Mrs Sharna Pogan v Amcol Australia Pty Ltd
[2020] FWC 3210
•24 JULY 2020
| [2020] FWC 3210 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sharna Pogan
v
Amcol Australia Pty Ltd
(U2020/4983)
| Commissioner Hunt | BRISBANE, 24 JULY 2020 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – unfair dismissal application dismissed.
On 16 April 2020 Mrs Sharna Pogan filed an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) alleging that her employer, Amcol Australia Pty Ltd (Amcol), unfairly dismissed her.
In her application, Mrs Pogan said that she was dismissed on 18 February 2020. Pursuant to s.394 of the Act, an application for unfair dismissal must be made within 21 days after the dismissal took effect. Accordingly, Mrs Pogan’s application was made some 37 days after the statutory time limit. Mrs Pogan gave reasons in her application as to why the application was lodged late.
In objecting to the out of time application, Amcol requested that the jurisdictional objection be dealt with prior to conciliation taking place. As such, no conciliation took place and the matter was allocated to me for consideration.
On 21 May 2020 Mrs Pogan was directed to provide further material to the Fair Work Commission (the Commission) which she did in the form of an email sent to the Commission on 28 May 2020. I issued directions for the filing of further material by the parties on 3 June 2020. The matter was listed for a jurisdictional hearing on 18 June 2020, with final submissions filed by both parties following the hearing.
At the hearing Mrs Pogan represented herself. Ms Carly Corbett-Burns, Senior Associate of Squire Patton Boggs was granted leave pursuant to s.596(2)(a) of the Act to represent Amcol. Mr Dougal Scott, Managing Director of Amcol also appeared for Amcol.
After the hearing I made an order to produce documents, directing the Western Downs Regional Council to provide telephone records of a mobile telephone used by Mrs Pogan. These were provided to the Commission on 30 June 2020.
Background
Mrs Pogan was employed by Amcol from 10 April 2019 to 18 February 2020, a period of approximately 10 months. She was employed as a casual employee.
In its Form F3, Amcol stated that it employs 19 employees in Australia, but with its related bodies corporate, it has some 3,628 employees.
Legislation
Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
As the application has been made outside the 21-day time limit prescribed by s.394(2)(a) of the Act, Mrs Pogan’s unfair dismissal application can only be validly made if this time limit is extended in accordance with s.394(3) of the Act.[1]
Mrs Pogan’s evidence and submissions
Mrs Pogan submitted that she filed her application outside of the 21-day time limit due to miscommunication and advice she received that she was ineligible to
apply for unfair dismissal due to Amcol employing so few employees and the length of her employment.
Mrs Pogan stated that on 26 February 2020 she rang the Commission’s “advisory line” to seek advice in relation to her options, at which time she was asked how many people were employed at her place of work. Mrs Pogan said she believed this to mean her physical place of employment, which meant a collective of nine people, including herself. Mrs Pogan stated that including the Brisbane offices, which she said had 4-6 employees, she understood there to be less than 15 employees at her workplace. Mrs Pogan said she was questioned in relation to her employment status as she was a casual and how long she had been employed, and said she was told that as she had been employed for a period of less than 12 months, her application was void.
Mrs Pogan said she suffered anxiety and depression following her dismissal which exacerbated her confusion and understanding of her obligations. She stated that this severely impacted upon her ability to function and caused her to self-isolate and to withdraw socially and emotionally. No medical evidence has been provided to support this submission.
In her Form F2, Mrs Pogan stated that her husband was admitted to hospital on 14 March 2020 with a severe respiratory illness. This occurred at the commencement of the COVID-19 virus and her time was taken up with caring for her husband.
Mrs Pogan said that at this time she reviewed the Commission’s website, at which time she considered that the advice she had received was reconfirmed. Mrs Pogan said she reasonably believed that on this basis she was not eligible to bring a claim of unfair dismissal.
Mrs Pogan said the informal nature of her dismissal by her supervisor gave her the impression that the formal dismissal date would be provided with receipt of her separation certificate, which was not received until she formally requested a certificate which was received on 15 April 2020. Mrs Pogan said she therefore believed her dismissal formally took place on 15 April 2020 and not 18 February 2020. I understood Mrs Pogan did not press this contention at hearing.
Mrs Pogan did not initially dispute the dismissal through her employer as she did not seek to be re-employed by Amcol due to what she alleged were negligent, unethical and poor business practices. While Mrs Pogan stated as early as 29 May 2020 to the Commission that she had sent a letter to her former employer addressing certain issues with it, it was not until the hearing on 18 June 2020 that the Commission learned that the letter sent by Mrs Pogan was nine pages long and very detailed. It was sent by her to Amcol on 3 April 2020.
