Marilyn Chand v Sydney Trains

[2023] FWC 1746

[2023] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marilyn Chand
v

Sydney Trains

(U2023/4873)

COMMISSIONER CRAWFORD SYDNEY, 18 JULY 2023

Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed

1. Marilyn Chand (Ms Chand) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Sydney Trains.

1. Ms Chand was dismissed on 10 May 2023 based on five allegations of not declaring and/or obtaining written consent for secondary employment and making false declarations concerning secondary employment. Sydney Trains determined that each allegation was substantiated and each constituted a breach of the Sydney Trains Code of Conduct. The alleged secondary employment relates to the operation of a business named ‘Fiji Spice’ which promotes traditional Fijian food via providing catering at cultural and sporting events. 

1. Sydney Trains has objected to the application on the ground that the application is out of time.

1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

1. Section 394(2) of the FW Act provides that such an application must be made:

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

(b)   within such further period as the Commission allows.

1. I issued directions on 15 June 2023 for the filing of material in relation to the extension of time issue, which were complied with by the parties. I also granted Ms Chand leave to file additional material, on the basis that Sydney Trains would be provided with an additional opportunity to respond. Although it is clearly important for parties to comply with directions concerning the filing of material, I considered it preferable on balance to allow Ms Chand to provide the further material and to allow Sydney Trains a reasonable opportunity to provide a response.

1. The parties subsequently agreed to the extension of time issue being determined on the papers. I indicated I was satisfied this was appropriate given the lack of any significant factual dispute between the parties meant the mandatory requirement for a conference or hearing prescribed in s.397 of the FW Act was not triggered.

Material filed

1. In addition to her Form F2 – Unfair dismissal application, Ms Chand filed the following evidence in support of an extension of time being granted:

·Statement of Marilyn Chand dated 12 June 2023. This statement had nine documents attached and marked MC-1 to MC-9; and

·Supplementary statement of Marilyn Chand dated 5 July 2023 with two documents attached and marked MC-10 and MC-11. 

1. Ms Chand also filed the following submissions:

·Outline of submissions dated 12 June 2023;

·Reply submissions dated 30 June 2023; and

·Supplementary submissions dated 6 July 2023.

1. In addition to its Form F3 – Employer response to unfair dismissal application, Sydney Trains filed the following submissions:

·Outline of submissions dated 23 June 2023; and

·Supplementary submissions dated 14 July 2023.

Summary of the material filed

Ms Chand’s statement dated 12 June 2023

1. Ms Chand’s statement indicated she attended a meeting where she was advised of her dismissal on 10 May 2023.[1] Ms Chand attended the meeting with Matt Bindley (RTBU Organiser) because Helen Bellette, the RTBU Industrial Officer who had been managing her matter, was unavailable.[2] Ms Bellette sent Ms Chand an email on 8 May 2023 which clarified Mr Bindley would attend the meeting and provided the following information about the filing period for an unfair dismissal application:

“Also, as we further discussed, you have 21 days from receipt of the dismissal letter (you will receive it on Wednesday) to file an unfair dismissal. You discussed using a lawyer outside the union to represent you; please note this would be at your own expense, and if you require us to send over your files, you would need to authorise this; I am very conscious of the deadline, so please make a date in your calendar so it does not fall through the cracks.”[3]

1. Ms Chand gave evidence that she asked Mr Bindley about the process for making an unfair dismissal application during or after the dismissal meeting on 10 May 2023 and Mr Bindley stated ‘he wasn’t sure’.[4] Ms Chand gave evidence that Ms Bellette had not identified a specific due date[5] and Ms Chand was under the belief that the 21-day period was directed at working days rather than calendar days, primarily because the appeals process within Sydney Trains stipulates due dates in working days rather than calendar days.[6]

1. Ms Chand’s statement refers to her taking the following actions after the dismissal meeting on 10 May 2023:

·Ms Chand called Ms Bellette’s manager, Toby Warnes, at 10:21am on 10 May 2023 and left a voice message.[7] She also sent a text message to Mr Warnes asking him to call her back at 12:13pm.[8]

