Leaza Tabone v Talent International (VIC) Pty Ltd
[2024] FWC 2494
•13 SEPTEMBER 2024
| [2024] FWC 2494 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leaza Tabone
v
Talent International (VIC) Pty Ltd
(U2024/9536)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 13 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
This decision concerns an application made by Ms Leaza Tabone (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Talent International (VIC) Pty Ltd (the Respondent) alleges she was dismissed on 24 July 2024. The unfair dismissal application was lodged by the Applicant on 15 August 2024.
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 Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 24 July 2024, the period of 21 days ended at midnight on 14 August 2024. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 12 September 2024 in advance of which the parties filed material in accordance with directions issued. After hearing from the parties, I determined to conduct a hearing pursuant to s 399 of the Act.
The Applicant appeared on her own behalf, gave evidence, and also called her partner Jonathan Vasquez and Nadia Mckenna to give evidence. The Respondent was represented by Nathaniel Ganeson of HR Legal who was granted permission to appear pursuant to s 596(2) of the Act. Mr Ganeson called Aurelie Bouton (Senior People & Culture (P&C) Business Partner) to give evidence for the Respondent.
Background and evidence
The Applicant commenced employment with the Respondent on 10 October 2022 as a full time Contractor Experience Manager. At the time of her dismissal the Applicant was in receipt of an annual salary of $77,000 gross.
The Applicant was invited to an on-line meeting on 22 July 2024 with Ms Bouton and the Applicant’s Manager Simon Yeung. The Applicant was advised during what was a brief meeting that her position was at risk of redundancy. A letter[1] (22 July Letter) confirming this was sent by Mr Yeung to the Applicant that same day. The 22 July Letter invited the Applicant to put forward any views and feedback to the Respondent in writing by 23 July 2024 and foreshadowed a further meeting to ‘finalise the matter’ on 23 July 2024. An email exchange[2] then took place between the Applicant and Ms Bouton on 22-24 July 2024 in which the Applicant requested a 24-hour delay in the meeting, sought clarification and received responses on the reasons for the proposed redundancy as well as details of her redundancy entitlements.
A further meeting was held on 24 July 2024 involving the Applicant, her support person Nadia McKenna, Ms Bouton and Mr Yeung. The Applicant was advised that the Respondent had considered whether there were any redeployment opportunities but had not identified any. The Respondent then advised during the meeting that it would be proceeding with the Applicant’s redundancy and subsequently confirmed this in writing (the Termination Letter)[3]. The Termination Letter provided contact details of the Employee Assistance Program (EAP) which were apparently incorrect which prompted the Applicant to communicate with Ms Bouton on 25 July 2024 who then provided the correct details.
The Applicant gave evidence that shortly after receiving advice from the Respondent on 22 July 2024 that her position was at risk of redundancy, she contacted the Commission for advice. In the days following the Applicant’s termination she states she went onto the Commission’s website and completed the on-line Form F2 and believed that she had submitted the application form. While not exactly sure what day she had attempted to lodge the Form F2 she agreed it may have been the 30 July 2024 per the date identified in the signature section of the form. She explained that when she had not received confirmation from the Commission of its receipt of her application some two weeks’ later, she went onto the Commission’s website again to check the status of her application and realised that as she had not paid the application fee, the application form had not been lodged. She says she immediately paid the application fee and the Form F2 was then formally lodged with the Commission at 2.48pm on 15 August 2024.
The Applicant attributed her failure to file the Form F2 within 21 days due to her genuine belief that she had in fact filed it on or about 30 July 2024. She also states that her mental and physical state at the time of her dismissal affected her ability to double check the details of her application and confirm it had in fact been lodged correctly and on time.
The Applicant was cross-examined on her evidence regarding the delayed filing of her application and gave the following responses;
· Agreed that she had provided no medical evidence in support of her claims regarding her physical and mental state at the time of and following her dismissal.
· Confirmed that despite claiming to have had a debilitating medical condition since May 2024, she continued to perform her role with the Respondent in the May – July 2024 period.
· Agreed that despite claiming to have been affected by her physical and mental state in the wake of her dismissal, she did in fact engage with former colleagues via email as well as engaging with the Commission and commencing the process of filing her application.
· Conceded that the instructions on the Commission’s website regarding the filing of an unfair dismissal application were clear as were the consequences of failing to file the application within 21 days.
· Agreed that in filing her application on 15 August 2024, she provided some additional documents that became available after 30 July 2024. This included a job advertisement placed by the Respondent on 1 August 2024.
