Mrs Joanne Calcagno v DRD Accountants Pty Ltd
[2022] FWC 1313
•14 June 2022
| [2022] FWC 1313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Joanne Calcagno
v
DRD Accountants Pty Ltd
(C2022/790)
| DEPUTY PRESIDENT CROSS | SYDNEY, 14 June 2022 |
Application to deal with contraventions involving dismissal
On 27 January 2022, Joanne Calcagno (the Applicant) lodged with the Fair Work Commission (the Commission) a Form F8 Application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that she was dismissed by DRD Accountants Pty Ltd (the Respondent) in contravention of the Act’s general protections provisions.
In her Application, the Applicant identified that she was dismissed on 30 November 2021, and as such, her Application was filed some 58 days after the date of her dismissal. In response to the Application, the Respondent filed their Form F8A, and identified that they objected to the Application on the basis of Jurisdiction, being that the Application was filed out of time.
Pursuant to s.366(1) of the Act, general protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Commission may allow.
On 22 March 2022, I issued directions to program the manner in which the Application was to proceed to Hearing (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether she would be allowed an additional period within which to lodge the Application.
The parties complied with those Directions, and the following documents were filed with the Commission:
Applicant’s Outline of Submissions, filed 8 March 2022.
Applicant’s Witness Statement, filed 8 March 2022.
Applicant’s Outline of Submissions in respect of s.596 permission to appear, filed 15 March 2022.
Respondent’s Outline of Submissions in respect of s.596 permission to appear, filed 21 March 2022.
Respondent’s Outline of Submissions, filed 22 March 2022.
The Jurisdictional hearing was held by way of videoconference on 30 March 2022, the Applicant was represented by Mr J McLean, and the Respondent by Mr C Ryall. Each party relied upon their written submissions, supplemented by their further oral submissions. There were no witnesses called and the Applicant relied upon her witness statement filed in the matter. I have considered all the written materials filed, and the oral submissions made at the Hearing, in publication of this Decision.
Background
It is uncontested between the parties that the Applicant had worked for the Respondent for approximately 16 years in the role of Office Administrator, and later Head of Front Office, before her employment was terminated on 30 November 2021.
In September 2021, approximately 2 months prior to her termination, the Applicant was issued with a warning in respect of her behaviour at work. The Applicant later made workplace complaints on three occasions, being for matters related to the procedure of her warning, and other matters related to bullying and harassment.
The Applicant was issued with a termination letter on 30 November 2021, and this letter did not provide a reason for dismissing the Applicant. The text of this letter is reproduced below:
“Dear Joanne
TERMINATION OF YOUR EMPLOYMENT
We advise that we are terminating your employment with us effective immediately.
Based on your length of service, your notice period is 5 weeks. In lieu of receiving hat notice, you will be paid the sum of $18,641.30 as per the attached pay advice.
The above amount includes your accrued entitlements and any outstanding pay, up to an including your last day of employment. This includes the balance of any holiday pay, long service leave, and superannuation.”
The Applicant took the following steps following her termination:
The Applicant contacted her employer and requested a copy of her employment file and requested reasons for her termination;
The Applicant accessed the Commission’s website to research avenues of recourse for her dismissal;
The Applicant spoke to a law firm, who, in short, advised the Applicant to file an application pursuant to s.394 of the Act (the Unfair Dismissal Application);
The Applicant filed a Form F2 Application with the Commission.
The content of the advice referred to above at point 3 is evidenced in the below except from an email from that law firm to the Applicant dated 10 December 2021:
“Dear Joanne,
I refer to your attendance at our office on 3 December 2021 for the purposes of me advising you as to your options to initiate claims against your former employer, DRD Accountants Pty Ltd because of the manner in which they terminated your employment. I also refer to my telephone discission with you on 6 December 2021.
I have advised you that, in my opinion, the best option open to you is to explore an unfair dismissal claim to be lodged with the Fair Work Commission.
