Miranda Ward v Lobethal Abattoirs Pty Ltd
[2021] FWC 6068
•7 OCTOBER 2021
| [2021] FWC 6068 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section.394—Unfair dismissal
Miranda Ward
v
Lobethal Abattoirs Pty Ltd
(U2021/8168)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 7 OCTOBER 2021 |
Application for an unfair dismissal remedy - extension of time – discretionary considerations – no exceptional circumstances – application dismissed
[1] On 8 September 2021 Miranda Ward (Ms Ward) made an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to a dismissal by Lobethal Abattoirs Pty Ltd (Lobethal Abattoirs or the employer) which took effect on 9 August 2021.
[2] Ms Ward’s application was made thirty days after the alleged dismissal took effect, being nine days beyond the statutory time-limit.
[3] For Ms Ward’s application to proceed it would require the Commission to grant an extension of time.
[4] Ms Ward seeks that extension.
[5] Lobethal Abattoirs oppose the application for an extension. It also opposes the application on the merits.
[6] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.
[7] I issued directions on 16 September 2021. Information about an extension of time and the factors the Commission is required to take into account were provided to the parties.
[8] Ms Ward sought permission to be represented by her solicitor. This was not opposed. By decision on 1 October 2021 1, I granted permission.
[9] Ms Ward filed materials in advance of the hearing and the employer filed a response (form F3).
[10] I heard the extension of time matter (only) by video on 5 October 2021 (Ms Ward appearing by phone only). Ms Ward was represented by her solicitor. Lobethal Abattoir were self-represented.
[11] Following the hearing, I reserved my decision.
Evidence
[12] Ms Ward gave evidence on her statement 2. Though the employer did not file a witness statement in advance, as it became clear on hearing Ms Ward’s evidence that one factual matter was in dispute, I granted leave for an officer of Lobethal Abattoir (Mr Cisko Tudich, Human Resources Manager) to give evidence on the disputed issue.
[13] The disputed issue concerned whether Ms Ward did, at the conclusion of the face-to-face dismissal meeting on 9 August 2021, review and sign (electronically) an on-line internal company record of her termination 3. Upon hearing the oral evidence from both sides, the matter in contention was not whether Ms Ward was shown and read the document at that time but narrowed to whether Ms Ward signed the document after being shown it.
[14] To the extent relevant to the extension of time issue, I prefer the evidence of Mr Tudich on this point. Mr Tudich was specific that Ms Ward was asked to come across the room and sit in front of the computer and read the document, that Ms Ward did so and read the document for a reasonable period, and then signed using the electronic signature method. The document in evidence has a signature that appears to be that of Ms Ward under the heading ‘employee signature’. Although her recall was vague, Ms Ward recalled that she did move to the computer and did read the document, but did not believe she signed it. Considered overall, I find that the document R2 was read and signed by Ms Ward before she left the workplace on 9 August 2021 (but only after the decision to dismiss, and Ms Ward was not provided a copy).
[15] The relevance of this factual dispute (the signature) to the extension of time issue is that the document (R2) discloses a reason for termination. Of more material relevance than the signature is whether it was read. It was read. The document even in an unsigned form, together with Ms Ward’s oral evidence that she was told of the reason for dismissal in general terms, leads me to find that Ms Ward was notified of the reason for dismissal at the time of her dismissal (but not provided written documentation).
Facts
Ms Ward’s employment
[16] Ms Ward had been a full time employee at Lobethal Abattoir for nearly two years before dismissed on 9 August 2021.
[17] Ms Ward was dismissed for misconduct. The particulars alleged were that Ms Ward returned a positive drug sample (for amphetamine) on 4 August 2021. Lobethal Abattoir assert dismissal was authorised under the company’s drug and alcohol policy. 4
[18] Ms Ward was dismissed following two face-to-face meetings held on 9 August 2021. The first was an allegations meeting where an allegation of a positive test of 4 August 2021 was put. Ms Ward responded to the effect that the positive reading may have been the product of intimacy. The employer paused the meeting, took further advice, and then made a decision to terminate. The second meeting was a dismissal meeting that immediately followed.
[19] At the dismissal meeting, Ms Ward was informed she was dismissed and that she was dismissed for misconduct. The particulars of the misconduct were, in general terms communicated to Ms Ward. Following as it did from the allegations meeting, I am well satisfied that the reason was readily apparent to Ms Ward. She was told by the employer that, in its view, she had breached the drug and alcohol policy by testing positive for amphetamines. This was then notated in the internal company record which Ms Ward read and (I have found) signed at the conclusion of the meeting: 5
“…The pathology results confirmed that Amphetamine is detected and she will be terminated for breach of the drug and alcohol policy due to 2 failed drug tests within 12 month period.”
[20] At the meeting Ms Ward was told by Lobethal Abattoir that she would be sent a written separation certificate.
