Lynh Vu v Rossan Distributors Pty Ltd
[2024] FWC 964
•12 APRIL 2024
| [2024] FWC 964 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lynh Vu
v
Rossan Distributors Pty Ltd
(U2024/190)
| COMMISSIONER SIMPSON | BRISBANE, 12 APRIL 2024 |
Application for an unfair dismissal remedy – Jurisdictional objection that the application is out of time – Dispute concerning date of dismissal – Application out of time – No exceptional circumstances – Application dismissed.
On 5 January 2024, Ms Lynh Vu (Ms Vu / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Rossan Distributors Pty Ltd (the Respondent).
In its Form F3 Employer Response, the Respondent raised a jurisdictional objection of “other” and in the explanation of that objection submitted that the Applicant was a casual employee. At the time of filing its Form F3, the Respondent was self-represented and a potential out of time issue was not squarely raised in the Form F3. In the Form F3, in response to the question concerning what date the termination occurred the Respondent wrote “12/12/23 but we couldn’t get any belongings of Rossan back from the staff member till late December I had to request the car company to tow the car back to their office.”
The Form F3 stated that the Applicant’s employment was covered by the Commercial Sales Award 2020 (the Award). The Applicant’s hourly rate of pay as a Sales Representative and Merchandiser was $32.84 per hour according to her last payslip. Under the Award, the casual rate of pay for a Commercial Traveller/Advertising Sales Representative is also $32.84 per hour.
On 22 February 2024, the matter was allocated to me, and I issued directions for filing of material relating to the jurisdictional objection. The matter was listed for hearing on 19 March 2024 by video using Microsoft Teams. Subsequently, an additional day was listed on 27 March 2024. The Applicant was granted leave to be represented by Mr C Dorber, a paid agent of Employee and Executive Protect Pty Ltd, and the Respondent was granted leave to be represented by Mr R Kapadia of Kapadia and Gordon Lawyers.
Both parties filed material in accordance with the directions. On receipt of the Respondent’s material, it became apparent there was an objection that the application was lodged out of time. It was apparent on the material that there was also a dispute as to whether the Applicant was engaged as permanent or casual employee. Associated with this dispute was the separate dispute about the actual date of termination of the Applicant. At the commencement of the hearing on 19 March, I made clear to the parties that they would need to address the considerations in section 394(2) of the Act as the matter of whether the Applicant was out of time was a matter of dispute, and in the event the application was out of time, the issue of whether an extension of time should be granted would need to be dealt with.
The Respondent relied on the evidence of Darshan Sejpal, a Director and Manager of the Respondent based in Melbourne who provided a witness statement of 12 March 2024.[1] The Respondent also relied on the oral evidence of Kevin Sejpal and he was cross-examined, including over the Form F3 which he completed. The Form F3 was also admitted as an exhibit.[2]
The Applicant relied on her own witness statement which was admitted into evidence.[3] The Applicant sought to tender a statement from Kate deThier. Ms deThier was unavailable to give evidence on medical grounds and a medical certificate was provided to the Commission in this regard. The Applicant’s representative sought to tender the statement, however advised it was willing to proceed relying on the evidence of the Applicant if the statement was not admitted. I indicated that the statement could not be afforded the same weight as it would had Ms deThier been available for cross-examination. The Respondent did not oppose the statement being admitted into evidence on that basis that it would be a matter for the Commission to determine the weight that should be attached to it.[4] An email from Marie Coralde, a Retail Manager for Chempro Holland Park, was also tendered into evidence on the same basis.[5]
Darshan Sejpal’s witness statement included the following:
“2. On or around Monday 27 November 2023 I gave the instruction to Kate deThier, the manager responsible for supervising the Applicant, Lynh Vu, to inform her that her services are not required and that the week ending Friday 1 December will be her last week with 2 rostered days of work.
3. On Tuesday 2023 at 8.23am Kate deThier sent an email stating as follows:
‘If it is your decision for Lynh to finish this week. I will talk to Lynh and collect her things.’