…
As clearly advised to you in our meeting on 3 December 2021, and again during our telephone discussion on 6 December 2021, any application for unfair dismissal and/or general protections claim to be made to the Fair Work Commission, must be made within 21 days of the date your termination took effect.
This is a strict deadline and, if you do not file an application within that time frame, you may well be excluded from proceeding with a claim.
You instructed us that your employment was terminated during a meeting on 30 November 2021. Accordingly, any application must be lodged by close of business on 21 December 2021.
…”
The Applicant commenced the Unfair Dismissal Application and those proceedings were first listed on 27 January 2022, before Commissioner Spencer. In anticipation of this listing, on 24 January 2022 the Applicant sought legal advice from a second law firm, being the law firm currently representing the Applicant, who advised that a general protections application would be more appropriate for her circumstances. Following the conference held before Commissioner Spencer, the Applicant discontinued the Unfair Dismissal Application, and lodged the Application the same afternoon.
Relevant Statutory Provisions
Section 366(1) of the Act provides that an application under s.365 must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the FWC allows under subsection (2).
Section 366(2) allows the Commission to grant an extension of time where it is satisfied that there are exceptional circumstances, taking into account
(a)the reason for the delay; and
(b)any action taking by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a like position.
Applicant Submissions
Reason for delay
The Applicant submits that the delay in the period between her dismissal on 30 November 2021 and receipt of advice from the second law firm on 24 January 2022 can be explained by reference to her initial Unfair Dismissal Application. The Unfair Dismissal Application was filed in time. The Applicant submits that she did not become aware of the unsuitability of the Unfair Dismissal Application to her circumstances until 24 January 2022, when she received further advice from a second law firm, and after the Unfair Dismissal Application was lodged.
It is the Applicant’s submission that there appeared to be an error on the part of the initial legal representative in advising the Applicant to file the Unfair Dismissal Application, in circumstances where a General Protections application was preferable.
In support of the Applicant’s extension of time request, the Applicant made the following six submissions to explain the delay in filing her Application from the point of receiving legal advice on 24 January 2022, to her filing on 27 January 2022:
1. The Applicant had in fact filed an application with the Commission within time, being the Unfair Dismissal Application;
2. The legal advice received by the Applicant on 24 January 2022 was the point in which the Applicant became live to the existence of the general protections jurisdiction;
3. The Applicant then promptly collated her materials and other documents, and provided her representatives with instructions for the preparation of the Application;
4. 26 January 2022 was a public holiday;
5. On 27 January 2022, the Applicant and her representatives were listed before Commissioner Spencer, where they sought to achieve a successful resolution of the matter notwithstanding the apparently incorrect jurisdiction; and
6. The Applicant’s representatives promptly discontinued the Unfair Dismissal Application and filed the Application on the same day of the conference on 27 January 2022.
The Applicant submits that the Decision in Souroop,[1] is analogous to this matter, and ought to be followed. Specifically, the Applicant refers to the following observations of Commissioner Platt:[2]
“… I accept that Mr Souroop (particularly not having the benefit of any legal advice at that stage) would not have been aware of the differences in a general protections application versus an unfair dismissal application.…
Mr Souroop disputed the nature of his dismissal within time, and upon coming to the realisation that the general protections approach would be more preferable, he promptly withdrew the unfair dismissal application and sought to lodge the general protections application on the same day.”
The Decision in Souroop was unsuccessfully appealed, with the Full Bench of the Fair Work Commission concluding “we find no case of arguable error in the reasoning or conclusion of the Commissioner in this regard.”[3]
The Applicant also submits that the Decision in Pellicaan,[4] is analogous to this matter, and similarly involves a situation where the applicant had lodged an unfair dismissal application, which was later discontinued, and a general protections application filed promptly, but out of time. In that matter, Deputy President Lake observed:
“The Applicant submitted that the reason for the delay in lodging the Application was that he filed the inappropriate application at first instance, which was done within the statutory time frame. Once he became aware of a more appropriate application, he sought legal advice as to how to lodge this application. Shortly after the [sic] obtaining this legal advice the Applicant filed the Application.