· Stated that she had assistance in preparing the unfair dismissal application.
· Rejected that her failure to file her unfair dismissal application on time was due to carelessness.
The Applicant questioned the genuineness of her redundancy in circumstances where the Respondent advertised on 1 August 2024 for the position of Account Manager – Corporate Services. Ms Bouton in her evidence distinguished that role from the role the Applicant had held and explained that it was substantially different. The Account Manager role was described by Ms Bouton as having as its main purpose that of driving sales to sustain profitability of the branch, skills required for which were not held by the Applicant whose role had been administrative in nature.
Ms Bouton was cross-examined by the Applicant on the process followed by the Respondent in affecting the Applicant’s redundancy and gave the following responses;
· Rejected that either the redundancy or 30 minutes notice of the meeting on 22 July 2024 was unfair.
· Claimed to have been unaware of rumours circulating two weeks prior to the Applicant’s dismissal that she was at risk of losing her job.
· Was unaware of the Applicant’s claimed medical condition until the meeting of 24 July 2024.
· Confirmed that planning for the redundancy of the Applicant’s position commenced approximately one week before the redundancy took effect.
· Confirmed that the Respondent did consider whether there were any redeployment opportunities but was unable to identify any available roles and noted that the Applicant had not raised any suggestions of alternate roles within the organisation.
· Stated that it was not practical to place the Applicant in another role in the organisation as they were all filled and would have required the displacement of other employees from such roles.
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, 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.[4] 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.[5]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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) 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 turn to consider these matters in the context of the Application.
Reason for the delay
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 14 August 2024. The delay is the period commencing immediately after that time until 15 August 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.[6]
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.[7] An applicant does not need to provide a reason for the entire period of the delay although 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 of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[8].
Before turning to consider whether to grant an extension of time it is firstly necessary to establish when the Application was lodged. A review of the Commission’s on-line lodgement system (OLS) records reveals that the Applicant created her OLS account on 30 July 2024. The date recorded in the Applicant’s Form F2 signature block of 30 July 2024 was automatically generated at the time the Applicant entered her signature. The next and last date of activity on the Applicant’s OLS account was 15 August 2024 when she paid the application fee, and the form was then lodged in the Commission’s system along with attached documents. These records appear to support the Applicant’s version of events, that she filled out the form on 30 July 2024, neglected to pay the application fee at that time and only realised her error on 15 August 2024 at which point she paid the fee and lodged the form.
The above raises a question as to whether the partial completion of the Form F2 in OLS lodgement process constitutes compliance with the requirement that an application must be made within 21-days of the dismissal taking effect. If it were accepted that the Applicant by preparing her Form F2 in the OLS system but failing to finalise the application by paying the fee or seeking a fee waiver, constituted compliance with the 21-day fling requirement, then the application in the present matter would be held to have been made within the 21-day period. For the reasons that follow, I find that the application was not made within the required 21-day period.
It is not possible to establish by reference to the OLS data what stage of completion the Form F2 was at on 30 July 2024. It merely establishes that the Applicant set up her OLS account on that date and had at least included her signature which then generated the 30 July 2024 date in the signature block. The OLS data does not disclose whether any subsequent substantive amendments were made to the Form F2 prior to its lodgement on 15 August 2024. In reviewing the OLS data in the present case, it is not possible to establish whether the application form was partially drafted pending its later finalisation or whether it was fully drafted and ready to be lodged. The Applicant gave evidence that it was the latter circumstance in the present case. That position was undermined however by inclusion in the Applicant’s 15 August 2024 application of the 1 August 2024 job advertisement for the Account Manager position. The fact that the Applicant included additional material with her 15 August 2024 application that became available after 30 July 2024 suggests that the application was not complete as of 30 July as contended by the Applicant.
Further, the Commission’s website includes a clear explanation as to how on-line unfair dismissal applications are to be lodged including the requirement that either the application fee is paid at the time of the application, or a fee waiver is sought. The consequences of a failure to lodge the application within 21-days of the dismissal is also explicitly stated on the website. It is abundantly clear in my view that for an application to be lodged via the on-line form, the application fee must be paid or a fee waiver sought at the time of the on-line application being lodged. In the present matter, neither of these steps were taken by the Applicant. It follows from the foregoing that I do not accept that the application was made on 30 July 2024. It was in fact not lodged until 15 August 2024. As such, the application was lodged 22 days after dismissal and an extension of time would be required. It is to that I now turn.