[21] Ms Ward was not provided a written letter of termination, neither at the time of termination nor subsequently. I do not find that Ms Ward was promised a written letter of termination, as suggested by Ms Ward. Ms Ward’s evidence to this effect was vague. When she telephoned the employer in the weeks that followed seeking the promised written documentation, it was only a separation certificate she followed up.
Ms Ward’s conduct post-dismissal
[22] On 17 August 2021, approximately one week after dismissal, Ms Ward had not received the promised separation certificate. She wanted the separation certificate because she wanted to claim Centrelink unemployment benefits. Ms Ward telephoned Lobethal Abattoir and was put through to Mr Tudich. Mr Tudich told Ms Ward there was a delay caused by a change in company systems but that the certificate would be sent as soon as possible.
[23] The separation certificate (on a pro forma Australian government Centrelink form) was completed by Lobethal Abattoirs on 24 August 2021 6 and sent that day by email to Ms Ward.
[24] Ms Ward’s evidence in chief was that she followed up the certificate twice, not just once. I do not make a finding to this effect. Ms Ward’s evidence was vague on this point and the person she says she spoke to a second time was not a name known to Mr Tudich. Though it is possible Ms Ward did do so, on the balance of probabilities I find that she made one call, on 17 August 2021. Even if Ms Ward had made two calls, for reasons that follow, my decision in this matter would be unaltered.
[25] Seven days after receiving the separation certificate, Ms Ward contacted Websters Lawyers wanting to speak to someone about challenging her dismissal. An appointment was made for her to speak to Mr Irvine. Mr Irvine was not available until the following day (1 September 2021).
[26] On 1 September 2021 and again on 3 September 2021 Ms Ward spoke to Mr Irvine. It was in these conversations that Ms Ward was informed that a 21-day period for filing unfair dismissal claims existed, and that this period had just passed. Ms Ward indicated that whilst she wanted to proceed, she would confirm her instructions and send the separation certificate to her solicitor.
[27] On 6 September 2021 Ms Ward sent her solicitor the separation certificate and confirmed her instructions to proceed to file an unfair dismissal claim and seek an extension of time.
[28] Ms Ward’s solicitors prepared and dated an application on 7 September 2021 and filed it in the Commission the following day, 8 September 2021.
Consideration
[29] Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[30] Ms Ward’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[31] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.7
[32] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.8 A decision whether to extend time under section 394(3) involves the exercise of a discretion.9
[33] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”10
[34] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
Status of the application
[35] It is not in dispute that Ms Ward’s unfair dismissal application is out of time by nine days and can only proceed if an extension of time is granted. The final day for filing the application within the statutory time frame was 30 August 2021.
[36] I now consider each of the factors in section 394(3).
Reason for the delay (section 394(3)(a))
[37] The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.11
[38] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.12
[39] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.13
[40] Two reasons are advanced by Ms Ward for the delay:
• she had a genuine desire to challenge her dismissal from the time she was dismissed but was ignorant of the 21-day time limit until informed of it by her solicitor; and
• Lobethal Abattoir unduly delayed in sending her written documentation about her dismissal which precluded her from properly taking advice and instructing her solicitor to make a claim.
[41] Neither of these explanations for the delay individually or collectively weigh in favour of granting an extension.
[42] It is well established that ignorance of the statutory time limit is not a reasonable explanation for the delay. 14 Accepting for the purpose of this decision that Ms Ward felt genuinely aggrieved at the time of dismissal, she took no steps to inform herself of what her legal rights and obligations were until 31 August 2021. By then, the statutory time limit had expired (by one day).
[43] Further, having been told of the 21-day statutory time limit by her solicitor on 1 September 2021 it was a further week before her application was filed. In those final seven days, Ms Ward was no longer ignorant of the statutory time frame, yet that amount of time was allowed to elapse.
[44] The more substantive explanation for delay is that Ms Ward was waiting for written documentation about her dismissal from her former employer. There was indeed a delay in Lobethal Abattoirs sending Ms Ward the separation certificate that had been promised. It was not sent until 24 August 2021, some fifteen days after the dismissal. However, for the following reasons this does not weigh in favour of granting an extension.
[45] Firstly, the separation certificate told Ms Ward nothing more than she already knew about her dismissal. Indeed, the originating proceeding she filed in the Commission contained considerably more detailed information than the separation certificate. The information in her application was based on what she instructed her solicitor. In turn, this detail was based on the knowledge Ms Ward had from the 9 August 2021 meetings. It was not dependant or contingent on the information in the separation certificate.
[46] Secondly, whilst the employer kept Ms Ward waiting for the certificate, and whilst Ms Ward, to her credit, initiated contact with the employer to see when it would arrive, it was a certificate she needed primarily for Centrelink purposes, not to prosecute her unfair dismissal rights. Whilst I accept that Ms Ward intended (and did) provide it to her solicitor, it was not the basis on which she formed the view that she wanted to take action. Her own evidence is that she wanted to take action from the time she was dismissed, which was well before she received the certificate.
