Mrs Michelle Sposito v Maori Chief Hotel
[2020] FWC 6555
•8 DECEMBER 2020
| [2020] FWC 6555 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Michelle Sposito
v
Maori Chief Hotel
(U2020/14422)
| COMMISSIONER CIRKOVIC | MELBOURNE, 8 DECEMBER 2020 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances – extension granted.
This is an edited version of a decision delivered ex tempore and recorded in transcript on 4 December 2020.
Introduction
Ms Michelle Lee Sposito (Applicant) commenced employment with Maori Chief Hotel (Respondent), in or around March 2010. She was employed in the position of chef.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act). There is no dispute that the application was lodged on 4 November 2020.
The Respondent contends that the Applicant’s position was made genuinely redundant due to the impact of COVID-19 and, in any event, her dismissal was in accordance with the Small Business Code. The Applicant disputes this contention and says that she was unfairly dismissed.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
There is no dispute between the parties that the effective date of termination was 16 August 2020 and that the application for unfair dismissal was received by the Commission on 4 November 2020. Based on a termination date taking effect on 16 August 2020, the application should have been lodged by no later than 7 September 2020.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 58 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
• the reason for the delay;
• whether the Applicant first became aware of the dismissal after the date it took effect;
• any action taken by the Applicant to dispute the dismissal;
• prejudice to the Respondent including prejudice caused by the delay;
• the merits of the application; and
• fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
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.
In essence, the Applicant cites the following reasons for the delay:
· On 10 July 2020, the Applicant received a letter from the Respondent stating her position would be made redundant effective 16 August 2020;
· The Applicant believed “…that the hotel was closing all operations permanently”;
· The Applicant first became aware of the Respondent’s business re-opening on 28 October 2020, via a Facebook post, and made her application shortly thereafter as she then believed it was not a “true redundancy”; and
· The Applicant’s mother passed away on 14 August 2020 in a “COVID infected nursing home”.
The Respondent does not dispute that in its email of 11 July 2020 it advised the Applicant that it would “cease all hospitality activities on COB Sunday August 16th 2020” and the termination of the Applicant’s employment would take effect that date, but contends it never advised the Applicant that the closure was permanent.
In the circumstances of this case, I am satisfied that:
(1) The Applicant was led to believe her dismissal was due to a genuine redundancy;
(2) The Applicant only found out the business was re-opening on 28 October 2020 via Facebook post;
(3) The viewing of this post led the Applicant to consider that this redundancy was not genuine; and
(4) The Applicant acted promptly in filling her unfair dismissal application on 4 November 2020.
I consider this to be an acceptable and credible explanation for the entirety of the delay. That seven days passed between the Applicant becoming aware of the business re-opening and the filling of the application does not detract from the explanation for the delay. I consider that the Applicant acted promptly from the time she became aware the business was re-opening. In the circumstances, the Applicant could not have been expected to file a claim for unfair dismissal prior to a time at which she was in a position to question the genuineness of the dismissal.
I am therefore satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour of the Applicant in this case.
b) Whether Applicant first became aware of the dismissal after the date it took effect
The Applicant accepted that she was provided with a letter dated 10 July 2020 which informed her she was to be made redundant with effect from 16 August 2020. I am satisfied that the Applicant’s employment was terminated effective 16 August 2020. In this matter, this is a neutral consideration.
c) Action taken by the Applicant to dispute their dismissal
Turning next to the question of the action taken by the Applicant to dispute her dismissal, the Applicant made no submissions as to any steps taken to dispute her dismissal. However, given my findings earlier in the decision, in the circumstances of this case, I consider this to be a neutral factor.
d) Prejudice
Neither party made submissions on this issue and I cannot identify any prejudice that would accrue to the business 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.
e) Merits of the application
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 raises 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.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.
There have been a number of cases before the Commission which have considered the circumstances of a delay from an applicant not initially challenging their dismissal due to a belief in the ‘genuineness’ of the redundancy which was later changed upon the discovery of new information. However, given my findings earlier in this decision, I consider that I have applied principles in a manner consistent with other decisions of the Commission. In the circumstances, I consider this to be a neutral factor.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.
Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting an exercise of my discretion.
As I have indicated, I consider that an acceptable explanation has been provided for the cause of the delay and no other factors in section 394(3) weigh against granting an extension.
In my view, the circumstances of this case are exceptional. Accordingly, an extension of time is granted.
I propose to conduct a Case Management Conference following the delivery of this decision to discuss with the parties the future programming of this matter.
COMMISSIONER
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