Kylie Degenaar v Wellpark Holdings T/A ERGT Training

[2019] FWC 1705

[2019] FWC 1705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Degenaar
v
Wellpark Holdings T/A ERGT Training
(U2019/595)

COMMISSIONER WILLIAMS PERTH, 20 MARCH 2019

Termination of employment - jurisdiction - extension of time.

[1] Ms Kylie Degenaar (Ms Degenaar or the Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Wellpark Holdings T/A ERGT Training (the Respondent).

[2] Ms Degenaar was notified of her dismissal on 21 December 2018, and her dismissal took effect that day. This application was made on 20 January 2019.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(3) of the Act allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made, only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s.394 below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.”

[5] Submissions have been provided by Ms Degenaar regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Ms Degenaar submits that the primary cause of her application having been made out of time is that there is a criminal trial to be held on the same matter, that the Respondent claims is the reason for her termination.

[7] Ms Degenaar says that on 12 December 2018, she was charged with breaching a Family Violence Restraining Order (FVRO) and one charge of criminal damage. She appeared in court the following day and a further court date was set down for 11 January 2019.

[8] Ms Degenaar says the upcoming court appearance and needing to gather evidence and information for this was consuming all her time and energy.

[9] Ms Degenaar says it was her belief that it would be best to apply for unfair dismissal after the charges would be dismissed in court, due to the link between one of the alleged breaches of the FVRO and the termination of her employment.

[10] She says she genuinely believed that the best and most successful approach to her unfair dismissal was to wait until the charges were dismissed in the court.

[11] Ms Degenaar has documented on a day by day basis what she did between 25 December 2018, up until 20 January 2019.

[12] On Friday 11 January 2019, she says she attended court and entered a plea of not guilty. The magistrate set a trial date for 29 April 2019.

[13] Ms Degenaar says she had sought legal advice and was dealing with lawyers regarding her police charges and had spoken to them on 9 January 2019, and saw them face to face at the court date on 11 January 2019.

[14] Eight days later when she was catching up with a friend on 19 January 2019, they told her that they thought there was a time period to lodge an unfair dismissal application. She says she immediately read through all the information she could find on the Commission’s website and the following day Sunday, 20 January 2019, completed her unfair dismissal remedy application online and lodged it that day.

[15] Ms Degenaar submits that:

“The exceptional circumstances outlined as the cause of the delay in applying for unfair dismissal, encompasses-the all-consuming stress of facing a criminal trial, the required effort during the 21 day time frame because of the criminal trial, my lack of awareness in the unfair dismissal process as I and almost most people I know have never been dismissed before, and it was my understanding that best way to proceed to prove it as an unfair dismissal was to have it officially dismissed in court.(Sic)”

[16] It is clear from Ms Degenaar’s submissions that firstly she was unaware there was a 21 day time period in which to apply for unfair dismissal. It is also clear that she made a conscious decision to delay pursuing her unfair dismissal, in the belief that it would be best to apply for an unfair dismissal remedy after the charges against her were hopefully dismissed in court.

[17] With respect to Ms Degenaar’s reasons for making her application after the 21 day period had passed, it is well-established in previous decisions of this Commission that the fact an employee is unaware there is a 21 day time limit within which to make an unfair dismissal remedy application is not an acceptable reason for the delay in making their application.

[18] Secondly to have a genuinely held but mistaken belief as to when it would be appropriate to make an application, in this case believing this should be after her criminal charges were dealt with, is also not an acceptable reason for the delay.

[19] The general law holds that being unaware of our legal rights or obligations is not an acceptable excuse.

[20] Even on Ms Degenaar’s own argument that she was wholly consumed with preparation for the court proceedings regarding the police charges, there is no reason why she could not have completed and filed her application immediately after 11 January 2019 given she then was aware that she had more than three months before the next court date.