[47] Thirdly, Ms Ward received the certificate six days before the statutory time limit expired. She did not contact her solicitor in this period even though, by then, she had the certificate.
[48] Fourthly, it was not until 6 September 2021 that Ms Ward provided the certificate to her solicitor. By then she had had it for thirteen days. In the final six of those thirteen days (1 to 6 September 2021) Ms Ward was aware that she was already out of time.
[49] Considered overall, the explanations for the delay, taken individually and collectively, do not weigh in favour of a conclusion of exceptional circumstances and a grant of an extension of time.
Awareness of the dismissal taking effect (section 394(3)(b))
[50] Ms Ward was aware on 9 August 2021 that her employment had ceased on the ground of misconduct.
[51] I am well satisfied that Ms Ward was sufficiently aware, from that date, of the reason for dismissal so as to be able to seek meaningful advice and to provide informed instructions.
[52] This does not weigh in favour of an extension of time.
Action taken to dispute dismissal (section 394(3)(c))
[53] Ms Ward took no action to dispute her dismissal until contacting Websters Lawyers on 31 August 2021, twenty-two days after dismissal and seven days after she received the separation certificate.
[54] Whilst I take into account that Ms Ward did initiate contact with the employer on 17 August 2021 to find out when she could expect to receive the separation certificate, she did not alert Lobethal Abattoir at that time to a contest or dispute over the fairness of her dismissal. Concern over late provision of a post-dismissal separation certificate falls well short of objective evidence of action akin to disputing the dismissal.
[55] This factor does not weigh in favour of an extension of time.
Prejudice to the employer (section 394(3)(d))
[56] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 15
[57] If the time for lodgement is extended, Lobethal Abattoir would have to further respond to the claim, involving time and cost. However, the nature of the prejudice is not unique.
[58] However, the absence of prejudice would not itself be a reason to grant an extension.16
[59] This is a neutral consideration.
Merits of the application (section 394(3)(e))
[60] A hearing will necessarily concern the employer’s drug and alcohol policy and whether, in fact, Ms Ward attended for work with a positive reading for amphetamines on one or two occasions in the preceding 12-month period. Further, on Ms Ward’s application procedural fairness issues arise, including that her hypothesis for the positive reading was not properly considered and that she was not provided a letter of termination.
[61] As I have not heard evidence on these matters, it is not possible to form a view, even a provisional view, as to whether the merits of Ms Ward’s case are strong or weak.
[62] In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[63] No evidence or submissions from Ms Ward or Lobethal Abattoir raise issues of fairness with and between other persons.
[64] In the circumstances, this is not a relevant factor.
Conclusion on extension of time
[65] No factors weigh in favour of a conclusion of exceptional circumstances, individually or in combination.
[66] The period of delay (nine days) is not insignificant particularly bearing in mind the statutory time limit.
[67] The explanations for the delay do not support a finding of exceptional circumstances. There is nothing exceptional in a dismissed employee being ignorant of the statutory time frame and there is nothing exceptional in a dismissed employee being required to wait a period of time for a separation certificate to be sent by their former employer.
[68] Ms Ward did not act with urgency to obtain advice following her dismissal. Nor did Ms Ward act with urgency in the delay period, including in the period after she received the separation certificate from Lobethal Abattoirs. Nor was the separation certificate a necessary ingredient to enable Ms Ward to take advice and provide instructions.
[69] There being no exceptional circumstances, the time for lodging the claim cannot be extended.
Conclusion
[70] As Ms Ward’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed further. The application is dismissed. An order 17 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr M Irvine, with permission, on behalf of Miranda Ward
Mr C Tudich, on behalf of Lobethal Abattoirs Pty Ltd
Hearing details:
2021
Adelaide (by video)
5 October 2021
Printed by authority of the Commonwealth Government Printer
<PR734600>
1 Email ‘Chambers – Anderson DP’ 4.18pm
2 A1 Statement of Miranda Ward 29.9.2021
3 R2 (being Attachment D to the employer’s F3)
4 Lobethal Abattoir also assert this was a second positive reading in a 12 month period. As the extension of time issue concerns only whether a reason for dismissal was provided, and not whether a valid reason existed, the Commission makes no finding as to whether in fact a first or second positive reading had been recorded
5 R2 page 1 column 1
6 R1
7 Smith v Canning Division of General Practice[2009] AIRC 959
8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
9 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
10 [2011] FWAFB 975 “Nulty” at [14]; see also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
11 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288 at [35]-[45]
12 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
13 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
14 Nulty at [14]; Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [65]
15 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
16 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
17 PR734601
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10
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