Kylie Dumic v Focus on Furniture Pty Ltd T/A Focus on Furniture
[2022] FWC 582
| [2022] FWC 582 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kylie Dumic
v
Focus on Furniture Pty Ltd T/A Focus on Furniture
(U2022/1017)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 16 MARCH 2022 |
Application for an unfair dismissal remedy – effective date of dismissal – application filed one day out of time – representative error – circumstances exceptional – extension of time granted.
On 22 January 2022, Ms Kylie Dumic 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 Form F2 – Unfair Dismissal Application (Form F2) of Ms Dumic outlined that her last day of employment was 31 December 2021, and that her dismissal took effect on 1 January 2022. As such, it was recorded in the Form F2 that the unfair dismissal application was made within 21 calendar days of Ms Dumic’s dismissal taking effect.
The Respondent to Ms Dumic’s unfair dismissal application is Focus on Furniture Pty Ltd T/A Focus on Furniture (the Respondent). In the Form F3 – Employer response to unfair dismissal application filed on 8 February 2022, the Respondent objected to the application on the basis that the application was lodged out of time. The Respondent outlined that Ms Dumic was notified of her dismissal on 3 December 2021 and the dismissal took effect on 31 December 2021.
As the effective date of Ms Dumic’s dismissal was initially disputed, I issued directions for the filing of material which required the parties to address both the effective date of Ms Dumic’s dismissal and, if it was determined that the application has been lodged outside the 21-day statutory timeframe, whether or not an extension of time should be granted.
I conducted a Hearing on 15 March 2022 at which Ms Dumic was granted permission to be represented by Mr Hardy Erhardt of Erhardt & Associates and the Respondent was granted permission to be represented by Mr Sam Eichenbaum of Rigby Cooke Lawyers.
Effective Date of Dismissal
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) of the Act.
There is no dispute that Ms Dumic was notified of her dismissal in writing on 3 December 2021. She received an email from the Respondent that day which attached a termination letter dated 3 December 2021 stating the following:
“Dear Kylie
TERMINATION OF YOUR EMPLOYMENT
The purpose of this letter is to confirm the outcome of a recent review by Focus on Furniture Pty Ltd and what this means for your employment.
As a result, Focus on Furniture has found that you are unable to work and have decided to terminate your employment.
Based on your length of service, your notice period is four (4) weeks.
You will be paid you accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment (31/12/2021).
We thank you for your valuable contribution during your employment with us.
…”
It became apparent from the Submissions and Outline of Argument filed by Ms Dumic, on 22 February 2022 and 10 March 2022 respectively, that her assertion regarding the effective date of her dismissal being 1 January 2022 was not pressed. Indeed, the Outline of Submissions filed on 22 February 2022 contains a concession that Ms Dumic erred in her calculation of the 21-day period and that she commenced the calculation of the 21-day time limit on 1 January 2022, the first day after her dismissal, while the Outline of Argument filed on 10 March 2022 records that Ms Dumic’s dismissal took effect on 31 December 2021.
I am satisfied that Ms Dumic’s dismissal took effect on 31 December 2021. Ms Dumic therefore had until midnight on 21 January 2022 to make an unfair dismissal application. As the Form F2 filed by Ms Dumic’s lawyer by way of email was sent to the Commission at 10:56pm on 22 January 2022, Ms Dumic’s unfair dismissal application was made one day out of time.
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 Dumic’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]
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 21 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 one-day delay, or any part of that delay, beyond the 21-day period.[4]
Ms Dumic was provided with four weeks’ notice in writing that her employment would end on 31 December 2021. The evidence established Ms Dumic did not seek legal advice until after her dismissal took effect, at which time she attempted to contact two law firms for legal advice. However, Ms Dumic said she was not able to speak to anyone at either of the two firms so she then had a discussion with Mr Erhardt on 6 January 2022 during which he agreed to act on her behalf in her unfair dismissal application. In this conversation, Mr Erhardt also asked Ms Dumic to prepare a chronology of events. It was evident Mr Erhardt conveyed urgency around timing because Ms Dumic immediately applied herself to the task of completing the chronology. Ms Dumic was worried about not having enough time to lodge an application and so completed and then sent the chronology to Mr Erhardt by email at approximately 9.50pm on 6 January 2022. Ms Dumic later sent some additional documentary material to Mr Erhardt, firstly on both 20 January 2022 and 21 January 2022. On the latter date, she simply sent a copy of her separation certificate. The evidence of Ms Dumic and the submissions of Mr Erhardt at the hearing satisfy me that they were both aware there was a 21-day time period for the making of her unfair dismissal application prior to its expiry.
