Melissa Barras v Coliban Region Water Corporation T/A Coliban Water
[2025] FWC 200
•21 JANUARY 2025
| [2025] FWC 200 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melissa Barras
v
Coliban Region Water Corporation T/A Coliban Water
(U2024/14878)
| COMMISSIONER PERICA | MELBOURNE, 21 JANUARY 2025 |
Application for an unfair dismissal remedy
On 8 November 2024, Ms. Melissa Barras was dismissed from her employment with the Coliban Region Water Corporation (Coliban Water).
On 10 December 2024, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. Her application was eleven days late.
The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).
For the following reasons, I have decided to grant an extension of time for the making of this application.
Was the Application made within 21 days after the dismissal took effect?
The 21-day period does not include the day on which the dismissal took effect.[1] The dismissal took effect on 8 November 2024. The final day of the 21-day period was 29 November 2024 and ended at midnight on that day.
Ms. Barras’ application was filed on 10 December 2024. It was made 11 days late. I therefore need to consider whether to extend the period to make the application.
I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(a) Ms. Barras’ reasons for the delay;
(b) when Ms. Barras first became aware of the dismissal after it had taken effect;
(c) any action taken by Ms. Barras to dispute the dismissal;
(d) prejudice to Coliban Water (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between Ms. Barras and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Before I commence an assessment of these matters, it is necessary to set out some background facts.
BACKGROUND FACTS
On 1 November 2024, Ms. Barras was informed (subject to acceptance of redeployment opportunities) her role “would be made redundant effective 8 November 2024.[3] Her employment was terminated on 8 November 2024.
Ms. Barras gave oral evidence that in the week commencing 11 November 2024, she did not take steps to pursue an unfair dismissal because she was “occupied dealing with payroll over a novated lease” she had entered during her employment. It was her evidence that this took her “three hours a day” during that period. She also gave evidence that she was dealing with the stress of her employment being terminated.
Attempt to instruct Robertson Hyetts
On 15 November 2024, she contacted the law firm Robertson Hyetts, leaving a message that “I have just been made redundant and have a couple of aspects I would (sic) some advice on”.
On Monday 18 November 2024, Ms. Barras received a response from Robertson Hyetts that “We don’t cover employment law…however we recommend J. S Law located in Bendigo.”
Attempt to instruct Baré Legal
On 19 November 2024, Ms. Barras made an enquiry by way of a “contact form” with a law firm called named Baré Legal. The message she left on that form included “I am needing advice and determination of whether I have a claim regarding a recent redundancy I received from Coliban Water.”[4]
On 20 November 2024, a law clerk from Baré Legal sent a reply to Ms. Barras asking for her contract of employment and “the letter sent to you by Coliban Water in relation to your redundancy”.
On 21 November 2024, Ms. Barras sent Baré Legal a detailed e-mail setting out her concerns relating to the manner of her dismissal and other matters.
On 25 November 2024, a law clerk from Baré Legal sent an e-mail to Ms. Barras to the effect that the firm could not assist her because of a “conflict with this matter”.
Attempt to instruct WR Legal
On 15 November 2024, Ms. Barras was referred to Ms. Rosa Raco of WR Law. On that date, she tried to call her and left a message but did not hear back from Ms. Raco. That is when she approached Baré Legal.
On 26 November 2024, following the refusal of Baré Legal to act for Ms. Barras, she sent a detailed e-mail to Ms. Raco setting out the claims in relation to the termination of her employment and other matters.
On 27 November 2024, Ms. Raco responded she was otherwise occupied and that she would ask a “colleague” to contact Ms. Barras.
Engagement of Ms. Marnie George of MGC Legal Recruitment and HR Consulting
The “colleague” to whom Ms. Barras was referred was Ms. Marnie George of MGC Legal Recruitment and HR Consulting (who continues to act for her in this matter). Mr. Barras explained the engagement of Ms. George in her written submissions of fact which were received into evidence as Exhibit A1:
“On 27 November I had a consultation with Marnie George who began reviewing my documentation and responded to me with details relating to potential breaches, remedies and next steps.”
At the hearing Ms. Barras gave sworn evidence, and Ms. George answered questions regarding the instructions Ms. Barras had given her in this initial consultation.
From the answers given by Ms. George, and the evidence of Ms. Barras, it is unclear whether, at this initial consultation, “next steps” included advice regarding the time limit for filing an unfair dismissal proceeding. This was in circumstances where Ms. George had received instructions from Ms. Barras three days before the expiration of the time limit. Following the consultation, an e-mail was composed with the assistance of Ms. George to be sent to Coliban Water.
