Louisa Pietersen v Muzz Buzz Franchising Pty Ltd
[2024] FWC 1457
•4 JUNE 2024
| [2024] FWC 1457 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Louisa Pietersen
v
Muzz Buzz Franchising Pty Ltd
(U2024/4156)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 JUNE 2024 |
Application for an unfair dismissal remedy – extension of time
The issue and outcome
On 11 April 2024, Ms Louisa Pietersen (the Applicant) applied for an unfair dismissal remedy after having been purportedly dismissed by Muzz Buzz Franchising Pty Ltd on 20 March 2024. The Respondent expressed several objections to the application. First, the Applicant had not been dismissed but had resigned from her position and was therefore not protected from unfair dismissal. Second, the unfair dismissal application had been filed outside of the statutory period prescribed by s 394(2) of the Act. Third, whilst the Applicant contended that the unfair dismissal application was made one day late, the Respondent submitted that the Applicant’s dismissal took effect on 21 February 2024, the date on which she resigned, and was therefore 29 days late.
Section 396 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether an applicant lodged her or his unfair dismissal application with the Commission within the statutory time limit period prescribed by s 394(2) of the Act. Another is whether an applicant was protected from unfair dismissal.
Whilst the Respondent submits that the Applicant was not dismissed (and therefore was not protected from unfair dismissal), the Full Bench in Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc),[1] proposed that the proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[2] That approach has therefore been adopted here.
The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are considered.
For the reasons that follow, I have found that the Applicant’s employment ended on 20 March 2024 and on that basis her unfair dismissal application was made one day late. Whilst the Applicant’s unfair dismissal application was made one day late, I have found that the circumstances were not exceptional and on that basis her application is dismissed. An Order issues concurrently with this decision.[3]
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
It would appear that in mid to late October 2023 the Applicant had a falling out with Ms Joyce Reynolds, the Respondent’s HR Manager, Office Manager, Operations Manager and General Manager.[4] Ms Reynolds was purportedly married to Mr Warren Reynolds, a Director of the Respondent.[5] The Applicant reports that Ms Reynolds had declined to allow the Applicant to attend a work conference, had berated her and intimidated her, and had advised her that she had been observing the Applicant for a period over the last 12 months and the Applicant took too many personal calls.[6]
By mid-February 2024, the Applicant went and spoke to Mr Reynolds about the issues she was having with Ms Reynolds (his wife).[7] However, the Applicant appears to contend that Mr Reynolds did not act on her complaint.[8]
The Applicant described working long hours during the December 2023 period and having experienced health issues, such as chest pains and episodes of crying at work. The Applicant said she had to cancel her Christmas holiday and work through the Christmas period, which resulted in her ending up in hospital.[9]
In mid-January 2024, the Applicant cut back her hours because of exhaustion and then in February 2024, she asked Mr Reynolds for a temporary pay increase while the workload was big.[10]
The Applicant said it took a couple of weeks for Mr Reynolds and Ms Reynolds to get back to her. However, they eventually advised the Applicant that they would pay her for overtime worked but would not provide the Applicant with a pay increase.[11] The Applicant said that she left the office, came back into the office and resigned – noting that she could no longer work at the pace required, or with Ms Reynolds.[12]
At hearing, the Applicant gave evidence that she resigned on 21 February 2024 and then continued to work on 22 and 23 February 2024. The Applicant thereafter presented for work on Monday, 26 February 2024 and on Tuesday, 27 February 2024. However, on Wednesday, 28 February 2024, the Applicant became sick, noting that she was highly emotional and consequently her medical practitioner signed her off on stress leave until her purported final day of work on 20 March 2024. The Applicant tendered into evidence a medical certificate dated 28 February 2024, which certified that the Applicant would be on stress leave and unfit for work until 20 March 2024, inclusive. The Applicant stated to the effect that having resigned, she was required to serve a period of notice that took her employment through until 20 March 2024.