The Applicant has an explanation for reasons for the delay during the entire period of the delay. With respect to allowing an extension of time this criterion weighs in the Applicant’s favour.”[5]
Actions taken to dispute the dismissal
The Applicant submits the following steps taken by the Applicant to dispute the dismissal ought to weigh in favour of granting an extension of time:
The Applicant communicated with the Respondent to seek reasons for her termination, noting that the termination letter issued by the Respondent did not list any reasons for her dismissal;
The Applicant filed the Unfair Dismissal Application as a clear dispute of her termination; and
The Unfair Dismissal Application squarely put in issue the matters which form the basis of her general protections Application, namely the reporting of matters relating to her warning, and bullying and harassment in September 2021.
It is the Applicant’s submission that the Respondent was on notice of the Applicant’s wish to dispute her termination, and that further still, the substantive basis of that dispute had been put to the Respondent by way of the Unfair Dismissal Application.
Prejudice to the employer
The Applicant submits that the Respondent would not be prejudiced as a result of the Applicant’s delay in filing her Application due to the Respondent being on notice of her intentions to challenge her dismissal. The Applicant refers to the Decision of Commissioner J Ryan in Hartig,[6] where the Commissioner observed “for the purpose of s.366(2)(c) prejudice cannot be considered to flow against the employer merely because the grounds on an application under s.365 are different from the grounds relied upon in an application under s.394. Something more is required.”
Whilst the Applicant relies on the above authority, it is her submission that the grounds on which the present Application is made mirrors, for the most part, the grounds advanced initially in the Unfair Dismissal Application.
The Applicant further submits that the Respondent did not file a response to the initial Unfair Dismissal Application, and as such, where divergence between the in-time Unfair Dismissal Application and the out of time Application exists, the Respondent could not have been put to unnecessary cost for any difference between the two.
Merits of the application
The Applicant submits that she makes her Application on the basis of various allegations as raised in complaints in September 2021 and alleges contravention of Part 3-1 of the Act in respect of those allegations. It is her submission, consequently, that those provisions attract the operation of a reverse onus as outlined in s.361 of the Act.
The Applicant again relies upon Hartig[7], and in particular, the observations of Commissioner J Ryan, that:
“Given the Operation of s.361 of the Act I must start from the presumption that the dismissal was for the reason alleged by the Applicant unless the Respondent proves otherwise. Fair Work Australia is not the place for the Respondent to ‘prove otherwise.’
On the face of the material before me the Applicant’s case has merit just as the Respondent’s case has merit. Fair Work Australia cannot test the merits of either the Applicant’s or the Respondent’s case. Therefore, I consider that the merits of the case favour the Applicant at this point of time given the operation of s.361 of the Act.”
The Applicant submits nonetheless that the matter is one of considerable merit.
Fairness between the Applicant and persons in a like position
The Applicant submits that this consideration does not apply to the present circumstances and as such, is a neutral consideration in the matter.
Respondent Submissions
Reason for the delay
The Respondent submits that the following reasons support their position that the delay was unreasonable and an extension of time should not be granted:
1. The Applicant was legally represented at the time that she filed her Unfair Dismissal Application, and consequently the time that this Application should have been filed;
2. The Applicant had previously obtained legal advice about the various application options available to her, including the unfair dismissal and general protections claims, as well as the timeframes for the filing of those applications; and
3. The Applicant had already prepared a comprehensive and clear summary of her allegations.
The Respondent refers to the Applicant’s legal advice, as partially reproduced in this Decision at [11], and submits that the possibility of a general protections claim, in addition to a clear explanation of the time frame, was discussed with the Applicant prior to the expiration of the 21-day time frame. Specifically, the Respondent submits that the phrases “your options to initiate claims,” “the best option,” “you would give consideration as to what course of action you wish to take,” and “as clearly advised to you in our meeting on 3 December 2021, and again during our telephone discussion on 6 December 2021, any application for unfair dismissal and/or general protections claim to be made to the Fair Work Commission, must be made within 21 days of the date your termination took effect,” supports the Respondent’s submission that it is not correct for the Applicant to suggest that she was not aware of her ability to file a general protections application prior to 21 December 2021.