Disappointingly, while Amcol in its written submissions of 10 June 2020 briefly mentioned a letter sent by Mrs Pogan on 3 April 2020, the letter was not produced by any party until following the hearing. It is incumbent on any legal representative appearing before the Commission to provide to the Commission relevant information whether it is helpful to its case or not. I consider the letter sent by Mrs Pogan on 3 April 2020 to be highly relevant to the consideration in s.394(3)(c) of the Act, and if it had not been provided by Mrs Pogan to the Commission due to being a self-represented applicant, it should have been provided by Amcol to the Commission as it was legally represented.
Following the hearing I had the opportunity to consider the letter sent by Mrs Pogan. The letter is reproduced in part (the writer’s emphasis included):
“To whom it may concern;
I appreciate that this letter may cause some angst within Mineral Technologies (MTI), however I feel that the things that I am bringing to your attention as an ex-employee are important to you and to your company moving forward into the future.
I would like to start by saying that I am thankful for the opportunities given to me through my employment with MTI Gurulmundi and I truly wish you and your business all the very best moving forward with the takeover of Sibelco.
What I would like noted is that I was highly disappointed to be summarily terminated without notice on the morning of Tuesday the 18th of February. To be dismissed without any justification or explanation is poor management, and the manner with which I was terminated by Neville was highly disappointing.I would like to ask directly for the reason to be provided for my termination in writing – as I feel that “the Americans have decided you need to go” is not sufficient and insults not only my intelligence, but your management practices of this business. It is my belief that such a request is not unreasonable. I believe that the provision of a written separation certificate and formal notification is required legally for any worker dismissed from a permanent position.
It is my belief that I have been unfairly dismissed from my current position for the following reasons:1.I believe there was not a valid reason for dismissal
2.I was not notified of the reason before I was dismissed
3.I was not given an opportunity to respond to the reason my dismissal before I was dismissed
4.I had not previously been warned about unsatisfactory performance, or
5.That in all the circumstances, my dismissal was harsh, unjust or unreasonable, and
6.That I had been employed for a period of more than 6 months in a large business
I realise that this letter may seem to be too little too late – and may be viewed as a case of sour grapes, but I have some concerns and observations about the operation and administration of MTI in Australia and specifically the Gurulmundi site that needs to be followed up upon and that you need to be made aware of.
For ease of response and to reduce complication, I will raise my points of consideration and interest in dot format.
I do not expect that this letter alters my position – however I will give yourself or anyone (excluding Neville or Dougal) the opportunity to discuss these issues in person if so desired. Before I commence to raise my points -I would like to advise that it is my belief that Dougal and Neville are aware of most if not all these issues and are actively covering or minimizing these issues in the interest of self-preservation within the MTI business…”
The letter went on to address numerous allegations of workplace health and safety breaches, workplace bullying and harassment, and various other complaints unrelated to her unfair dismissal application.
Mrs Pogan stated that on 14 April 2020 she received a call regarding her letter from Ms Carly Corbett-Burns of Squire Patton Boggs, representing Amcol. They spoke for a reasonable period of time and Ms Corbett-Burns asked what Mrs Pogan wanted to happen. Mrs Pogan said that she asked for a written explanation of her dismissal and that she wanted Amcol to be made aware of the unsafe work practices at the mine site in the hope that Amcol would take a look at addressing the issues raised by her. On 15 April 2020 she received her employment separation certificate from Mr Ben Graham, Amcol Finance Officer, indicating she had been dismissed for ‘unsatisfactory work performance’. The separation certificate did not provide any further detail.
Mrs Pogan submitted that the phone call with Ms Corbett-Burns was the third occasion she had requested a reason for her dismissal. She said she sought informal legal advice and made a further call to the Commission on 15 April 2020, where she received advice that she was eligible to make a claim for unfair dismissal, recommending that she lodge an ‘exceptional circumstance application’.
Whilst giving evidence during the hearing, Mrs Pogan stated that she had made contemporaneous diary notes when she called the Commission’s advice line on 26 February 2020 and 15 April 2020. Following the hearing Mrs Pogan provided photos of these notes. Mrs Pogan recorded the number she had dialled as 1300 799 675 on each occasion. The file notes read as follows:
“February 26 Wednesday = 10:30am (
ManLady)Fair Work Commission – 1300 799 675
Asked me: How many employees on site – I said 9. I also stated that there were further employees in Brisbane office – 4 to 6.