4. My instruction was confirmed in writing on Tuesday 28 November 2023, whereby I wrote to Kate and informed her as follows:
‘Sure, as we discussed over the phone if you could advise her this will be last week as roasted for two days.[sic]’
5. Her last day of employment with the Respondent was Friday 1 December 2023.
6. On 5 December 2023 I sent an email to Kate requesting her to confirm that she had received all items belonging to Rossan Distributors Pty Ltd.
‘Also confirming once again that you have received everything from Lynh as I said on email and over the phone ?
Is car been dropped off too ? so that we can get final invoice from car Company.’
7. Annexed hereto and marked ‘Annexure A’ is the email chain between Ketan Sejpal, Darshan Sejpal and Kate deThier from 28 November 2023 to 5 December 2023.
8. The Applicant was not requested, required, or permitted to undetake any work for or on behalf of the Respondent company from 1 December 2023.”
Darshan Sejpal gave oral evidence-in-chief consistent with his statement. Darshan Sejpal’s oral evidence is that he followed up by email and by phone with Ms deThier to confirm that the Applicant’s employment had been terminated.
Darshan Sejpal said he did not request the Applicant to perform any work on 6 December 2023 in relation to a promotion day. Darshan Sejpal said he was not aware of any work done by the Applicant for his company since 1 December 2023. He accepted that he did not have a conversation with the Applicant himself about the termination of employment.
Darshan Sejpal was referred to the following words contained in the Respondent’s Form F3 Response that was completed by Kevin Sejpal:
“…According to Casual contract we do not require to give any notice, but we allowed two weeks’ notice…”
Darshan Sejpal said this was an error, and that it should have said one week’s notice. He said this was consistent with what he said to Ms deThier, which I understood to be him referring to the period from the phone call on 27 November and 1 December 2023.
Darshan Sejpal was referred to the payslip attached to his witness statement that pertained to the period from 27 November 2023 to 10 December 2023. He was asked to identify from the payslip where it refers to payment of notice. Darshan Sejpal said the system defaults to a fortnightly period. He confirmed his view that the Applicant was employed as a casual employee. He said her hours of work varied as a casual. It was put to Darshan Sejpal that the Applicant worked every week in the period of her employment and the Respondent provided her a car. He said that she did not work every week. He also said he did have contact with the Applicant on a monthly basis.
It was put to Darshan Sejpal that Ms deThier was absent on sick leave at the time he sent her an email on 5 December 2023. Darshan Sejpal said he said he had a chat with Ms deThier on 5 December and he asked her when she would be back at work.
It was put to Darshan Sejpal that the Applicant worked for the Respondent on dates after 1 December 2023. Darshan Sejpal said he sent an email of 5 December to Ms deThier about the return of all items the Applicant had in her possession.
Kevin Sejpal gave evidence that he completed the Respondent’s Form F3. He said the Applicant was employed as a casual employee as it was a recommendation from Ms deThier, and he allowed Ms deThier to employ an additional employee, as another employee was on a period of maternity leave. Kevin Sejpal said the Applicant did not have fixed hours and she was employed as needed.
Kevin Sejpal was asked about what he wrote in the Form F3, particularly the statement, “...According to Casual contract we do not require to give any notice, but we allowed two weeks’ notice…” Kevin Sejpal said because the Applicant was casual, she was not required to be paid notice. Kevin Sejpal’s evidence was this was a misunderstanding and he understood Darshan Sejpal advised Ms deThier to dismiss the Applicant on 28 November with effect from 1 December. Kevin Sejpal said the Form F3 was completed over the Christmas period, and he realised what he wrote was not correct, and as the Applicant was casual, Ms deThier only gave her a few days’ notice of her termination.
Kevin Sejpal was asked about the final payslip that recorded the Applicant being paid for 36.25 hours, and how that number of hours was arrived at. Kevin Sejpal said this was from the timesheet sent from Ms deThier, the Applicant’s manager, and this was for the hours she worked up to Friday 1 December. Kevin Sejpal said the Applicant finished work on the Friday 1 December. Kevin Sejpal agreed this was four days’ pay.