The Respondent refers to the advice as reproduced in [11] and submits that the Applicant was told on three occasions that a general protections claim was available to her, being:
At a meeting on 3 December 2021;
During a telephone discussion on 6 December 2021; and
In writing on 10 December 2021.
The Respondent further seeks to distinguish this matter from the Decisions in Lane,[8] Souroop and Pellicaan on the basis that the Applicant was not an “unaware applicant” as in the Decision of Lane, and that the Applicant was legally represented at the time of application, unlike the applicants in the matters of Souroop and Pellicaan.
The Respondent submits that the “representational error” reason for delay proffered by the Applicant is better characterised by a divergence of opinion between the Applicant’s initial and current lawyers, and is therefore an inappropriate basis for the Commission to consider granting an extension of time.
Actions taken to dispute the dismissal
The Respondent concedes that the Applicant took some steps to dispute the dismissal, but submits that this does not weigh greatly in favour of granting an extension of time.
Prejudice to the employer
The Respondent submits that there is no exceptional prejudice suffered by the Respondent in this matter, but that in general, that time limits exist to limit indefinite threats by individuals that are dismissed.
Merits of the Application
The Respondent did not articulate in detail the full extent of its substantive position on the merits of the matter, as those matters are to be dealt with in the course of a hearing on the merits of the Application, however the Respondent noted:
The Applicant was given three formal or informal warnings in respect of her behaviour in her employment with the Respondent.
The Applicant “confirmed” in writing that her attitude had changed, and had declined.
The Respondent denies the behaviours raised by the Applicant in September 2021.
The Respondent terminated the Applicant’s employment lawfully due to her performance and capacity to perform her role.
Fairness as between the Applicant and persons in a like position
The Respondent’s submissions in respect of this limb primarily advance the argument that a person in the Applicant’s position ought to have been able to file their application on time.
Consideration
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[9]
It is common between the parties that the Applicant was dismissed on 30 November 2021. The final day of the 21-day period was therefore 21 December 2021, and ended at midnight on that day. The Application was made on 27 January 2022. The Application was therefore made 37 days late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under s.366(2) of the Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[10]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 December 2021. The delay is the period commencing immediately after that time until 27 January 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[11]
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.[12]
An Applicant 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 Applicant has not provided any reason for any part of the delay.[13]
In her submissions, and in the oral submissions advanced at the Hearing, the Applicant acknowledged that the Application was late, and outlined various reasons for the delay, as outlined in paragraphs [15] – [20] of this Decision.
In the Respondent’s submissions, and as supplemented with oral submissions at the Hearing, various matters were raised in response to those reasons, which I have broadly outlined above in paragraphs [30] – [34].
In respect of the delay occasioning in the period between 21 December 2021 and 24 January 2022, I accept the submissions of the Applicant that the delay is explained by the Applicant’s reliance upon legal advice to file an unfair dismissal application. It was apparent that the Applicant, despite a diligent attempt to prosecute her claim in the correct jurisdiction as evidenced by her personal research and the decision to engage a law firm to provide advice, had filed an inappropriate application.
I reject any submission advanced by the Respondent that suggests that the Applicant ought to have verified or double checked the advice of her lawyer, and therefore independently identified that she was making an inappropriate application. The Applicant had obtained advice that an unfair dismissal application was the most appropriate course of action, and needed to be filed by 21 December 2021. The Applicant, although not instructing the initial law firm to do so on her behalf, followed this advice and duly filed her Unfair Dismissal Application within time.
I accept the observations of the Respondent that the Applicant may have been sent correspondence which included reference to a general protections claim. However, I do not have evidence before me that such a claim was explained to her, and on the contrary, the unambiguous evidence is that the Applicant was advised to file an unfair dismissal application.