·On 15 May 2023, Ms Chand made a phone appointment to meet with Grant Spedding from The Lawman firm after not hearing back from the RTBU.[9]

·On 16 May 2023, Ms Chand sent a text message at 6:01pm to an RTBU Delegate, Michael Marsland, to seek assistance.[10]

·On 17 May 2023, Mr Marsland responded via text message with a number for Ms Chand to call and indicated Mr Warnes would take the call.[11]

·Ms Chand provided text messages to show she had messaged Mr Marsland on 17 and 18 May 2023 indicating she was still having trouble getting in contact with Mr Warnes.[12]

·Ms Chand met with Mr Spedding on 18 May 2023 and gave evidence he did not mention any specific due date for the application.[13]

·On 19 May 2023, Ms Chand contacted Frank Vouroudis of Photios Vouroudis and Co and was then referred to John Morrisey at Andre Yev Lawyers.[14]

·On 29 May 2023, Ms Chand sent an email to Ms Bellette and Mr Warnes asking for the files relating to her previous suspensions by 30 May 2023.[15]

·Ms Chand provided email evidence confirming she was attempting to arrange an appointment with Andre Yev Lawyers for around 7 or 8 June 2023.[16]

·Ms Chand communicated with Mr Warnes on 1 June 2023 and raised concerns about whether she could afford to pay for external legal help. This apparently resulted in the RTBU arranging the filing of the unfair dismissal application on 2 June 2023.  

1. Ms Chand also provided some evidence about the merits of the application which was directed at the nature of the Fiji Spice business and whether she had previously informed Sydney Trains about the business.[17]

Ms Chand’s supplementary statement dated 5 July 2023

1. Ms Chand’s supplementary statement confirms she has been dealing with some serious medical issues from April 2023 onwards. This included attending an appointment for a mammogram and ultrasound on 27 April 2023, attending an appointment with a specialist on 8 May 2023 and attending Bankstown Lumus Imaging Centre for medical procedures on 10 and 12 May 2023. The treatment had not concluded when Ms Chand signed the supplementary statement on 5 July 2023.[18]

1. Ms Chand also referred to being charged $825 by an external lawyer to read her material and indicated this led to her reverting to the RTBU for assistance.[19]

Summary of the submissions

Outline of submissions for Ms Chand dated 12 June 2023

1. The outline filed by Ms Chand refers to confusion about whether the 21-day period was directed at working days or calendar days and to Ms Chand being poorly informed by external lawyers about the due date.[20] It was submitted that Sydney Trains was not prejudiced in any meaningful manner by the delay[21] and raised some arguments around the merits of the application.[22] 

Outline of submissions for Sydney Trains dated 23 June 2023

1. The outline filed by Sydney Trains summarised the relevant authorities regarding an extension of time[23] and raised the following arguments in support of its position that an extension should not be granted:

·Ms Chand sought assistance from the RTBU prior to being dismissed and was informed both verbally and in writing by Ms Bellette of the 21-day timeframe.[24]

·Ms Chand has not filed any evidence that she actually engaged any external law firms or instructed any firm to file an unfair dismissal application.[25]

·There was no reasonable basis to conclude that the statutory deadline was calculated by reference to working days. Ms Chand’s misapprehension is a commonplace mistake and not an exceptional circumstance.[26]

·There is no evidence Ms Chand instructed the RTBU to lodge an unfair dismissal application by 31 May 2023. The text messages filed by Ms Chand indicate she was enquiring about long service leave entitlements.[27] There is no evidence Mr Spedding or Mr Morrisey was instructed to file an unfair dismissal application and Ms Chand did not arrange to meet Mr Morrisey until 8 June 2023.[28] In the circumstances, there is no evidence Ms Chand had a ‘representative’ prior to 31 May 2023 and hence no representative error can be established.[29]