Kevin Sejpal agreed he signed the Form F3 on 24 January 2024 and completed it himself. He said the office shut down on 22 or 23 December 2023. Kevin Sejpal was asked how the Applicant would have known she was not to work for the Christmas shut down period. He said it was understood that the business shut down and everyone gets a communication. It was put to Kevin Sejpal that the Queensland Manager, Ms deThier was on sick leave. He said Ms deThier emailed him the times the Applicant had worked. It was also put to Kevin Sejpal that Ms deThier was not contactable from 12 December 2023.
Kevin Sejpal agreed he wrote on the Form F3 in response to Question 1.4:
“What date did the dismissal take effect?
12/12/2023 but we couldn’t get any belongings of Rossan back from the staff member till late December I had to request the car company to tow the car back to their office.”
Kevin Sejpal said the reason he wrote that was that it was based on the payslip which was for the pay period of 27 November to 10 December, and the Applicant would have received the pay slip the next day, and that was how he did it. He said he clarified later with Darshan Sejpal that the dismissal was 1 December 2023. He again said that he received the advice from Ms deThier that the Applicant’s last day of work was 1 December 2023.
Kevin Sejpal said that the Applicant was not a regular and systematic casual employee and her hours fluctuated. Kevin Sejpal agreed that at one point it was proposed that the Applicant be employed as a permanent part time employee, however he said he had a discussion with Ms deThier who told him the Applicant was not ready to move to a permanent part time role. It appears the offer was first made around March 2023 and withdrawn approximately three months later. Kevin Sejpal said the Applicant was always a casual and she got hours depending on the business needs and it was a flexible arrangement. Kevin Sejpal said the Applicant had another job at a different employer when she worked for the Respondent.
I asked Kevin Sejpal if accrued leave is identified on the payslips of permanent staff and he said that it is.
A document was put to Kevin Sejpal that said that on 15 December 2023 the Applicant attended the premises of Chempro to remedy a complaint. It was put to Kevin Sejpal that the Applicant would not have done this if she was clearly told she was not an employee of the Respondent. Kevin Sejpal said there was no instruction from the Respondent to the Applicant to do this work.
The Applicant said in her witness statement that prior to commencing with the Respondent, Ms deThier had asked her to work for the Respondent as there was a position available as a training representative and merchandiser for part time hours (35 hours per week) due to growth and volume of work. The Applicant said this was a permanent part time position. The Applicant said the start date was 6 September 2022 and on 28 November 2023 at 7.20pm she was let go via phone call from Ms deThier with 2 days’ notice, that 1 December 2023 would officially be her last day. The Applicant said that because the Respondent had agreed to a promotion day which was on 6 December 2023, this was to be her last shift with the Respondent (unpaid).
The Applicant said if it were not for Ms deThier, she would not have received even the 2 days’ notice. The Applicant said with her notice period, her last day would be 21 December 2023. The Applicant said she was told the reason for her termination was that someone was returning in January, but that she has never been told in writing her reasons for termination. The Applicant maintained she was a permanent part time employee, however said in any event, as a casual she was never permitted to decline work and her last actual available day was 23 December 2023. The Applicant said she was paid on 11 December and all work after that was unpaid.
The Applicant said she had no contact or formal notice of termination as at the date she lodged her claim. The Applicant said she had not been paid for accrued annual leave or notice of notice in lieu. The Applicant said she was paid fortnightly and there is no classification or payment of a casual loading.
The Applicant said the last time she spoke to Ms deThier was the day that she fired her on 28 November. The Applicant said Ms deThier phoned her at about 8.30pm and told her that she was being let go and that she would find out more information about it. The Applicant said that Ms deThier did say to her to finish up on Friday 2 December. The Applicant said Ms deThier said she would get further information and asked her to continue doing what she was doing, but the Applicant said she never heard back from Ms deThier again.