MTI or Amcol Australia is part of a global company.
The man stated:
·you have 21 days
·not eligible with no. of employees
·can’t do much more – sorry
·can take a look at Fair Work website if you like”
“April 15 Wednesday – 1300 799 675 (
LadyMan)-Separation date was date actually sacked.
-Could of made a claim: now out of date.
-Can ask for an extension/special claim when lodged online.”
Following the hearing Mrs Pogan provided call logs from her private mobile number for the months from late January – April 2020. Her telephone records demonstrate extensive use by her of the mobile phone to make calls throughout these months. Mrs Pogan redacted the last numbers of each of the telephone numbers dialled by her, however it is apparent that national 1300 numbers are evidenced on the call log; 30 January 2020 is one example.
No call was made by Mrs Pogan on her private mobile number to the Commission’s 1300 number on 26 February 2020. It is evident that Mrs Pogan made a call to a 1300 number on 15 April 2020, however she has redacted the remainder of the number, and it is assumed that the 37 second call is not the call Mrs Pogan claims to have had with a Commission staff member at [23].
During the hearing Mrs Pogan stated that it is likely she made the calls to the Commission using the State Emergency Service (SES) telephone provided to her on account of her being the Local Controller of the SES.
Following the hearing I ordered the Western Downs Regional Council to produce to the Commission telephone logs for the relevant period of time. I understand that it was the Council who provided the telephone for the use of the SES, and for Mrs Pogan as the Local Controller.
The documents produced do not evidence any calls made to the Commission on 26 February 2020, 15 April 2020 or at any other time.
In an email dated 26 June 2020 from Mr Steven Taylor, Service Desk Analyst for the Western Downs Regional Council to Mrs Pogan, he suggested that the records he was able to obtain in an excel spreadsheet might not show “freecall” numbers such as the Commission’s 1300 number.
Amcol’s submissions
Amcol submitted that at the time the 21-day deadline had passed, that being 10 March 2020, Mrs Pogan had made only one call to the Commission. Amcol submitted that this was illustrative of Mrs Pogan’s awareness of the 21-day time limit, but she was ignorant of the other requirements related to her minimum employment period.
Amcol submitted that Mrs Pogan’s reliance on her belief that Amcol is a small business employer, employing less than 15 employees is unreasonable, as it is well known that Amcol is part of a global group employing in excess of 3,500 employees. Amcol submitted there is no reasonable basis for a belief that Mrs Pogan was employed by a small business employer and therefore no reasonable basis to believe that she required 12 months rather than 6 months minimum employment under ss.382 and 383 of the Act.
Amcol submitted that there is no evidence of false information or guidance on the Commission’s website, nor should it be accepted that Commission staff provided misinformation relevant to the number of employees being within a person’s physical workplace. It was submitted that information in relation to the size of a small business employer, the minimum employment periods applicable, and entitlements of regular and systematic causal employees are easily available online through Google searches.
Amcol submitted that Mrs Pogan requests the Commission to accept her ignorance of the legislative requirements, and submitted that not knowing, and making minimal efforts to locate the information required by her is not an exceptional circumstance excusing such a significant delay.
Amcol submitted that the reasons related to Mrs Pogan’s health, anxiety, and depression, as well as her husband’s illness, were not exceptional circumstances, and further occurred outside the 21-day timeframe and therefore could not justify the delay. Amcol argued that caring for her husband did not prevent Mrs Pogan taking action, as she made further enquiries via the Commission’s website in the days following her husband’s hospitalisation.
Amcol argued that the reference to receipt of the separation certificate as constituting the date dismissal took effect contradicts Mrs Pogan’s claims to have commenced making enquiries on 26 February 2020. Amcol noted that Mrs Pogan was employed on a casual basis and therefore the requirement for written notice of termination did not apply, and Mrs Pogan’s ignorance of legislative requirements does not excuse the significant delay in this matter.
Enquiries to the Commission
Amcol submitted in relation to the enquiries made by Mrs Pogan, training provided to Commission staff members and the frequency with which queries in relation to unfair dismissal rights, casual employees, and small businesses must occur, it is reasonable to assume any such staff member would have raised the appropriate questions with Mrs Pogan and advised accordingly.
Amcol disputed the reliability of the two handwritten file notes on the basis that they were created by Mrs Pogan and are not evidence that the conversations took place. Amcol submitted that Ms Pogan is an interested party and there is no corroborating evidence of these telephone calls. Amcol argued that the phone logs provided do not evidence the relevant calls having been made, and there is no adequate explanation of the absence of the Commission’s number from the various call logs.
