Merian Cavlov v Robert De Jonge T/A Dukes Real Estate

[2020] FWC 3365

[2020] FWC 3365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Merian Cavlov
v
Robert De Jonge T/A Dukes Real Estate
(U2020/8125)

DEPUTY PRESIDENT MANSINI MELBOURNE, 26 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Merian Cavlov (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] I have determined that the application was filed outside the statutory timeframe and, as I am not satisfied that there are exceptional circumstances, there is no basis to allow an extension of time under s.394(3). Accordingly, the application is dismissed. The reasons for that decision follow.

Procedural context

[3] On 11 June 2020, the Commission received an email attaching this application for an unfair dismissal remedy. On the face of the application, it was identified that the application was filed outside the statutory timeframe and the matter was referred to me for determination of the jurisdictional issue.

[4] The Applicant subsequently filed and the Respondent was served with a witness statement to address the matters at s.394(3) of the Act in accordance with the Commission’s directions.

[5] The matter was listed for Conference/Hearing on 24 June 2020. At the listed time, Mr de Jonge of the Respondent was able to be reached by telephone and informed my Associate that he was not able to attend. An adjournment was granted and the matter was relisted for Conference/Hearing on 25 June 2020. The Respondent was advised that it was not required to file any response in advance and, if it did not attend at the listed time and date, then the Commission may proceed to determine the question of jurisdiction on whatever materials were before the Commission at that time.

[6] At the listed time on 25 June 2020, Mr de Jonge was able to be reached by telephone at which time he informed my Associate that the Respondent would not be attending the proceeding. The Applicant did not want an adjournment to allow for an attempt at resolving the matter by conciliation and requested that the Commission proceed to determine the question of jurisdiction. Accordingly, the matter proceeded by way of determinative conference in the absence of the Respondent. The Applicant gave oral evidence and subsequently filed documents to which she referred in evidence.

[7] The Respondent elected not to file any materials prior to the determinative conference on 25 June 2020 but, later that day, sent an email to chambers in which it broadly opposed the Applicant’s request for an extension of the time for filing and gave a brief response in relation to the substantive application.

Factual context

[8] The Applicant was employed by the Respondent in a permanent part time role since March 2018. In the course of her employment she performed a range of office, administration and trust assistant duties for the Respondent’s real estate business.

[9] The application was filed on 11 June 2020. In it, the Applicant stated that her dismissal was notified on 18 May 2020 and effective that same day. The Applicant said that, on the morning of 18 May 2020, she had noticed Mr de Jonge had changed some of her timebook entries. She said that she told Mr de Jonge that he was “stealing her money” and he responded by yelling a series of expletives at her (which shall not be repeated here). Shortly thereafter, the Applicant left the workplace. The Applicant’s evidence was that she clearly understood her employment had come to an end, effective immediately.

[10] Later on 18 May 2020, Mr de Jonge sent the Applicant a text message as follows:

“Hello and good morning to you Merian. Please feel free to come in when you get a chance and complete the finalisation of your workplace at dukes real estate. Thank you so much for doing all that excellent work. By the way you will need to bring that time book in. Maybe give it a week. Have an enjoyable day. Rob de Jonge.”

[11] The Applicant did not return to the workplace again after 18 May 2020. Although she was unsure whether she was entitled to payment in lieu of notice, the Applicant alleged that she has not been paid final entitlements owed. She said Mr de Jonge had been attempting to make contact with her, including by email of 25 May 2020 which included an “apology” for the Respondent’s “behaviour, swearing and outburst” on 18 May 2020 (which the Applicant stated she did not accept), a response to the Applicant’s contentions about the tax, money and timebook issues, stated that Mr de Jonge had tried to discuss it with the Applicant and also included a statement that Mr de Jonge “would love to offer you your job back”.

[12] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1 An employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct” and, in a case of dismissal without notice, needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed.2

[13] On the Applicant’s evidence and materials filed, I consider that the Applicant’s dismissal was communicated to her on and effective on 18 May 2020 in such a way that she could reasonably understand, and in fact knew, that she was dismissed effective immediately. That the Respondent may not have attended to payment of any final entitlements (about which I make no finding) does not alter the conclusion that the Applicant’s dismissal took effect on 18 May 2020, in accordance with the Respondent’s communication to her of same date.

[14] Accordingly, the period of 21 days ended at midnight on 8 June 2020. The application was therefore filed 3 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). By its email of 25 June 2020, the Respondent opposed this request.

Should time be extended?

[15] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 3 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.4

[16] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[17] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[18] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[19] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 5

[20] The Applicant cited several failed attempts at filing as the reason for the delay in lodging the application. Around seven days after her dismissal, the Applicant contacted the Fair Work Commission by telephone and was given information about lodging this application. She said that she then made three attempts to lodge the application: on 29 May 2020, by completing an F2 Form in Word and attempting to attach and submit it online; on 3 June 2020, by completing the online F2 Form and attempting to submit it online; and by causing a copy of the F2 application which she believed was submitted online to be lodged by post which she posted on 3 June 2020. The Commission has no record of receipt of any of these attempts. There are no records (such as online lodgement receipts or postal receipt or tracking number) which objectively verify these claims.

[21] On 11 June 2020, the Applicant said she telephoned the Commission to follow up as she had not been contacted about making payment. She was advised that the Commission had no record of her application. The Applicant submitted an application by email that same day, which attached a Form F2 dated 29 May 2020, which was received by the Commission at 4.10pm (AEST).

[22] The application was not lodged until 11 June 2020. In the absence of any documentary evidence and without more, Ido not consider the Applicant’s claims of prior attempts,individually or together, to be an acceptable or reasonable explanation for the delay. Within the statutory timeframe, the Applicant was aware of how to and did access information and support in order to file her application; and she was aware of the 21 day timeframe, but failed to comply. In any event, mere ignorance is not sufficient or reasonable explanation for delay. 6

[23] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[24] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. In the circumstances of this matter, I consider this to weigh slightly against a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[25] The Applicant did not contend that any steps were taken which would constitute ‘action to dispute the dismissal’ other than the filing of this claim. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[26] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[27] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent has an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[28] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[29] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[30] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720528>

Appearances:

Ms M. Cavlov, Applicant, on her own behalf

Hearing via telephone:

2020
25 June.

 1   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 2   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17] and [48].

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].

 4   Ibid.

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 6   Nultyat [14].