On 28 November 2024, Ms. Barras sent an e-mail to Ms. Kristen Swann, the Senior People and Capability Business Partner, and Ms. Bowman-Farr, the General Manager of People and Capability of Coliban Water (with a courtesy copy sent to Ms. George). It was headed “Formal Grievance Regarding Redundancy Process and Related Matters” (from here referred to as the “letter of demand”).
The first and last two paragraphs of the letter of demand were:
“I am writing to formally raise concerns regarding the redundancy process, the handling of my long service leave entitlements, and the workplace environment I experienced during my employment with Coliban Water. These issues have caused significant professional and personal harm, and I am seeking entitlements that align with my entitlements under the Coliban Water Enterprise Agreement 2022, Victorian Public Sector Policies and applicable laws.
…
I am committed to resolving this matter through constructive dialogue and would welcome the opportunity to meet with you and your representatives to discuss these concerns further. I kindly request a written response within five business days to confirm next steps.
If a satisfactory resolution cannot be achieved, I may be compelled to seek further advice and pursue the matter through the fair work commission or other appropriate avenues.”
No written response was forthcoming from Coliban Water until 17 December 2024 which noted “we are unable to locate any written correspondence from yourself or from Marnie George from MGC Legal Recruitment and HR Consulting since your employment concluded with Coliban Water on 8 November 2024.”
There is no dispute the letter of demand was sent by Ms. Barras and received by Coliban Water on 28 November 2024. Ms. Swann from Coliban Water explained once it was received, it was directed to the spam folder by the IT system at Coliban Water and it was not located until after 17 December 2024.
Against this background, I will now assess whether there are exceptional circumstances sufficient to allow an extension of time taking into account the prescribed factors under s 394(3).
Reason for the delay
Submissions and evidence of Ms. Barras and her representative
In her written submissions, Ms. Barras gave a series of reasons why there was a delay in the filing of her unfair dismissal application.
· Her “lack of awareness” of the strict 21-day time limit.
· The “sustained exclusion, undermining, and lack of psychological safety in her role which had a lasting impact on her which compounded the distress she felt during the redundancy process” and the “distress she felt resulting from the circumstances of her termination”.
· She had attempted to engage a series of legal practitioners from 15 to 26 November without success and “at all times I sought professional advice to lodge my application”.
From 27 November 2024, Ms. Barras was receiving professional advice from Ms. George. Ms. George has been involved in human resource management for 15 years. She informed me she was “familiar with the Fair Work Act” and with the “21-day deadline for the filing of unfair dismissal proceedings.”
Ms. Barras and Ms. George gave inconsistent evidence as to whether Ms. George had informed Ms. Barras of the 21-day time limit before they drafted and sent the letter of demand. Ms. George indicated she had informed Ms. Barras of the time limit during the initial consultation up to the sending of the letter of demand. Ms. Barras stated the discussion of lodging an unfair dismissal proceeding had not arisen until after they sent the letter of demand.
I asked Ms. George why they decided to send a letter of demand rather than commence an unfair dismissal proceeding in time. She explained she had sought to give Coliban Water “procedural fairness”. She elaborated in her oral submissions:
“Again, I thought it would disadvantage [Coliban Water] if we didn’t approach them first and again it was a short deadline. There was obviously just two days to get in there… and I thought that under the Fair Work application there was a section about disadvantage to the employer for the merits of the application I thought it was…”
No submissions were made to me to explain the delay until 10 December following the sending of the letter of demand on 28 November 2024. It should be noted that the “five business days” demand for a response in the letter of demand would have taken until 5 December 2024.
Submissions of Coliban Water
At the hearing of this application Coliban Water stated it had no submissions to make on this factor.
Consideration
Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not have to be unique, unprecedented or rare.
The fact Ms. Barras was dealing with the issue of her novated lease for three hours a day in the week following her dismissal is not an exceptional circumstance. She had ample time to seek information about remedies arising from her dismissal during this period.
Both ignorance of the time limit for unfair dismissal applications, and feelings of stress following a dismissal, are routine rather than exceptional.[5] Those explanations cannot provide an adequate reason for a delay in filing an application.
The fact that she had trouble securing the services of a representative for the period from 15 to 26 November 2024 could provide an adequate reason for part of the delay. Three unsuccessful attempts at securing representation might be considered “out of the ordinary course”. I note that as soon as she discovered that a firm did not wish to take her on as a client, she immediately tried another firm.
