Morgan Whitney Dombroski v FMR Investments Pty Ltd
[2023] FWC 1554
•28 JUNE 2023
| [2023] FWC 1554 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Morgan Whitney Dombroski
v
FMR Investments Pty Ltd
(U2023/4526)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 JUNE 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 24 May 2023, Ms Moran Whitney Dombroski (the Applicant) applied for an unfair dismissal remedy having been dismissed by FMR Investments Pty Ltd (the Respondent) on 18 January 2021. The Respondent objected to the unfair dismissal application on the basis it was made outside of the statutory time limit prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.
The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
The parties, both of whom were represented, informed the Commission that it was their preference to have the matter determined on the papers. I acceded to that request in light of there not being a factual dispute in respect of the points argued. In addition, with consent of the parties, I permitted an amendment to the name of the Respondent under s 586 of the Act.
The Applicant’s application was made 835 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
Between 2020 and 2021, the Applicant was said to have been investigated by the Gold Stealing Detection Unit (GSDU). At the time, the Applicant purportedly informed her supervisors of the investigation and allegations made against her. The Applicant reassured the Respondent that she was not guilty of the offences alleged by the GSDU. However, having received initial feedback from the GSDU, the Respondent instructed the Applicant to stay home, later convened a meeting on 18 January 2021, and at that meeting dismissed her.
The letter of termination indicates that the initial feedback from the GSDU was that on or around December 2018 and/or January 2019, the Applicant did not report fraudulent behaviour by employees of the Respondent and accepted a bribe as an employee of the Respondent.
After her dismissal, the Applicant said she engaged a Mr Ken Trainer, an industrial relations advisor, to file her unfair dismissal application. That application was filed on 9 February 2021. However, the Applicant was thereafter charged on indictment with unlawful possession and being a party to a money laundering offence. That charge was to proceed to trial in the District Court of Western Australia.
The Applicant stated that Mr Trainer advised her to discontinue her unfair dismissal application and to contact him when the trial was over. Based on that advice, the Applicant took no further action in relation to her unfair dismissal application.
The Applicant’s trial in the District Court commenced on 7 March 2023 and concluded on 28 March 2023. She was, apparently, acquitted.
The Applicant then proceeded to seek legal advice about making an unfair dismissal application. However, the Applicant’s representative noted that they attempted to resolve the matter with the Respondent directly, but the Respondent was not willing to negotiate and hence on 9 May 2023, the Applicant instructed her representative to commence an application through the Fair Work Commission.
It is noted that in correspondence dated 19 April 2023 between the Applicant’s representative and the Respondent, it was acknowledged that the initial unfair dismissal application had been filed one day late by Mr Trainer and acting on his advice the Applicant had discontinued that first unfair dismissal application. It is further noted that in correspondence dated 26 April 2023, the Respondent declined to engage in any negotiation in respect of the application.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. As noted, s 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] It is accepted that 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, can be considered exceptional.[3]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]
3.1 Reason for the delay
The Applicant’s last day of employment was 18 January 2021 and her unfair dismissal application was made on 24 May 2023, some 835 days late. Shortly stated, the Applicant’s reasons for the delay in making her application are that: (a) she was advised to withdraw her first unfair dismissal application by her representative in light of the application having been made one day late, and she had been arrested and criminally charged; and (b) the criminal charges against her were dismissed on 28 March 2023.
In respect of the reason for the delay, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[5] 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.[6]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[7] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[8]
With regard to the delay between the dismissal and the Applicant’s acquittal, it appears to have been argued that representative error was the causative factor, as perhaps was the negotiations to attempt to settle the matter with the Respondent.
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application.[9]
In McConnell v A & PM Fornataro,[10] a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[11]
Shortly stated, it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[12] However, as the Full Bench explained in Long v Keolis Downer, ‘an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.’[13]
In respect of a delay occasioned by an applicant awaiting the outcome of criminal proceedings, it is observed that past cases of this Commission have concluded that this may not prove to be a factor that weighs toward a finding of exceptional circumstances.[14]
In R v The Company, the Applicant faced criminal proceedings and her husband was gravely ill. She considered it was appropriate to delay the commencement of unfair dismissal proceedings until the outcome of her criminal prosecution for theft, was known. The Commission concluded that whilst it was understandable for the applicant to have focused on the criminal proceedings rather than on her application for relief relating to the termination of her employment, the criminal proceedings were resolved in her favour on 7 September 2009, and the Applicant took another 15 days to file her application in the wrong jurisdiction, and then another 20 days to file the application with Fair Work Australia. The Commission concluded that the Applicant’s course of action demonstrated a failure to act with urgency in those periods.[15] As such, the Commission concluded that there was not an acceptable reason for the delay.
In Gosselin v 611 Pty Ltd, the overriding explanation relied upon as to the reason for the delay of 280 days was the fact that criminal charges had been laid against the applicant in 2011.[16] The dismissal had occurred ahead of the hearing of the charges.[17] In addition, from the time of the commencement of the criminal proceedings, proposals were being put to avert the making of the unfair dismissal application.[18] The Commissioner expressed:
[21] Here, the applicant determined, for his own reasons which were principally attributed to the criminal charges, not to make an application for an unfair dismissal remedy within the statutory timeframe. I am not satisfied that the laying of criminal charges against the applicant would constitute exceptional circumstances for the purposes of an extension of time - more particularly given the lengthy time-lag in making this application. These types of circumstances are far from exceptional in relation to applications for unfair dismissal remedies.
