Witnesses

  1. The Applicant gave evidence on her own behalf.

  1. The following witnesses gave evidence on behalf of the Respondent:

·Ms Kim Siddle (Recruitment Consultant)

Submissions

  1. The Applicant filed submissions in the Commission on 19 September 2024. The Respondent filed submissions in the Commission on 25 September 2024.

When did the dismissal take effect?

  1. It is not in dispute, and I so find, that the dismissal took effect on 28 June 2024.

When was the application made?

  1. It is not in dispute, and I so find, that the application was made on 26 August 2024.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. As I found above, the dismissal took effect on 28 June 2024. The final day of the 21 day period was therefore 19 July 2024 and ended at midnight on that day. As I found above, the application was made on 26 August 2024. 

  1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

  1. Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   whether the Applicant first became aware of the dismissal after it had taken effect; and

(c)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

  1. I set out my consideration of each matter below.

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 19 July 2024. The delay is the period commencing immediately after that time until 26 August 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

  1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

Submissions & Evidence

  1. The Applicant submitted that the delay was for the following reasons:

·Ms Kim Siddle (Recruitment Consultant) of the Respondent verbally advised the Applicant that as a casual employee she was not eligible to make an unfair dismissal claim.  

·The Applicant submitted that the incorrect and misleading information provided by Ms Siddle was the primary reason for her delay in filing her application with the Commission.

·The Applicant also noted that on her separation certificate from the employer, the reason provided for her termination was “end of contract”. The Applicant submitted that this reason is not correct.  

  1. In relation to the reason for the delay, the Respondent made the following submissions:

·     The Respondent provided a redacted copy of an email sent by their client on 27 June 2024, confirming that the Applicant would no longer be required after 7 July 2024. From the email it would appear as if the client had returning permanent staff of their own who had been accommodated back into the workforce. 

·     The Respondent also provided a copy of an email sent by the Applicant on 1 July 2024 which confirmed that the Applicant had decided to not work out the final week and had finished her employment on 28 June 2024.  

·     A copy of the Fair Work Information Statement which had been provided to and signed by the Applicant on 28 March 2022. 

  1. Ms Kim Siddle provided a statutory declaration which stated the following:  

“I declare that at no time did I state, tell, or in any way imply that The Applicant was not entitled to make a claim for Unfair Dismissal due to the fact that they were a casual employee”.  

“I further declare that at no time did I make any representations, express or implied, to the effect that The Applicant’s employment status as a casual employee would preclude or limit their ability to make an Unfair Dismissal Claim”  

  1. Having considered the submissions and evidence from the parties in relation to the employment separation certificate. I accept that the reason provided by the Respondent for using the term end of contract was done by the Respondent to reflect the Applicant’s assignment with the host employer had come to an end, rather than for some other nefarious reason.

  1. It is evident that the Applicant and Ms Siddle had different recollections in relation to the phone call of 28 June 2024. It is understandable that this call would have been distressing for not only the Applicant but also Ms Siddle. Having heard from both the Applicant and Ms Siddle, I find that Ms Siddle’s version of the phone call to be more reliable and consistent. My primary reason for this is outlined in the following paragraphs.  

  1. I agree with the point raised by Mr Jack of the Respondent in cross examination of the Applicant. In previous submissions prior to the hearing the Applicant made no reference to Ms Siddle making any reference to the “end of contract” during the phone call of 28 June 2024. However, on the day of the hearing the Applicant alleged that Ms Siddle advised the Applicant she could not make an unfair dismissal application because she was a casual employee, and it was the end of contract.

  1. Having reviewed the previous submissions of the Applicant in her emails of 9 September 2024 and 19 September 2024, the Applicant states that Ms Siddle told her she could not apply for unfair dismissal as she was a casual employee. There was no reference to Ms Siddle having made any comment about the end of contract being a reason the Applicant could not file for unfair dismissal. From the submission made previously by the Applicant the end of contract position was only raised in relation to her separation certificate not in relation to any alleged comment made by Ms Siddle on the 28 June 2028.

  1. Having considered this inconsistency in the submissions and evidence of the Applicant, I find that the evidence of Ms Siddle to be more credible.

Findings

  1. Having regard to the above, I find that the reasons for the delay were not exceptional. 

Did the Applicant first become aware of the dismissal after it had taken effect?

  1. It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

  1. The Applicant submitted as outlined earlier in this decision that she took action to dispute the dismissal by raising questions in relation to her eligibility to make an unfair dismissal application with Ms Siddle of the Respondent.

  1. Having considered the submissions and evidence, I have concluded that the Applicant did not take any meaningful action to dispute the dismissal directly with her employer prior to filing the application on 26 August 2024. 

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

What are the merits of the application?

  1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

  1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).

  1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. 

  1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

  1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a)   the reason for the delay, being understandable however not exceptional;

(b)   the Applicant being aware of the dismissal at the time that it took effect;

(c)   the absence of any substantive action being taken by the Applicant to dispute the dismissal prior to making the application;

(d)   the absence of any prejudice to the employer;

(e)   the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f)    no issue of fairness arising as between the Applicant and other persons in a similar position.

  1. 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.[7] 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.[8]

  1. The submission of the Applicant was that she was provided with misleading or incorrect information on 28 June 2024 by a representative of the Respondent, as I have decided previously in this decision, I am not satisfied that this occurred during the phone call of 28 June 2024. Therefore, I find there are no exceptional circumstances that warrant an extension of time being allowed for filing and the application must be dismissed.

  1. I also note that even if I was satisfied that the delay in filing the application had been caused by the Respondent’s representative providing incorrect information, I am not satisfied that an extension of time should be granted.

  1. The Applicant admitted that she continued to do her own research following the phone call of 28 June 2024 in relation to her eligibility to file an unfair dismissal application, however the Applicant did not provide any substantive evidence that explains why she took until 26 August 2024 (5 weeks after the 21-day filing period had finished) to file her application other than for allegedly receiving incorrect information on 28 June 2024.

  1. If the Applicant doubted the accuracy of the alleged information the responsibility was with the Applicant to seek out the correct information and file, her application in a timely manner. I do not accept that it would take more than eight weeks to research the accuracy of the information provided and file an unfair dismissal claim.

  1. Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

Conclusion

  1. Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[9]

COMMISSIONER

Appearances:

K Masters for the Applicant.
A Jack of Agility Staffing for the Respondent.

Hearing details:

2024.
Perth (by video).
4 October.


[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] PR779987.

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