·If the Commissionfinds there was a representative prior to 31 May 2023, there was no error by any of the representatives. The RTBU advised Ms Chand of the deadline via Ms Bellette, it can be inferred Mr Spedding did inform Ms Chand of the deadline and there is no evidence of what Mr Morrisey told Ms Chand.[30]

·Ms Chand’s conduct contributed significantly to the delay and she has not provided an explanation that would satisfy the ‘exceptional circumstances’ threshold.[31]

·There is no evidence Ms Chand took any action to dispute the dismissal beyond lodging an unfair dismissal application.[32]

·There is some prejudice to Sydney Trains because it is entitled to assume applications will be filed within the 21-day timeframe. Alternatively, this is a neutral factor.[33]

·The merits of the application weigh against an extension because there is a valid reason, Ms Chand has a prior disciplinary history and procedural fairness was afforded. Alternatively, this factor is neutral.[34]

·Fairness between Ms Chand and other persons in a like position is a neutral factor.[35]

Ms Chand’s reply submissions dated 30 June 2023

1. Ms Chand raised the following arguments in reply to the submissions filed by Sydney Trains:

·The factors raised by Ms Chand both singularly and collectively combined to meet the exceptional circumstances test.[36]

·Ms Chand did not sit idly by, she sought assistance from the RTBU and external law firms in a timely manner and this weighs in favour of a finding of exceptional circumstances.[37]

·Ms Chand queried the process for filing an unfair dismissal application with Mr Bindley on 10 May 2023 and contacted the RTBU on 29 May 2023 to try and arrange for her file to be sent to an external law firm.[38]

·The delay in filing was brief and any prejudice to Sydney Trains is minimal.[39]

·The authorities require Ms Chand’s case to be considered at its most favourable for the exceptional circumstances test. Sydney Trains arguably made an error of fact in concluding that Ms Chand’s involvement in the Fiji Spice enterprise required disclosure under Sydney Trains’ secondary employment policy and also did not take into account that Ms Chand informed two Sydney Trains managers about the enterprise, Keara Byrne and Simon Jobson.[40]

·Fairness between Ms Chand and other persons is a neutral consideration.[41]

Ms Chand’s supplementary submission dated 6 July 2023

1. Ms Chand’s supplementary submission accompanied her supplementary statement dated 5 July 2023, which disclosed that Ms Chand was dealing with serious health issues from April 2023 onwards. The submission argued this medical situation and the stress and anxiety it caused meets the exceptional circumstances test.[42]

Sydney Trains’ reply to Ms Chand’s supplementary submission dated 14 July 2023  

1. Sydney trains argued in reply that Ms Chand has provided no medical evidence to establish she has been experiencing stress and anxiety.[43] The last medical appointment relied upon by Ms Chand occurred on 12 May 2023 and there was a significant period of time between that appointment and the filing deadline of 31 May 2023.[44]

1. Ms Chand complains she was misinformed by a representative but has not provided any evidence to substantiate this.[45]

Consideration

When did the dismissal take effect?

1. There is no dispute that Ms Chand’s dismissal took effect on 10 May 2023.

When was the application made?

1. There is no dispute that Ms Chand filed her unfair dismissal application on 2 June 2023.

Was the Application made within 21 days after the dismissal took effect?

1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[46]

1. Given Ms Chand was dismissed on 10 May 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 31 May 2023. The application was filed on 2 June 2023. There is no dispute between the parties that the application was filed two days outside the 21-day period and that Ms Chand needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   whether Ms Chand first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Ms Chand 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 Ms Chand and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[47]

1. I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 31 May 2023. The delay is the period commencing immediately after that time until 2 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[48]

1. 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.[49]

1. Ms Chand does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Ms Chand has not provided any reason for any part of the delay.[50]

1. The reasons identified by Ms Chand for the delay are:

·Confusion about whether the 21-day timeframe was directed at working days or calendar days.

·Poor provision of information by external lawyers.

·Serious health issues she was dealing with from April 2023 onwards.

