Mrs Shabana Begum v Class Pty Limited
[2024] FWC 1899
•31 JULY 2024
| [2024] FWC 1899 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Shabana Begum
v
Class Pty Limited
(U2024/6475)
| DEPUTY PRESIDENT CROSS | SYDNEY, 31 JULY 2024 |
Application for an unfair dismissal remedy
This decision arises from an Application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an Application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the Act). Mrs Shabana Begum (the Applicant) was notified of her dismissal from employment with Class Pty Limited (the Respondent) by letter on 16 April 2024. The Application was lodged on 6 June 2024. The Applicant acknowledged that the Application was filed outside the 21-day limit and her justification in her Form F2 was as follows:
I was dismissed within probation period and was not in state of mind to apply earlier.
The Act mandates a 21-day time limit for initiating an Application for unfair dismissal. The date of 16 April 2024 is accepted as the date on which the Applicant’s dismissal took effect, therefore the Application is lodged 30 days outside of the statutory time limit set out in s 394(2)(a) of the Act.
Section 396 of Act requires the Commission to determine a number of jurisdictional matters before considering the merits of an unfair dismissal Application. These are:
(a) whether the Application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
This decision will determine whether the Applicant has established ‘exceptional circumstances’ pursuant to the provisions of s 394(3) of the Act, such as to allow her Application to be accepted ‘out of time’.
In determining this Application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy. On 27 June 2024 the matter was allocated to my Chambers and on the same day, my Chambers wrote to the Applicant outlining the matters I am obliged to consider under s 394 of the Act and asking her to provide a response. On 9 July 2024, the Applicant provided a response. The Respondent filed a brief outline of submissions and attached the termination letter on 15 July 2024. The Applicant filed submissions in reply on 20 July 2024.
Consideration
Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after ‘the dismissal took effect.’ On her own evidence, the Applicant was notified of her termination on 16 April 2014 by way of a termination letter.
This termination letter relevantly stated:
Dear Shabana,
Termination of employment
Your employment with Class Pty Ltd is subject to a probationary period of 6 months as outlined under Details of Offer - Probationary Period in your Employment Agreement (the Agreement) dated 16 October 2023.
In accordance with the above clause and having reviewed your work performance during the probation period, Class Pty Ltd has decided not to continue your employment and as a result, your employment will terminate today, 16 April 2024. The Company will provide you with a one month Notice Period. You are not required to work during your Notice Period, and you will be paid one month salary in lieu of notice and any leave entitlement owing.
Please ensure the safe return of all property and other items in your possession which belong to the Employer, or any related company and /or their clients, this includes any document or electronic storage device containing or recording information confidential to the Employer, its related company and/or their clients.
We would also like to offer some ongoing support to you following the cessation of your employment. You have access to our confidential Employee Assistance Program via Sonder (EAP) until 16 May 2024. EAP can be contacted via their website, or via the App store to download the confidential service.
If you have any questions about your ongoing obligations or any aspect of the finalisation of your employment, please don’t hesitate to contact me.
There is no dispute regarding when the dismissal took place. As such I find that the Applicant’s dismissal took effect on 16 April 2024. As she filed her Application on 6 June 2024, the Application was filed 30 days outside the statutory time period permitted by s 394(2) of the Act.
Relevant statutory provisions and principles
The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to Applications of this kind, is set out as follows:
‘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.’
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).
It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal Application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application ‘out of time’. I turn now to each of the criteria set out under s 394(3) of the Act.
Reasons for the delay (s 394(3)(a))
The Applicant submits that the reason for the delay in filing her Application was:
The whole process has been tough on my mental health, especially since I was emotionally disturbed by being unfairly dismissed despite giving my best effort. I also wasn't sure if I could file a complaint with Fair Work more than 21 days after being dismissed. After doing some research, I found out that I could still apply, which explains the delay in submitting my complaint.
The Applicant did not provide evidence in relation to the process being tough on her mental health. It could not possibly justify and account for a delay in filing her unfair dismissal Application one month later. There was no relevant evidence of her alleged medical issues. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:
‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’
[Emphasis added]
In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reason for filing her Application ‘out of time’, constitute ‘exceptional circumstances’, as contemplated by the statute.