The Applicant said she worked an average of about 35 hours a week. The Applicant was asked why she responded to phone calls and travelled to a chemist up until 15 December if she was told she was dismissed from 1 December. The Applicant said she never received confirmation in writing, and she had spoken to Ms deThier, but had not been contacted by the actual owners of the Respondent. The Applicant said Ms deThier then went on stress leave. The Applicant said the Respondent closed between 15 December and 15 January 2024. The Applicant agreed she was required to submit timesheets. The Applicant was asked why she did not submit timesheets for the times after 1 December 2023. The Applicant said Ms deThier was under a lot of stress, and on the day Ms deThier sent the email on 6 December, the Applicant said she worked with Ms deThier at Booval Friendly Care, but she did it without getting paid. The Applicant said she performed duties that day.
The Applicant said that she still had things from the Respondent including the company car and until these things were taken away from her, she believed she was still employed. The Applicant said she approached her representative, Mr Dorber for assistance on 12 December. The Applicant said she told Mr Dorber she needed to seek advice. I asked the Applicant when she first asked Mr Dorber to file an unfair dismissal application, and she said that it was maybe a week later. The Applicant later clarified that the first time she made contact with Mr Dorber was on 19 December 2023. She agreed that her subscription application was returned on 18 December. The Applicant recalled that she told Mr Dorber that she had worked on 15 December. The Applicant agreed that the statement she prepared was forwarded to Mr Dorber’s office on 5 January 2024.
The Applicant agreed she had asked Ms deThier to prepare a statement for this matter. The Applicant was referred to the statement of Ms deThier where Ms deThier said that on 27 November she spoke to Darshan Sejpal and was told to terminate the Applicant, and for the Applicant to finish by the end of the week on 1 December 2023. Ms deThier said that she had no choice but to call the Applicant and to advise her over the phone that she was to finish at the end of the week as per the Sejpals’ instructions. The Applicant accepted that is what occurred. The Applicant accepted that she said in her own statement that 1 December 2023 would officially be her last day.
The Applicant agreed that she had a conversation with Ms deThier on 28 November where Ms deThier told her that her employment with the Respondent was finished and terminated effective from 1 December. It was put to the Applicant that because Ms deThier said that she was finished and terminated from 1 December, that would count as a request not to do any further work for the Respondent. The Applicant disagreed, because of what she said took place after. The Applicant agreed that she understood at the time of the conversation her employment was to end on 1 December. The Applicant agreed that Ms deThier meant in the conversation that she was to have no further involvement with the Respondent from 1 December 2023.
The Applicant also accepted that the words, ‘let go’, which she used in her own statement, meant that she could not perform any more work for the Respondent.
The Applicant agreed that Ms deThier ceased working from after 5 December 2023. The Applicant also said that Ms deThier rostered her and made requests for her to work. It was put to the Applicant that if Ms deThier was not available from 5 December, she could not have requested the Applicant to work. The Applicant agreed that was so from that date, but that Ms deThier did tell her to continue her duties until she found out more information. It was put to the Applicant that Ms deThier did not say that in her statement, and the Applicant did not say that in her own statement. The Applicant said that was because she left that bit out.
The Applicant accepted that she had not provided any evidence that she actually went to work on 6 December on a promotion day, and she accepted that Ms deThier’s statement did not say she worked on 6 December.
The Applicant was referred to an email that she sent to Ms deThier on 10 December at 8.40pm with the subject line ‘FIRED TIMESHEET’. The Applicant accepted that she labelled the timesheet itself ‘Rossan timesheet LV’s NOV last’ as it was her last timesheet. The Applicant agreed that the timesheet itself does not record that she worked at all for the Respondent after 1 December. The Applicant accepted this email was sent after 6 December which was a date the Applicant had claimed to have worked; however, 6 December was not included in her timesheet.
The Applicant agreed that she never sent any timesheets after this one.