In Madison Fairfull v. Hamilton Child Care Centre Inc,[6] the Commission held that a delay in filing an unfair dismissal claim to allow settlement discussions (without more) has been held not to be an exceptional circumstance to justify an extension of time. In Fairfull Deputy President Sams held:[7]
“It is regrettable that the applicant instructed her solicitor to delay the filing of her application on 10 December 2014. While settlement discussions are to be encouraged, they do not represent a bar to filing an unfair dismissal application, particularly when a late filing may be fatal to the application being accepted. I am not satisfied that this is an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act.” [emphasis added]
On the evidence before me, it is not clear that Ms. Barras did instruct Ms. George to delay the filing of her unfair dismissal proceeding to allow settlement discussions to take place. From 27 November 2024, Ms. Barras gave instructions to Ms. George to act for her. She sought advice from Ms. George as to the best way forward to prosecute her complaints regarding the manner of her termination.
Ms. George, a human resource professional of 15 years standing, who is familiar with the Fair Work Act2009, was under the impression that “procedural fairness” was owed to the employer before a proceeding was commenced. This is mistaken. In so far as she advised Ms. Barras, based on this mistake, to take the course of sending the letter of demand, rather than commencing an unfair dismissal proceeding could be regarded as a representative error. The time critical nature of this mistake (which occurred three days before the time limit expired) exacerbates the effect of this error.
Office Works Ltd v. David Parker[8] is a Full bench decision which considers representative error. In that decision, the Full Bench stated the following:[9]
“In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned….
In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.”
Ms. George can be described as a person with “professional qualifications or experience in dealing with legal and employment matters”. It was reasonable for Ms. Barras to rely on advice given by an expert as to the best method of prosecuting her grievances. In these circumstances, the delay occasioned by the sending of the letter of demand cannot be sheeted home to Ms. Barras. She relied on her representative for tactical advice which proved incorrect.
The reasons Ms. Barras gives for her delay up to 15 November 2024 related to dealing with issues concerning her novated lease and her stress at being dismissed do not provide an adequate reason for the delay in prosecuting the unfair dismissal proceeding that week.
An applicant does not need to provide a reason for the entire period of a delay. An extension of time may be granted where that applicant has not provided any reason for part of the delay.[10] It follows her inadequate reasons for failing to prosecute her claims in the first week following her dismissal is not fatal to a finding of exceptional circumstances.
Ms. Barras’ difficulty in retaining a representative from 15 November until 26 November 2024 can be regarded as an exceptional circumstance. She had three failed attempts and immediately sought to instruct an alternative on hearing the firms could not act for her. This is an exceptional circumstance which compressed the time she could seek advice in relation to her dismissal prior to the expiration of the 21-day time limit.
The late instructions received by Ms. George on 27 November 2024 was caused by Ms. Barras’s failed attempts at retaining a representative. This led to a time critical element in the advice Ms. George gave to Ms. Barras as to how to prosecute her grievances in relation to the manner of her dismissal. In so far as Ms. George advised Ms. Barras to proceed with the letter of demand, instead of filing the unfair dismissal application in time, is a representative error for which Ms. Barras was blameless. She was relying on the expertise of Ms. George.
Given the decision to send the letter of demand, it is understandable there was a further delay in filing the unfair dismissal proceeding to allow the time specified for a reply to the letter of demand to expire. This delay stems from the representative error.
The reason for the eleven-day delay in this matter can be explained by the difficulty Ms. Barras had in retaining a representative to act for her, together with the representative error by Ms. George in advising Ms. Barras to proceed with the letter of demand rather than to commence an unfair dismissal proceeding in time. Together, those two reasons support an argument that there are exceptional circumstances.
It follows this factor supports an extension of time being granted.
When did Ms. Barras first become aware of the dismissal after it had taken effect?
Ms. Barras was given notice on 1 November 2024 that her employment would be terminated on 8 November 2024. She had the benefit of the full period of 21 days to lodge the unfair dismissal application.
This factor is therefore neutral in a consideration of whether to extend time.
What action was taken by Ms. Barras to dispute the dismissal?
On 28 November 2024, Ms. Barras and Ms. George sent the letter of demand which clearly indicated that she disputed the redundancy process, and the calculation of her termination pay.
It is conceded by Coliban Water that the letter of demand was received by it but went to junk mail. This does not detract from the proposition that before the time limit expired, Ms. Barras had taken steps to dispute her dismissal.
This factor supports an extension of time being granted.
What is the prejudice to Coliban Water (including prejudice caused by the delay)?
Coliban Water conceded there would be no prejudice if an extension of time were to be granted. This factor is therefore neutral in a consideration of whether to extend time.
What are the merits of the application?
Arguments of Ms. Barras
Ms. Barras argues that her application has substantial merit.
She argues the redundancy process was unfair because Coliban Water failed to comply with the consultation process required under the Coliban Water Enterprise Agreement 2022 and the Victorian Public Sector redundancy policies.