1. Ordinarily, I would not consider confusion about whether the 21-day timeframe is directed at 21 working days or 21 calendar days to be a very compelling explanation for a delay in filing. However, I do accept Ms Chand has provided evidence the internal review processes undertaken by Sydney Trains prior to her dismissal prescribed timeframes in working days and that this could create a degree of confusion for Ms Chand. Further, Ms Chand’s evidence that she believed the 21-day period referred to working days rather than calendar days was not challenged in cross-examination. The evidence also discloses Ms Chand was agreeing to meet with Andrey Yev lawyers about her situation on 8 June 2023. Ms Chand’s willingness to agree to this meeting date is consistent with her not being aware that the 21-day timeframe had lapsed on 31 May 2023.      

1. Of more significance is the uncontested evidence from Ms Chand that she was dealing with some serious health issues from April 2023 and that the testing and treatment process is ongoing. Although I accept Sydney Trains’ submission that Ms Chand did not file medical evidence to substantiate she was suffering from stress and anxiety, I am prepared to accept this was the case at least to some degree given the serious medical issues she was facing and because her evidence of suffering stress and anxiety was not contested via cross-examination. I do not consider the argument from Sydney Trains that Ms Chand’s last identified appointment was on 12 May 2023 which is well before the filing deadline of 31 May 2023 is overly compelling, given she has provided uncontested evidence that her treatment is ongoing. 

1. I accept the submission from Sydney Trains that there is insufficient evidence regarding the instructions provided to Mr Spedding and Mr Morrisey to conclude that Ms Chand was provided with poor advice concerning the filing deadline. I consider these events to be more relevant to the assessment of steps Ms Chand took to dispute the dismissal.  

1. In the circumstances, I accept Ms Chand’s medical condition, in conjunction with some confusion around whether the 21-day period referred to working days or calendar days, provides an acceptable explanation for the delay. This matter weighs in favour of the granting of an extension. 

Did Ms Chand first become aware of the dismissal after it had taken effect?

1. It was not in dispute that Ms Chand was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by Ms Chand to dispute the dismissal?

1. As submitted by the RTBU, the Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[51] accepted that taking steps to seek legal advice about a dismissal constituted action to dispute the dismissal independent of a later out-of-time application.

1. In this case, I am satisfied on the uncontested evidence that Ms Chand took at least the following steps to dispute her dismissal:

·Although it occurred prior to the dismissal, Ms Chand utilised Sydney Trains’ internal review mechanism to contest the proposed decision to terminate her employment.

·Ms Chand asked Mr Bindley about the process for making an unfair dismissal application on 10 May 2023.

·Ms Chand made several attempts to contact Mr Warnes on 10 May 2023, 18 May and 22 May 2023. I accept some of these later communications appear directed more at pro rata long service leave, but it’s not clear from the brief messages whether this was all Ms Chand wanted to discuss. 

·Ms Chand contacted an RTBU Delegate, Mr Marsland, on 17 May 2023.

·Ms Chand met with an external lawyer, Mr Spedding, on 18 May 2023.

·Ms Chand contacted another law firm, Andre Yev Lawyers, on 19 May 2023 and arranged to meet with them in early June 2023.

·Ms Chand contacted Mr Warnes again on 1 June 2023, leading to the filing of the unfair dismissal application.

1. I am satisfied these actions were taken by Ms Chand to dispute the dismissal and consider these actions weigh in favour of the granting of an extension.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. I accept Sydney Trains’ submission that there is a minor amount of prejudice caused by the delay because it was entitled to assume Ms Chand would have filed an application within the 21-day period if she intended to contest the application, particularly given the date of dismissal was clear and notice of the decision was clearly communicated. 

What are the merits of the application?

1. It appears reasonably likely there has been at least a technical breach of Sydney Trains’ Code of Conduct associated with Ms Chand’s failure to disclose her involvement in the Fiji Spice enterprise. There are also allegations of false declarations on workers’ compensation forms. These are potentially serious matters. I also note Ms Chand was suspended without pay for three months on 22 March 2022 in relation to separate allegations of misconduct.