It was put to the Applicant that if she claimed to still be working after 1 December, she did not follow normal protocols by submitting a timesheet. The Applicant agreed. The Applicant accepted that she has not provided evidence that the Respondent required her to work on 6 December. The Applicant accepted she had access to the email address and phone numbers of Darshan and Kevin Sejpal. It was put to her that she did not contact them about the claim that work was required to be performed after 1 December 2023. The Applicant agreed that she did not seek out either of them to clarify the status of her employment. The Applicant agreed that when she received the call from Chempro Holland Park she could have informed someone else to go, and she accepted that the request to attend at Chempro Holland Park did not come from Ms deThier or either of the Sejpals.
It was put to the Applicant that there was nothing stopping her from filing an unfair dismissal application from 1 December. The Applicant disagreed saying the car was not taken away until 23 December 2023. The Applicant gave oral evidence that this was when she realised that she was no longer working.
The Applicant was referred to the email sent from Darshan Sejpal to Ms deThier at 6.53pm on 5 December where he asked Ms deThier to confirm that she had received everything from the Applicant. The Applicant was also referred to an email from Ms deThier of 10.52am on 6 December 2023 that included the following:
“…Lynh finished up with some gold coast stores in Friday, She then has had work at her other job the last 2 days. I expect to catch up with her and get everything in the next few days and have car returned by the end of the week...”
The Applicant did not agree that Ms deThier attempted to obtain all of the items from her immediately after 1 December. It was put to the Applicant that the reason she held on to those items was because she refused to give them back to the Respondent. The Applicant denied this.
Respondent’s Submissions
The Respondent submitted that the final day of work for the Applicant with the Respondent employer was 1 December 2023. The Respondent submitted this is an agreed fact at line 12 and 13 of the Applicant’s application. The Respondent submitted this notification was documented in writing on 28 November 2023 and 5 December 2023 and is contained in the witness statement of Darshan Sejpal.
The Respondent submitted that as this was the date the alleged dismissal took effect, the Applicant has failed to file her application in time. The Respondent submitted the application must have been filed on or before 22 December 2023. The Respondent referred the Commission to its decision in the case of Elissa Louise Massey v Centrecare (Massey).[6] The Respondent submitted in the present matter, no reason is provided for the delay in filing, and relying on the case of Massey, the intervening public holidays are not an exceptional circumstance. The Respondent submitted the application is out of time and must therefore be dismissed.
Applicant Submissions
It was submitted for the Applicant that she was invited by Ms de Thier to work for the Respondent as a training representative and merchandiser on a part-time basis, working 35 hours per week, due to growth and volume of work. The Applicant submitted that this view supports that this was a permanent part-time position offered to her and that she worked not less than 35 hours a week and frequently substantially more on a continuous and systematic basis since her recruitment date of 6 September 2022.
The Applicant asserted the following in relation to her dismissal:
“on 28 November 2023 at 7:20 PM [I] was let go via a phone call with two days’ notice and that 1 December 2023 would be my last day, but because Rozlyn had agreed to a promotion day which was on the sixth of member 2023 this was to be my last shift with Ross and unpaid, and that with my notice. This would make my last [day] 21 December 23”.
The Applicant asserted that the first reason for her termination was because a staff member was coming off parental leave in January 2024, and she was the replacement. It was submitted she was never told this when employed, but if true confirms her belief that she was a permanent part-time employee.
The Applicant stated that she considered her position to have been permanent part-time position “even though the company is suggesting [she was] a casual”. In any event, as a casual, the Applicant stated that she was never permitted to decline to work, and her final available working date was 23 December 2023. She submitted she was paid on 11 December 2023, and all work after that date was unpaid.
Parts 1.4 and 1.5 of the Form F2 Application completed on behalf of the Applicant stated that she was notified of her dismissal either on 6 December 2023, 11 December 2023, or 20 December 2023. She further stated that the dismissal took effect on 23 December 2023, which would have been the last day of her notice, or in the alternative on 21 December 2023.
The Applicant submitted the Respondent filed a Form F3 stating at part 1.3 that the Respondent notified the Applicant of her dismissal on 28 November 2023, and at part 1.4 stating that the dismissal took effect on 12 December 2023. The applicant emphatically denied that any contact was made with her about the final date of employment.