In her submissions in support of her extension of time application, she elaborated on her argument regarding the redundancy process:
“The consultation period was limited to one week, this included launching the consultation and meeting with people. This meant many staff only had a couple of days to consider and provide feedback on the proposal. Given the tight timeframe, Coliban Water decided to extend consultation for an additional two days. Implementation occurred two weeks later, noting Coliban Water decided to leave the end date for my redundancy as it was originally, and not provide me with the [additional two days] for consultation to take place. Moreover, some staff were presented with a version of the proposed structure, [at the beginning of the consultation] that included assigned names before the consultation was completed, suggesting a predetermined outcome.”
In addition to the process arguments, Ms. Barrass alleges the dismissal was “unjust” because she was underpaid in her redundancy package and her long service leave entitlements.
Arguments of Coliban Water
Coliban Water made limited oral submissions in this application. The submissions were limited to a denial that the process it followed in Ms. Barras’s redundancy breached its obligations under the Enterprise Agreement or VPS Policies, or that the dismissal was otherwise harsh, unjust or unreasonable. In its Form F3, Coliban Water summarised its response to the allegations made by Ms. Barras as follows:
We submit that“The termination of Ms. Barras’ employment occurred by way a genuine redundancy:
· Operational Change: The role previously held by Ms. Barras is no longer required due to a restructure of the organisation detailed in the notification of change letter sent to Ms. Barras.
· Consultation Obligations: Coliban Water complied with the obligation to consult under the Enterprise Agreement. This was genuine consultation that included formal notification of change, one on one meetings, team meetings, and several opportunities for feedback. During the consultation process, Ms. Barras provided written feedback on two occasions. She attended a face-to-face meeting where feedback was discussed. Each time Coliban Water genuinely considered her feedback and provided her with a response.
· Reasonable Redeployment: We explored redeployment options but did not have a suitable alternative position to redeploy Ms. Barras commensurate with her existing pay rate at Coliban Water.”
Consideration
Having examined the material before me, the merits of this application turn on contested facts, which require a full hearing on the merits. It is not appropriate for the Commission to resolve contested points of fact in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits. Ms. Barras has an apparent case and Coliban Water has an apparent defence.
This factor is therefore neutral in a consideration of whether to extend time.
Fairness as between Ms. Barras and other persons in a similar position
Neither party made relevant submissions on this issue. There is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: The difficulty experienced by Ms. Barras in finding a representative to act for her (and the time it took) and the representative error of Ms. George in advising Ms. Barras to send the letter of demand, rather than commencing an unfair dismissal proceeding, are together exceptional circumstances which support the granting of an extension of time. Therefore, this factor counts in favour of an extension of time under s 394(3)(a).
· Action to dispute the dismissal: It is not contested Ms. Barras took action to dispute the dismissal by sending the letter of demand to Coliban Water before the time limit to file an unfair dismissal proceeding expired. This factor counts in favour of an extension of time being granted under s 394(3)(c).
The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
· Notification of the Dismissal: Ms. Barras was given notice on 1 November 2024 that she would be dismissed from her employment on 8 November. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
· Prejudice to the employer: There is no evidence of prejudice against Coliban Water.
· Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time. In those circumstances, the merits of the application are a neutral consideration under s 394(3)(e).
· Fairness between persons No relevant submissions were made on fairness arising between Ms. Barras and other persons in a similar position.
I conclude the reasons for the delay under s 394(3)(a) counts in favour of an extension of time being granted. The action Ms. Barras took to dispute her dismissal with Coliban Water also counts in favour of an extension of time under s 394(3)(c). All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.
Two factors count in favour of an extension of time being granted and the rest are neutral considerations. Therefore, on balance, taking into account all the factors under s 394, I am satisfied there are exceptional circumstances to justify an extension of time. The time for filing the application is extended to the day the unfair dismissal application was filed. A case management hearing and directions will follow in due course.
COMMISSIONER
Appearances:
Ms. Melissa Barras, the Applicant, on behalf of herself.
Ms. Kristen Swann on behalf of the Respondent.
Hearing details:
Friday, 17 January 2025
Microsoft Teams
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Digital Court Book (from here on DCB) at 157
[4] DCB at 22-23.
[5] Ignorance: Nulty v. Blue Star Group[2011] FWAFB 975 at [14], Stress: Becke v. Edenvale Manor Aged Care[2014] FWCFB 6809 at [9]
[6] [2015] FWC 1035.
[7] Ibid at [15].
[8] [2014] FWCFB 5779.
[9] Ibid at [18],[19].
[10] Stogiannidis v. Victoria Frozen Foods Distributors Pty. Ltd[2018] FWCFB 901 at [39]
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