1. However, it is not immediately apparent that Ms Chand’s involvement in an enterprise directed at providing catering services for Fijian cuisine would generate any meaningful conflict with her duties as a Sydney Trains employee and she intends to argue that she did make an internal disclosure to Ms Byrne and Mr Jobson about her involvement.

1. Given there will be a need to resolve some significant factual contests in determining the unfair dismissal application, I intend to treat this as a neutral factor.      

Fairness as between Ms Chand and other persons in a similar position

1. 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.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. 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.[52] 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.[53]

1. Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

1. The main reasons for arriving at this decision are the serious health issues Ms Chand has been dealing with since April 2023, her uncontested evidence about being confused regarding whether the 21-day period related to calendar days or working days and the various actions Ms Chand took to dispute her dismissal. There is some prejudice to Sydney Trains, which I have taken into account, but consider this is a minor factor given the delay was only two days. I consider the merits of the application to be a neutral consideration.

Conclusion

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

2. Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 2 June 2023.

COMMISSIONER

Matter determined on the papers.

[1] Statement of Marilyn Chand at [2].

[2] Statement of Marilyn Chand at [3].

[3] Attachment MC-2 to the statement of Marilyn Chand.

[4] Statement of Marilyn Chand at [5].

[5] Statement of Marilyn Chand at [8].

[6] Statement of Marilyn Chand at [9] and Attachment MC-5.

[7] Attachment MC-3 to the statement of Marilyn Chand.

[8] Attachment MC-4 to the statement of Marilyn Chand.

[9] Statement of Marilyn Chand at [11].

[10] Statement of Marilyn Chand at [13] and Attachment MC-6.

[11] Attachment MC-6 to the statement of Marilyn Chand.

[12] Attachment MC-6 to the statement of Marilyn Chand.

[13] Statement of Marilyn Chand at [12].

[14] Statement of Marilyn Chand at [14].

[15] Attachment MC-7 to the Statement of Marilyn Chand.

[16] Attachment MC-7 to the statement of Marilyn Chand.

[17] Statement of Marilyn Chand at [18] to [20] and Attachment MC-9.

[18] Supplementary statement of Marilyn Chand at [2] to [10] and Attachments MC-10 and MC-11. 

[19] Supplementary statement of Marilyn Chand at [11].

[20] Ms Chand’s outline of submissions at [7] and [9]. 

[21] Ms Chand’s outline of submissions at [11].

[22] Ms Chand’s outline of submissions at [12] to [18].

[23] Sydney Trains’ outline of submissions at [8] to [11].

[24] Sydney Trains’ outline of submissions at [5].

[25] Sydney Trains’ outline of submissions at [6].

[26] Sydney Trains’ outline of submissions at [13].

[27] Sydney Trains’ outline of submissions at [15].

[28] Sydney Trains’ outline of submissions at [16] and [17].

[29] Sydney Trains’ outline of submissions at [18].

[30] Sydney Trains’ outline of submissions at [20] to [22].

[31] Sydney Trains’ outline of submissions at [24] and [25].

[32] Sydney Trains’ outline of submissions at [28].

[33] Sydney Trains’ outline of submissions at [29] and [30].

[34] Sydney Trains’ outline of submissions at [31] to [34].

[35] Sydney Trains’ outline of submissions at [35].

[36] Ms Chand’s reply submissions at [3].

[37] Ms Chand’s reply submissions at [4] and [5].

[38] Ms Chand’s reply submissions at 12] and [14].

[39] Ms Chand’s reply submissions at [16].

[40] Ms Chand’s reply submissions at [17] to [21].

[41] Mc Chand’s reply submissions at [22].

[42] Ms Chand’s supplementary submission at [12].

[43] Sydney Trains’ reply to supplementary submission at [5] and [6].

[44] Sydney Trains’ reply to supplementary submission at [7].

[45] Sydney Trains’ reply to supplementary submission at [9].

[46] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[47] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[48] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[49] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[50] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[51] [2021] FWCFB 2606 at [31].

[52] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[53] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

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