Mr Erhardt made a number of references to a longstanding and seemingly disruptive and painful medical condition he has. He said it impacted his capacity during January 2022. However, he nonetheless squarely admitted to representative error and took responsibility for it, stating that his “timing and judgement” was wrong. He explained that his practice areas are family law and commercial litigation and that he is unfamiliar with the unfair dismissal jurisdiction. Mr Erhardt says the method of counting days for the making of an unfair dismissal application is different to the areas of law in which he usually practises and as a result, he miscalculated the end of the 21-day period for making an unfair dismissal application on behalf of Ms Dumic.
In the recent case of McHale v Anglicare Victoria,[5] Deputy President Gostencnik outlined the following in relation to representative error in the context of explaining a delay in the filing of an unfair dismissal application:
“In assessing an explanation of representative error as explaining the delay, the whole of the circumstances in which the representative error was made need to be examined. This includes an examination of the extent to which the applicant might be said to be “blameless” and whether by any act or omission an applicant contributed to or caused the error or the delay or any part of it. Thus, an applicant’s conduct is an important consideration in deciding whether representative error provides an acceptable explanation for the delay in filing an unfair dismissal application. However, as Deputy President Saunders observed, correctly in my view, in Walton v DS Opco Pty Ltd:
[12] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. However, as the Full Bench explained in Long v Keolis Downer, “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.” (Endnotes omitted)[6]
Ms Dumic retained Mr Erhardt on 6 January 2022 for the purpose of filing an unfair dismissal application on her behalf. Having promptly complied with his request for a chronology of events and having provided him further documents before the expiration of the prescribed 21-day time period, I am satisfied Ms Dumic gave Mr Erhardt appropriate and timely instructions. The position Mr Erhardt initially adopted in relation to calculating the 21-day time period for filing was, however, plainly wrong. Ms Dumic nonetheless accepted Mr Erhardt’s advice because he had given her the impression that he knew about the deadline.
I do not consider it necessary to deal with the other matters raised on behalf of Ms Dumic in relation to the delay. I am satisfied that there was representative error in this case and that it was wholly responsible for the delay of one day. I am not persuaded Ms Dumic contributed either to Mr Erhardt’s error or to any period of the delay and nor am I persuaded that Ms Dumic could be regarded as having ‘sat on her hands’ once she instructed Mr Erhardt. The representative error provides an acceptable explanation for the whole of the period of delay and so weighs in favour of Ms Dumic.
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 Dumic had been on notice of her dismissal since 3 December 2021. Ms Dumic was therefore aware from 3 December 2021 that her employment would terminate on 31 December 2021. Accordingly, she had the benefit of the full period of 21 days to lodge her unfair dismissal application. I consider this to be 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] While Ms Dumic did not challenge her dismissal directly with the Respondent at any stage, she consulted Mr Erhardt after her dismissal took effect. To the extent this action is relevant, I attribute it very little significance.
Prejudice to the employer – s.394(3)(d)
Ms Dumic submits that there was no prejudice to the Respondent caused by the delay in filing the application one day late. The Respondent has not asserted that it will suffer any prejudice because of any extension of time but contends that having had to address the effective date of Ms Dumic’s dismissal has given rise to prejudice against it. I accept that there has been some prejudice to the Respondent because of the way in which Ms Dumic initially framed her application, but this prejudice was not significant. As such, I consider this factor to be neutral in the 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. Some assessment of the merits must be made. However, 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.