When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))
For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 16 April 2024. This is a neutral factor in this case. Moreover, the Applicant conceded in her submission the following:
Yes, I only found out about my dismissal after it had already happened on April 16, 2024.
Any action taken by the person to dispute her dismissal (s 394(3)(c))
While the Applicant attached an email dated 16 April 2024 which noted her displeasure following receipt of the termination letter, I do not perceive this complaint as disputing her dismissal. I find that the first concrete action taken by the Applicant was the lodgement of this Application on 6 June 2024. This must weigh against the grant of an extension of time.
Prejudice to the employer (s 394(3)(d))
The Applicant submits the following with respect to this element:
I do not believe the employer has suffered any prejudice, given their access to HR teams for assistance and is always looking for team members as this team has a high attrition rate. However, I, as the employee, feel prejudiced due to this being my first experience with such a situation, which poses challenges, particularly in responding to technical questions.
In response, the Respondent submits the following:
In general, we would observe that there is prejudice if Applicants are not held to the timelines to submit Applications. Employers need to have certainty as to when claims can be brought. However, there is no prejudice specific to the facts of this case.
[Emphasis added]
In light of the Respondents response, this is a neutral factor in my consideration.
Merits of the Application (s 394(3)(e))
With respect to the merits of the Application, the Applicant submits the following:
1. Dismissal Timing and Opportunity to Express Concerns: The dismissal letter was provided abruptly, without allowing an opportunity for me to address my concerns.
2. Options for Discussion within the Organization: When I sought to discuss the dismissal, I was informed there were no options available within the organization, and the decision was made to dismiss me during the probation period.
3. Treatment of High-Performing Employees: It is unreasonable to dismiss a top-performing employee during probation simply for inquiring about potential career opportunities within the firm.
4. Contrasting Management Messages: Despite senior management's emphasis on employee mobility between roles, discussions with my manager regarding career progression were not encouraged.
5. Lack of Response to Employee Concerns: Issues raised by me were not addressed by my manager, nor were efforts made by HR or other departments to resolve them, instead the response was the dismissal.
6. Perception of Communication Tone: The HR and manager perceived my factual email as rude, disregarding the factual concerns raised and exhibiting biased behaviour.
7. Focus on Arbitrary Rules: The manager prioritized enforcing a 24-month rule without fair evaluation of employee performance, fostering a demotivating work environment.
The Respondent briefly submits the following:
• Jurisdictional obligations: The Applicant’s employment does not meet the minimum employment period.
• There were valid reasons for the termination of the Applicant’s employment during probation.
• Procedural fairness has been afforded the Applicant. • The Applicant has not substantiated any exceptional circumstances that would warrant the granting of an extension of time
Indeed, in the hearing of the Application the Applicant submitted that “they [the Respondent] made sure the dismissal happened before the six months.”
[Emphasis added]
It is appropriate to note that a consideration of the merits of an Application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. However, it seems clear that the Applicant was dismissed during her probationary period. The Applicant commenced employment with the Respondent on 23 October 2023 and was dismissed on 16 April 2024. This period of time does not meet the minimum employment period. I am satisfied, on a prima facie basis, that the Respondents jurisdictional objection would have been insurmountable as the Applicant was dismissed within the probationary period and before the minimum employment period. For these reasons, I am comfortable in making a prima facie assessment that the Applicant’s prospects of success are arguably nil. This weighs heavily against an extension of time being granted.
Fairness as between the person and other persons in a similar situation (s 394(3)(f))
The Applicant did not expressly respond to this criterion.
Conclusion
Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal Application. The circumstances, as disclosed by the material submitted by the Applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The Application for an unfair dismissal remedy must be dismissed. I confirm my order of 29 July 2024.
DEPUTY PRESIDENT
Appearances:
Mrs S Begum the Applicant.
Ms C Williams on behalf of the Respondent.
Hearing details:
Microsoft Teams.
29 July 2024.
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