[21] In any event I do not accept that Ms Degenaar was prevented from making this application earlier due to her pressing need to prepare for the court proceedings regarding the police charges nor that this amounted to exceptional circumstances. It will not be uncommon that employees after they have been dismissed for whatever reasons experience circumstances that impose significant demands on their time and attention. Such circumstances commonly arise for example due to parenting or family responsibilities, financial difficulties or health problems.

[22] In addition it is clear from Ms Degenaar’s explanation that she spent some time doing things other than preparing for the court proceedings regarding the police charges. She explained that on Sunday 30 December 2018, she started preparing an email she wished to send to her work colleagues. The following day she met with friends. On 5 January 2019, she made a trip to Boddington to visit her cousin to clarify some dates about previous visits, rather than doing this by phone.

[23] Whilst I accept some of the period after her dismissal was occupied with her preparing for a future court case concerning the police charges, what is also known is that as soon as Ms Degenaar became aware that there was a 21 day time frame in which to lodge her application with the Commission, she completed and filed her application online the next day.

[24] In summary I do not accept that Ms Degenaar’s preoccupation with preparing a defence of the police charges was an acceptable reason for the delay in this case, nor was it an exceptional circumstance.

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

[25] Ms Degenaar became aware of her dismissal on the same date it took effect.

Any action taken by the person to dispute the dismissal

[26] Ms Degenaar did not otherwise seek to dispute her dismissal

Prejudice to the employer (including prejudice caused by the delay)

[27] There is no suggestion that there is any particular prejudice to the Respondent if a further period to apply was allowed.

The merits of the application

[28] In brief the relevant background to this matter is that Ms Degenaar had been in a relationship with a male work colleague for two and a half years, however the relationship ended in late 2017. Ms Degenaar says that since then her ex-partner has repeatedly caused aspects of their breakup to negatively impact the workplace. The Respondent’s management and Ms Degenaar have attempted to manage the inappropriate actions and behaviour of her ex-partner however these have escalated through 2018.

[29] The Respondent explained in the letter of termination that it dismissed Ms Degenaar because it believes she admitted she had prepared a letter addressed to a work colleague, her ex-partner, that falsely purported to be from a law firm, that the law firm did not prepare the letter, that the substance of the letter included a threat to her work colleague and ex-partner, that she used the Respondent’s IT system to produce store and print the letter and that she attempted to involve the Respondent delivering the letter to her work colleague and ex-partner.

[30] The termination letter says they’ve considered her explanation about the letter which was to the effect that she was creating a mock-up of what she believed a lawyer’s letter might look like so that she could show it to her family and that she never intended for her work colleague and ex-partner to receive or see it.

[31] The Respondent says that it does not accept the explanation because it is inconsistent with Ms Degenaar’s conduct in placing the letter in an envelope, addressing this to her work colleague and ex-partner and asking another work colleague to give it to him.

[32] The Respondent says in the letter of termination they no longer have sufficient trust and confidence in Ms Degenaar to sustain an ongoing employment relationship.

[33] Ms Degenaar disputes these conclusions on which the Respondent based its decision to dismiss her.

[34] In a decision which is limited to dealing with the question of whether or not an extension of time should be permitted for Ms Degenaar to make this application, the Commission is not required to embark on a full hearing of the merits of the matter. Clearly in this case there is a fundamental disagreement between Ms Degenaar and her employer around the reasons the employer decided to dismiss her and it would only be through a full hearing of the matter that the merits or lack thereof of her application could be determined.

[35] Consequently for the purposes of this extension of time matter the merit of Ms Degenaar’s application is a neutral factor.

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

[36] This is not a relevant factor in this matter.

Conclusion

[37] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days.

[38] I have considered the information provided and the submissions of Ms Degenaar. In this case there is no acceptable reason for the delay in making the application. There are no exceptional circumstances that support extending the time within which to make the application.

[39] Consequently I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed. An order to that effect will be issued in conjunction with this decision.

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