It does not appear to be in dispute that the Respondent was under an obligation pursuant to COVID-19 Mandatory Vaccination (Workers) Directions (and subsequent versions) issued by the Acting Chief Health Officer of Victoria (Directions) to not permit its unvaccinated workers to work outside their ordinary place of residence on or after 15 October 2021. On 4 October 2021, Ms Dumic and other employees of the Respondent had received notification from the Respondent regarding the requirements to be imposed by the Directions and their effect. Ms Dumic was ‘stood aside’ without pay after 15 October 2021 because she was unvaccinated. The Respondent then corresponded with Ms Dumic on 27 October 2021 and 29 November 2021 in relation to her vaccination status. Both letters flagged that if Ms Dumic’s circumstances did not change, the termination of her employment might eventuate and they indicated that Ms Dumic had the opportunity to respond. It does not appear to be disputed that Ms Dumic did not acquire the status of a ‘fully vaccinated’, ‘partially vaccinated’ or ‘excepted’ person under the applicable Directions prior to the notification of the termination of her employment on 3 December 2021, or by 31 December 2021, when it took effect.
The Respondent contends there was a valid reason for Ms Dumic’s dismissal because she was unable to work as a result of the Directions and her unvaccinated status. Further, it says Ms Dumic was notified of the reason and given multiple opportunities to become vaccinated. The Respondent submits Ms Dumic was not denied procedural fairness. Ms Dumic’s case is that she was not granted access to her accrued leave and nor was she permitted to work remotely. She claims she did not have a genuine opportunity to respond and alleges the Respondent had already made its decision to terminate her employment on or around 11 November 2021, when an advertisement for her position appeared on Seek.
Ms Dumic’s dismissal was for a reason related to her capacity, rather than conduct. If the Respondent had permitted Ms Dumic to work for it outside her ordinary place of residence once the Directions commenced operation, this would have constituted an offence under the Public Health and Wellbeing Act 2008 (Vic) and rendered the Respondent liable for a substantial financial penalty. Ms Dumic was notified of the possibility that her employment might be terminated if she could not attend for work and she was offered the opportunity to respond. From 4 October 2021 until the notification of her termination on 3 December 2021, Ms Dumic had nine weeks to consider her position in response to the requirements imposed by the Directions. While she outlined the health considerations lying behind her reluctance to get vaccinated at the Hearing, Ms Dumic did not obtain the medical certification required to become an ‘excepted person’ under the Directions.
Ms Dumic asserts her dismissal was unfair because she was a loyal employee who had a good performance history (evidenced by the regular receipt of commissions and bonuses and an absence of warnings relating to her performance). However, Ms Dumic was also an unvaccinated Store Manager engaged to manage a retail store and under the Directions the Respondent was prohibited from permitting her to work outside of her ordinary place of residence. A refusal or failure by the Respondent to comply with this requirement would have been an offence. Both Ms Dumic’s status and the force of the Directions appears to have remained unchanged up until the termination of her employment. They appear to have remained unchanged since.
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] While I am not able to form a concluded view about the merits of the application, I consider the Respondent has the stronger case based on the material before me. I therefore consider the merits weigh against an extension of time.
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. While the Respondent proffered that the distress felt by Ms Dumic upon her termination and the need to seek new employment are matters facing any employee who has been terminated, 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
Underlying Ms Dumic’s application was her submission that it would be unfair and unjust if an extension of time was not granted. However, the requirement is that there be exceptional circumstances before time can be extended under s.394(3). 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.
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]
I have outlined above that there was an acceptable reason for the delay and this weighs in favour of an extension of time. The only other relevant matter weighing in favour of an extension of time is Ms Dumic’s seeking of legal advice post termination, but this is of little significance. On the merits, Ms Dumic’s case appears to me to be weak, and I consider the Respondent has the stronger case. However, I am ultimately satisfied there are exceptional circumstances because of the admission of representative error from Mr Erhardt which caused the late filing of Ms Dumic’s unfair dismissal application.
On balance, I am satisfied that it is appropriate to exercise my discretion to extend the time for Ms Dumic to make her unfair dismissal application to 22 January 2022 because despite having what appears to be a weak case, I do not consider that Ms Dumic should be denied the opportunity to have her unfair dismissal determined on the merits due to Mr Erhardt’s failure as her legal representative. An Order to that effect will be issued with this Decision.
Accordingly, the matter will now be the subject of further directions so that the merits of Ms Dumic’s application can be conciliated and if necessary, heard and determined.
DEPUTY PRESIDENT
Appearances:
Mr H Erhardt of Erhardt & Associates on behalf of the Applicant.
Mr S Eichenbaum of Rigby Cooke Lawyers for Focus on Furniture Pty Ltd.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
March 15.
[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] [2022] FWC 413
[6] Ibid at [10].
[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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