I accept that the Applicant spoke with a staff member of the Commission on or about 22 July 2024 and subsequently commenced the process of lodging her application on 30 July 2024. The Applicant submits that she believed she had lodged her application on that date but when she later checked the status of her application, she discovered that it had not been processed as it was pending payment. The Applicant then paid the filing fee and submitted her application on 15 August 2024. The Applicant also submits that during this period she was suffering from anxiety, as well as pain and distress from an existing medical condition, which was her primary focus. The Applicant contends that the combination of these mental and physical challenges she was facing impacted her ability to confirm the relevant deadline. For the reasons that follow I do not accept that the Applicant has provided a reasonable explanation for the delay in filing the application.
Firstly, the Applicant conceded that the instructions on the Commission’s website regarding unfair dismissal application filing requirements and the consequences of late filing are clear. She also conceded that she had not completed all the application lodgement steps until 15 August 2024.
Secondly, there is no medical evidence before me that would allow a finding that the Applicant was prior to, at the time of and/or immediately following her dismissal, suffering from either a physical or mental condition that prevented her from preparing and filing her application. The evidence such as it is, discloses that the Applicant was able to continue performing her duties up until the date of her dismissal. The fact that the Applicant may have had two days off on personal leave in June 2024 does not indicate that she was debilitated to such an extent either physically or mentally at the time of her dismissal that she could not lodge the application within time.
Thirdly, the evidence also discloses that the Applicant was in fact able to prepare her application in the wake of her dismissal. This is clear from her engagement with the Commission on or about the 22 July 2024, the partial completion of the application on 30 July 2024 and her engagement with Ms Bouton and her former colleagues following her dismissal.
While the Applicant rejects that the reason for the delay was due to her inattention, that in my view is the most likely explanation in circumstances where the lodgement requirements were understood by the Applicant, where she started the application process on 30 July 2024 but failed to fully complete the lodgement process until 15 August 2024. That inattention or a lack of attention to detail was not explained by the Applicant’s medical condition, of which there was no evidence. I am not satisfied in the circumstances that the Applicant’s apparent oversight or inattention provides an acceptable reason for the filing delay. The absence of an acceptable explanation for the filing delay weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant became aware of her dismissal on the same day that it took effect on 24 July 2024 and therefore she had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest her dismissal after it took effect on 24 July 2024, other than lodging her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Prejudice to the employer
The application was filed one day outside of the 21-day period. I do not accept the Respondent’s contention that it would suffer particular prejudice if an extension of time were granted. I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. However, I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra Network Technology Group v Kornicki [9] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[10] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant contends that her dismissal was not a genuine redundancy and that her dismissal was unfair for a number of reasons. She submits that there was inadequate time allowed for consultation, that she was selected for redundancy due to her medical condition, and that the Respondent failed to genuinely consider whether there were alternate roles available for the Applicant to be redeployed to. She also points to the Respondent advertising for an Account Manager role immediately following her dismissal.
The Respondent rejects the Applicant’s contentions. It distinguishes the Account Manager role requirements from the role and skills held by the Applicant at the time of dismissal and submits that it considered potential redeployment opportunities but was unable to identify any available roles. They further submit that the Applicant did not identify any other available roles at the time of her dismissal and that it was impractical to create a role for the Applicant by simply displacing other employees from their roles. The Respondent further submits that the process was not abrupt, that the Applicant was not selected for discriminatory reasons as it was not aware of the severity of Applicant’s claimed medical condition at the time of her dismissal and that her redundancy was driven purely by a business downturn.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. The Applicant has an arguable case that her dismissal was not a genuine redundancy as asserted by the Respondent. For its part, the Respondent raises a prima facie defence that the dismissal was a genuine redundancy. Based on the material available at this stage of proceedings I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
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.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
L Tabone, Applicant.
N Ganeson for the Respondent.
Hearing details:
2024.
Melbourne (by via Microsoft Teams):
September 12.
[1] Exhibit R1, Witness Statement of Aurelie Bouton, Dated 6 September 2024, Annexure AB-1, Letter to Applicant dated 22 July 2024, titled ‘Re: Your Employment’
[2] Exhibit R1, Annexure AB-2, Email exchange between Applicant and Aurelie Bouton, dated 22-24 July 2024
[3] Exhibit A3, Termination of Employment Letter, dated 24 July 2024
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[5] Ibid.
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[8] Ibid at [40].
[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[10] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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