I must now consider the delay in filing an application between the point in time that the Applicant became aware of her ability to file a general protections application, on 24 January 2022, and the actual time of filing her Application on 27 January 2022.
While it is clear that weekend days and public holidays are days counted in the calculation of the 21 day limitation period, I do not consider it was unreasonable for the Applicant to wait until the proceedings before Commissioner Spencer had concluded before filing the Application. The Applicant was clearly having to digest a significant change in advice, and may have considered that there may be some resolution to her claims before Commissioner Spencer.
Conclusions on Reasons for Delay
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the whole period of the delay, and that is a matter that weighs in favour of the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. The Applicant took several steps to dispute her dismissal prior to making the Application, and in fact substantiated the basis of her claim in very similar terms within the Unfair Dismissal Application. Whilst I accept that the Applicant had also sought to understand the reasons for her termination, those requests appear to have been made prior to the filing of her initial application, and do not necessarily forewarn the Respondent of an impending general protections application in the period between 21 December 2021 and the filing of her Application on 27 January 2022.
The Respondent’s submission concedes that the Applicant did take some steps to dispute the dismissal, nonetheless they seek to have this factor weighed as a neutral consideration.
In all the circumstances, I find that the Applicant undertook several actions to dispute the dismissal, and that the Respondent was, in great detail, on notice of the Applicant’s desire to pursue an application at the Commission, and the particulars of that claim. The Respondent was, on the date of the Applicant filing her Application, engaged in a conference with the Applicant to consider the Applicant’s Unfair Dismissal Application, and whilst I accept that there are some distinctions between the two applications, I consider that the Respondent was on notice of the Applicant’s intention to dispute her dismissal. I consider this factor weighs in the Applicant’s favour.
What is the prejudice to the employer (including prejudice caused by the delay)?
I accept the Respondent’s submission that there is no exceptional prejudice to the Respondent arising as a result of this Application. Although there will, to some extent, always be inconvenience or work involved in responding to a general protections application, I am satisfied that no particular prejudice arises in this matter.
I consider this to be a neutral consideration.
What are the merits of the Application?
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[14]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, and the Respondent has an apparent defence. I find that the merits of this matter are a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
The Respondent made submissions in respect of this consideration, being that a person in the Applicant’s position ought to have been capable of filing their application on time. Whilst it may certainly be the case that a person in the Applicant’s position could have been able to file the correct application, there is no matter of fairness which arises between any person or class of person who would be subject to unfairness should the Applicant be granted an extension of time.
Other than the above submission, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter not otherwise raised. 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?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[15] 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.[16]
It is clear that the factors that have been accorded significant weight in this matter, being an acceptable reason for the delay and the detailed actions taken by the Applicant to dispute her dismissal, weigh heavily in the Applicant’s favour.
Conclusion
Having regard to all of the matters listed at s.366(2) of the Act, I am satisfied that there are exceptional circumstances.
Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[17] I am satisfied that it is appropriate to extend the period for the Application to be made to 27 January 2022.
DEPUTY PRESIDENT
Appearances:
Mr J McLean, for the Applicant
Mr C Ryall, for the Respondent
Hearing details:
2022.
Sydney (via videoconference):
March 30.
[1] Souroop v State of Victoria (Department of Justice and Regulation)[2018] FWC 1759.
[2] Ibid [22] to [23].
[3] Souroop v State of Victoria (Department of Justice and Regulation)[2018] FWCFB 2855, [18].
[4] Pellicaan v Cooper Civil [2019] FWC 2553.
[5] Ibid [22] to [23].
[6] Hartig v Form 2000 Sheetmetal Pty Ltd[2010] FWC 7836.
[7] Ibid.
[8] Lane v Kangaroo Dive & Adventures Pty Ltd [2010] FWA 3939.
[9] 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.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[11] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[17] Fair Work Act 2009 (Cth) s 577.
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