[22] Further, following the dismissal of the criminal charges, the applicant had the benefit of legal advice by at least 5 April 2012, if not before, concerning unfair dismissal remedies. The applicant determined not to lodge an application, even at this late stage, because he was seeking a settlement with the respondent - even further delaying the making of the application. Despite the matters advanced in the applicant’s case, the applicant’s decision to pursue a settlement rather than to make an application could not be considered to constitute exceptional circumstances such as to justify an extension of time, even noting the prior friendship between the applicant and the principal of the respondent and the applicant’s concerns about further legal expenses as reasons for his decision not to lodge an application during the post-trial period.
As the Respondent has appropriately identified, even if the Applicant can partially explain the delay up until 28 March 2023 being occasioned by representative error, that is Mr Trainer’s purported advice to withdraw the initial unfair dismissal application, it remains that the delay between 28 March 2023 when the District Court proceedings concluded and 24 May 2023 when the application was made, is absent a plausible excuse.
The Applicant opted to attempt to settle her claim regarding her dismissal by leveraging the potential filing a general protections claim (as referred to in correspondence) or an unfair dismissal application. It is not the case that the evidence shows she was unaware of the statutory period or that her legal representatives were acting absent her instructions. Correspondence from the Applicant’s legal representative to the Respondent as early as 19 April 2023 states:
Our client is minded to make an Application under Section 365 of the Fair Work Act, which is generally known as the General Protection Provisions.
Our client would have to make an Application for an extension of time to file such Application but says the application should be successful given that the Trial has only concluded on 29 March 2023…
Could you please advise, within fourteen (14) day, if you are prepared to have an informal conference with our client?
The Applicant says she instructed her lawyers to file a second unfair dismissal application on 9 May 2023, but there is no evidence of any action taken by the Applicant after that date to ensure that her instructions were followed as a matter of urgency. It is the conduct of the Applicant that is also relevant in determining whether there is a plausible reason for the delay, and there is nothing to explain the 15-day delay at this time (from the Applicant’s instruction to file the unfair dismissal application and the making of the application). It is noted in this respect that the Applicant has not contended that representative error played a role regarding this period of the delay.
In all the circumstances, when the Applicant’s conduct is examined – based on the limited evidence before me, it is not apparent that the Applicant took steps to make enquiries regarding the filing of her application in the period of 9 May 2023 until the application was made. Further, it is not apparent from the evidence that the Applicant suffered any incapacity to address the unfair dismissal application once the criminal proceedings had concluded on 28 March 2023. There was simply no deference to the statutory time limit, with the Applicant displaying no sense of urgency to submit an already significantly late application. In my view, the reasons when considered together are insufficient to explain part of the 835-day delay. These findings weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.
3.2 Whether the person first became aware of the dismissal after it had taken effect
I am of the view that the Applicant became aware of her dismissal on 18 January 2021, with it taking effect on that same day. This was confirmed in a letter of the same date. The Applicant therefore had the full 21-day period to lodge her application for an unfair dismissal remedy. In all the circumstances, I consider this a neutral factor.
3.3 Action taken by the person to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to lodging her application. It is acknowledged that the Applicant made an initial unfair dismissal application, which was filed late, and was subsequently withdrawn, only to be followed some years later by a subsequent unfair dismissal application. It may be considered that the initial application constituted action taken to dispute the dismissal given the subsequent unfair dismissal application that was made, however, in these particular circumstances, I am not convinced that is the case. On the Applicant’s own admission, no steps were taken to dispute her dismissal until 24 May 2023, some two months after the dismissal of the criminal charges on 28 March 2023, and as such this factor does not weigh against or in favour of a conclusion that there are exceptional circumstances.
3.4 Prejudice to the employer
The Respondent asserts that one of the individuals who attended the meetings that the Applicant was called to, on its behalf, is no longer employed by the Respondent. I am of the view that in such circumstances there is a prejudice caused to the Respondent by the delay. Given the turnover of staff in such period, notably the former employee who was present in the disciplinary meeting, the Respondent would be placed in the unenviable position of attempting to adduce evidence of circumstances from two to three years ago, absent the relevant former employee. I consider that this factor weighs against a finding of exceptional circumstances.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[20]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[21] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. As such, the merits in this case are a neutral factor.
3.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[22]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making her application. The remaining matters I need to consider tell against the application for an extension of time or are otherwise neutral. In these circumstances, having considered all submissions, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] PR763657.
[2] (2011) 203 IR 1, 5 [13] (Nulty).
[3] Ibid 6 [13].
[4] (2018) 273 IR 156, 165 [38] (emphasis in original).
[5] Ibid 165 [39].
[6] Ibid.
[7] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).
[8] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[9] See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long (n 7).
[10] (2011) 202 IR 59.
[11] Ibid 65 [35].
[12] Rogers (n 9) [17]; Long (n 7).
[13] Long (n 7) 375 [60].
[14] R v The Company [2010] FWA 508; Gosselin v 611 Pty Ltd [2012] FWA 7320 (Gosselin); McGrath v Sunnyfield Disability Services [2020] FWC 5267.
[15] R v The Company (n 14) [26].
[16] Gosselin (n 14).
[17] Ibid [5].
[18] Ibid [6].
[19] (1997) 140 IR 1.
[20] Ibid 11.
[21] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[22] [2015] FWC 8885, [29].
Printed by authority of the Commonwealth Government Printer
<PR763656>
0
15
0