The Applicant submitted that there is no evidence that she was a casual employee at the time of the termination of her employment, and that there is no evidence that her immediate manager ever spoke to her again after 28 November 2023 concerning the Applicant’s employment duties, due to the Manager’s personal illness and absence from the workplace. She also submitted there is no evidence that the Respondent employer engaged in a conversation directly with her about her employment or termination.
The Applicant submitted there is no evidence that the Applicant was paid as a casual employee and her pay slips make clear that her pay frequency was fortnightly. The Applicant’s evidence is that she worked systematically and regularly on a full- time basis in the period of months immediately prior to the termination, after having been initially employed as a “permanent part time employee”.
It was submitted for the Applicant that she worked (engaged in employment activity) for the Respondent on the following dates:
· 02/12/23 – loaded and delivered “stands” to her direct manager, by direction;
· 06/12/23 – Inala Chempro;
· 07/12/23 – Giant Chemist Harbour Town;
· 11/12/23 – Salisbury Chempro;
· 15/12/23 – Holland Park;
· 20/12/23 – Marsden Park Chempro;
· 23/12/23 – organised, loaded, and returned the work car to the direct Manager;
· 15/01/24 – responded to “Jacqui from head office, re an email in regard to orders;
· 19/01/24 – returned by hand Work iPad and telephone to employee Gina; and
· 23/01/24 – engaged in work related conversation with Gina (employee) on the work phone number and responded to calls from customers who were unaware and had not been informed she had been terminated.
Consideration
I do not accept as credible the Applicant’s claim that Ms deThier told her to continue working until she had been provided more information on the reason for her termination. This claim was not contained in either the Applicant’s or Ms De Thier’s witness statement and does not make sense in the context of the clear concession made by the Applicant that Ms deThier made clear to the Applicant during their telephone conversation on the evening of 28 November 2023 that her last day was to be 1 December 2023. That it was understood that her employment was to end on 1 December is also consistent with her own statement and that of Ms deThier. The Applicant’s evidence under cross-examination made clear that she understood her employment was terminated with effect from 1 December 2023.
The email of 10 December that the Applicant sent to Ms deThier providing her claimed hours or work made no reference to 6 December, and this tends to support the view that the Applicant understood she was no longer employed by the Respondent from 1 December 2023. The Applicant has not provided a sensible explanation for why she performed some limited work functions on dates after 1 December, including 6 December and 15 December that were consistent with things she had previously done in the course of her employment up until 1 December 2023. The timesheet the Applicant sent to Ms deThier is clear documentary evidence that the Applicant understood she was no longer employed by the Respondent from 1 December 2023.
I do not accept that the Applicant needed more than to have been told by Ms deThier that she was terminated with effect from 1 December to understand that her employment was ending on that date.
The evidence also overwhelmingly supports the conclusion that the Applicant’s position was a casual position and not a permanent part-time position. The email evidence pertaining to the decision to authorise Ms deThier to engage a new employee in the context of another employee taking maternity leave describes the proposed position as being a casual position. The Applicant’s payslips did not include any reference to the accrual of any annual or personal leave, as was the case for permanent staff. The evidence was the Applicant’s hours of work fluctuated and her hourly rate of pay was identical to the relevant rate of pay for a casual employee under the Award. There was evidence that at one point a draft contract for a permanent part time position was offered to the Applicant but was later withdrawn on the basis that Ms deThier had said the Applicant was not ready. There was no compelling evidence to suggest that the Applicant was told by anyone that she was a permanent part time employee.
I am satisfied on the basis of the evidence that the Applicant was terminated by the Respondent from a casual position on 1 December 2023. Any suggestion that the Applicant was entitled to notice is misplaced.
Should An Extension of Time be Granted?
The last day that the application could have been filed within time was Friday, 22 December 2023. As the application was not filed until 5 January 2024 it was filed 14 days out of time.