The Respondent pressed that the last day of the Applicant’s employment was the date of her resignation. However, when the representative of the Respondent was questioned about whether the Applicant was afforded personal leave for the last fortnight of her employment, the Respondent explained that the Applicant was paid two weeks in advance and two weeks in arrears. It would therefore appear that the Applicant was paid by the Respondent for the period of her notice.
The date on which employment ended
According to the Applicant, whose evidence I accept, her employment ended as of 20 March 2024. The Respondent contended that the Applicant’s ‘constructive dismissal’ argument meant that the Applicant’s employment ended on the date that she resigned. However, this argument failed to take into consideration the Applicant’s uncontested evidence that for at least four of the days following her resignation she worked for the Respondent and also served a notice period (albeit absent from work by virtue of a medical certificate), and was paid for the last fortnight of her employment. I therefore find the employment of the Applicant came to an end on 20 March 2024.
Extension of time
As the Applicant’s employment ended on 20 March 2024, she was required by s 349(2)(a) of the Act to have made her unfair dismissal application by 10 April 2024.
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[13] It is accepted that 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, can be considered exceptional.[14]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:
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.[15]
In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[16] 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.[17]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[18] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[19]
In respect of the delay, the Applicant’s reason for the late filing of her application is twofold. First, the Applicant’s emotional and physical state meant she had not been able to cope with the loss of her employment and had therefore delayed making her application until the last day of the statutory period – when prompted by her husband. Second, the Applicant says that whilst she attempted several times to submit an online unfair dismissal application via the Commission’s online portal, it kept coming up with an error message.
Whilst the Applicant speaks of leaving the filing of her unfair dismissal application until the last day of the statutory period because of emotional and physical problems, there is no objective evidence before me to support the Applicant’s account that she was emotionally incapacitated for the period of 21 March 2024 up until she lodged her unfair dismissal application. The medical certificate provided predates the Applicant’s dismissal, and a subsequent medical certificate provided by the Applicant does not cover the period of the delay.
The Applicant’s second reason for the delay in filing her application was the technical difficulties she encountered on 10 April 2024 with the Commission’s online portal. The Applicant provided detailed evidence as to the steps she took on 10 April 2024 and 11 April 2024, to submit her unfair dismissal application. These steps included:
| Timeline of events | ||
| 10/04/2024 | 11:39AM | Phoned FWC to confirm what form for use in the initial submissions (22 mins 33 secs) |
| 10/04/2024 | Created online profile on FWC portal | |
| 10/04/2024 | Located form F2 & proceeded to fill it out | |
| 5:30PM | Was unable to save information & “error message” came up. | |
| 11/04/2024 | 9:00AM | Phoned FWC to advise that she was having problems with saving the information on form F2 online (10 mins 59 secs) |
| 11/4/2024 | 2:09PM | Phoned FWC again as it still was not working & she was emailed the form F2 Word Document (15 mins 27 secs) |
The Applicant stated that at 4:57PM on 11 April 2024, she completed the manual Form F2 and emailed it to ‘[email protected]’. The Applicant said she attached the error message to the covering email and also on the Form F2:
The Commission’s records corroborate the timings of telephone calls from the Applicant to the Commission, and the creation of an ‘online profile’ on the Commission’s online portal.
Accepting as I do the correctness of the Applicant's evidence that her attempts to file the unfair dismissal application through the Commission’s web site were made on the day before the expiry of the 21-day period, this favours the conclusion that those attempts were on 10 April 2024.
However, the lodgement of an unfair dismissal application via the Commission’s online portal is not the only way to make an unfair dismissal application. The application can be submitted online, or by filling out the form in Word or PDF format and emailing it to the Commission,[20] or posting the application to the nearest Commission office. In addition, circumstances arise where the Commission will accept an application over the phone.[21]
It is accepted that technical, internet or web related problems are not necessarily exceptional, uncommon or unusual.[22] In my view, it was not reasonable for the Applicant to leave lodging her unfair dismissal application online until the afternoon of the final day of a 21-day period in which to make her unfair dismissal application. Particularly without having found out whether there was an alternative means by which she could have lodged her application if she encountered technical difficulties, such as, as observed, emailing her application to the Commission or making her application by telephone to the Commission.[23]
Whilst sympathetic to the Applicant’s personal circumstances, I do not accept that the matters relied upon by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application. The Applicant was cognisant of the date her employment would end when she resigned, and yet she left the lodgement of her application until the last day on which to make her application.
On balance, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances. In arriving at this finding, I have considered the relevant period to be the period after the 21-day timeframe for lodging the application,[24] but have, in addition, considered the circumstances from the time of the dismissal.
There are several factors that I consider to be neutral, as follows. First, and understandably given the Applicant resigned, the Applicant took no action to dispute her dismissal apart from filing her application (s 394(3)(c)). Second, there is no prejudice to the Respondent (s 394(3)(d)).
Third, in respect of the merits of the application (s 393(3)(e)), I consider this factor neutral. In Telstra Network Technology Group v Kornicki,[25] the Full Bench of the Australian Industrial Relations 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 Full Bench said in respect to the merits of an application:
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.[26]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[27] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted, and the matter proceeded.
The Applicant contends that she was dismissed in circumstances where she tendered a resignation, served a notice period in which she attended work on three to four days, and then took ‘stress leave’ for the remainder of the notice period. Furthermore, the Applicant resigned after the Respondent offered to pay her for overtime but declined to offer a temporary pay rise. The evidence on the merits has not at this stage been considered in detail, but arguably there will be contested facts. An argument of forced resignation due to a course of conduct being engaged in by the Respondent, an argument that the Applicant presses, may prove difficult on the material as currently presented. However, a final assessment of the merits is unable to be made, as the evidence of the parties has not been fulsomely presented or tested. At this stage, as noted, I therefore consider this criterion to be neutral as I cannot say that the Applicant’s case is absent merit.
Based on the materials filed, it is not apparent that there are matters relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)). However, while this consideration may relate to the position of various employees of an employer responding to an unfair dismissal application, it may extend to matters currently before the Commission or to matters previously decided by the Commission. Whilst the materials filed shed no light on this factor, prior cases of this Commission, as cited in this decision, have considered circumstances where there have been technical difficulties in online lodgement of application forms (such as with unfair dismissal applications) and whilst all turn on their own facts,[28] it has been accepted that online lodgement difficulties may not necessarily constitute exceptional circumstances. However, in the circumstances of this case I consider the factor to be neutral.
As to whether the Applicant was notified of the end of her employment and the day that it took effect (s 394(3)(b)), the Applicant resigned from her position and proceeded to serve a notice period. As observed, the Applicant had forewarning of the impending end date of her employment. Notwithstanding, the Applicant delayed making her application until 11 April 2024. I consider that this factor also weighs against a finding of exceptional circumstances.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
The Applicant has not provided a satisfactory explanation for the whole of the delay in making her application. The remaining factors I need to consider are otherwise neutral in this respect or do not weigh toward a finding of exceptional circumstances. Having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
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). The application was made outside the time limit imposed by the Act, and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
L Pietersen, the Applicant
S Pynt of the Respondent
Hearing details:
2024
Perth (by telephone)
23 May.
[1] [2022] FWCFB 234.
[2] Ibid [17].
[3] PR775661.
[4] Digital Hearing Book, 11 (DHB).
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid 12.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] (2011) 203 IR 1, 5 [13] (Nulty).
[14] Ibid 5 [13].
[15] (2018) 273 IR 156, 165 [38] (emphasis in original).
[16] Ibid [39].
[17] Ibid.
[18] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[19] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).
[20] Fair Work Commission Rules 2024, r 16.
[21] Ibid r 69.
[22] Miller, Gail v DPV Health Ltd (Hume)[2019] FWC 3979 [18]; Cullity, Courtney v Cronus Pty Ltd[2021] FWC 4447 [12] (Cronus); Collins v Bunnings Building Supplies Pty Ltd[2016] FWC 7080 [34].
[23] Cronus (n 22) [12].
[24] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[25] (1997) 140 IR 1.
[26] Ibid 11.
[27] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[28] Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[2010] FWA 1394 cf with decisions cited earlier.
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