(a)Reason for the delay
There was no evidence to suggest that the Applicant could not have filed the unfair dismissal application by Friday, 22 December 2023. The explanation for the delay appears to be a claimed misapprehension on the part of the Applicant that her dismissal did not have effect until after the property of the Respondent, including a vehicle, had been returned, and that Ms deThier was going to provide her further information on the reason for the dismissal.
It appears from the evidence that when the Applicant first approached Mr Dorber’s firm for assistance, she advised Mr Dorber that she had worked as late as 15 December 2023. No fault can be laid at the feet of the Applicant’s representative if the instructions the representative receives are simply incorrect. I do not accept that the Applicant had any reasonable basis for holding a view, if in fact she did, that she remained employed by the Respondent after 1 December 2023, including on 6 December and 15 December. The evidence is clear she was not under instruction from anyone from the Respondent with the necessary authority, to perform any paid employment for the Respondent on any days after 1 December 2023. The evidence supports the conclusion that the Applicant simply took it upon herself to respond to requests for assistance from clients of the Respondent after 1 December despite having been dismissed.
There was some focus on an incorrect date of termination being included in the Form F3 that was completed by Mr Kevin Sejpal. It became apparent during his evidence that Kevin Sejpal had never completed such a form before, the Respondent was self-represented at the time, and he incorrectly identified a date in the Form F3 to correspond with the day after the end of the fortnightly pay period that covered the Applicant’s final payslip. Kevin Sejpal had no direct discussions with the Applicant about her termination that could have misled her in relation to the issue concerning her date of termination, and the Form F3 was completed by him well after the time the late Form F2 was filed, so the incorrect information it contained could not have misled the Applicant at any time between the date of termination and the filing of her application. Kevin Sejpal’s error does not change the fact that the Applicant was clearly informed by Ms deThier, on instruction from Darshan Sejpal, that her last day of employment was 1 January 2023.
Further, I do not accept, even if the Applicant did genuinely hold the erroneous view that she somehow remained employed after 1 December, that there is any objectively credible explanation for her holding such a view. I therefore do not accept that the Applicant has a credible reason to explain a delay of 14 days in filing her application. I am not satisfied that the Applicant did not understand she was dismissed from 1 December. However, even if it is accepted that for some inexplicable reason the Applicant did not understand she had been dismissed with effect from 1 December 2023, despite being directly told so, the failure of the Applicant to understand what was clearly communicated to her is not an exceptional circumstance. It is simply a failure to comprehend something which, on any objective assessment, was clearly explained and would be expected to have been understood. The preceding conclusions in relation to the reason for the delay weigh against extending time.
(b)Whether the person first became aware of the dismissal after it had taken effect
The Applicant was advised on 28 November 2023 that the dismissal would have effect from 1 December 2023. This weighs against extending time.
(c)Any action taken to dispute the dismissal
The evidence is that the Applicant first attempted to contact Mr Dorber on 18 December 2023, some 17 days after the dismissal. The evidence is that the Applicant did not give Mr Dorber clear instructions on when she was dismissed. This weighs against extending time.
(d)Prejudice to the Employer
A delay of 14 days is not such a significant delay that it would cause prejudice to the employer. This would favour extending time.
(e)Merits of the Application
As the merits of the matter involve factual disputes that would be required to be assessed by the giving of evidence it would be inappropriate to express a view of the merits of the matter at this stage, and this is a neutral consideration.
(f)Fairness as between the person and other persons in a similar position
There are no other persons in a similar position to the Applicant on the facts of this case and this is a neutral consideration.
Conclusion
I have taken into account each of the matters that I am required to consider in determining whether there are exceptional circumstances in this case to justify an extension of time, and I have reached the conclusion that there are no exceptional circumstances that warrant the extending of time for a further 14 days. On that basis the application is dismissed. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Colin Dorber for the Applicant.
Mr Darshan Sejpal and Mr Kevin Sejpal for the Respondent.
Hearing details:
2024
By Microsoft Teams Video
19 March and 27 March.
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 5
[4] Exhibit 3
[5] Exhibit 4
[6] [2022] FWC 250 (U2022/220).
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