Amcol submitted that Mrs Pogan had not sought to produce the file notes until after the hearing, despite the issues raised in Amcol’s Form F3 and the invitation by the Commission to provide relevant material for the Commission’s consideration.
Amcol further submitted that there are inconsistencies between the file notes and Mrs Pogan’s Form F2, and her further written submissions of 28 May 2020. Amcol said that Mrs Pogan’s submissions state, “I was asked how many people were employed at my place of work – to which I believed they were meaning my physical place of employment, meaning a collective of 9 persons including myself. Including the Brisbane offices – I understood there to be less than 15 employees to my workplace.” Amcol submitted that this statement conflicts with the file note of 28 February 2020 where Mrs Pogan allegedly expressly stated that her employer was part of a global company.
Amcol submitted that Mrs Pogan’s statement in her Form F2 that she had checked the Commission’s online eligibility quiz and found she was not eligible as she was employed by a small business employer conflicts with the file note which make it clear that she was aware her employer was part of a global group on 26 February 2020. Amcol submitted that the file notes also conflict with the letter to Amcol dated 3 April 2020, in which Mrs Pogan clearly stated that she had been employed “for a period of more than 6 months in a large business”. Amcol submitted that this conflicts with Mrs Pogan’s claim that she only became aware of her rights during the call with the Commission on 15 April 2020, or even very shortly before that after speaking with a legal advisor.
Amcol argued that it is unreasonable to believe that a trained Commission consultant would provide incorrect advice on common issues such as the definition of a small business employer and minimum periods of service, especially if Mrs Pogan was as explicit as the file notes indicate in relation to her employment by a global group.
3 April 2020 letter
In relation to the letter sent by Mrs Pogan on 3 April 2020, Amcol submitted that the bulk of the letter did not relate to the question of whether Mrs Pogan should be granted an extension of time for filing of her application. Amcol said that it had determined that generally the allegations made in the letter are untrue.
It was submitted that the letter was sent by Mrs Pogan to Amcol 45 days after termination of her employment; and 24 days after the expiry of the 21-day time limit in which to make a claim of unfair dismissal. Amcol submitted the letter was sent by Mrs Pogan in an effort to try and illicit a financial offer from Amcol, and when this did not occur, it is possible that only then did Mrs Pogan seek out the relevant information in relation to any legal remedy available to her.
Amcol submitted in the alternative that Mrs Pogan was aware of her rights before 3 April 2020, perhaps after the expiration of the 21-day timeframe, and instead chose to send the letter in an effort to try and illicit a financial offer, rather than pursue her rights with the Commission.
Amcol submitted that in either scenario, Mrs Pogan did not act in a timely manner as required by the Act, citing generally the principles in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
Reasons for dismissal
In its Form F3, Amcol stated that Mrs Pogan was employed on a casual basis under an employee agreement which provided no guarantee of ongoing or regular work, and said that as a casual employee, employment may be terminated at any time by providing notice to apply at the end of the current engagement.
Mrs Pogan was employed as a casual employee under the Mining Industry Award 2010 (the Award) and was paid a 25% casual loading. Amcol submitted that due to the nature of its work it requires casuals who are able to make themselves available for working hours with relative consistency. In order to reduce the administrative burden on its business, Amcol said it operates a system to limit the number of casual employees on its roster system at any given time. Amcol said it made the decision not to roster Mrs Pogan beyond 18 February 2020 to allow it to roster an alternative casual employee with greater availability, because Mrs Pogan was not available for a sufficient amount of time and had shown herself to be unreliable by providing little-to-no notice to Amcol when she was unavailable for agreed shifts. Amcol said that the separation certificate indicated unsatisfactory performance because this was the most appropriate choice on the form, and said that there had been numerous instances of Mrs Pogan being unavailable at short notice, and by 18 February 2020 it was decided that the most appropriate next step was to end Mrs Pogan’s casual engagement.
Applicable Case Law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.” [Endnotes not reproduced]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[3] a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[4] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[5]
“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.” (original emphasis)
Consideration
Section 394(3)(a) - The reason for the delay
Mrs Pogan has proffered numerous reasons for the delay including:
(a) Being advised by a Commission staff member on 26 February 2020 that the number of employees for the purposes of the small business/minimum employment consideration is those at the site/workplace;
(b) Her husband’s hospitalisation on 14 March 2020;
(c) Her review of the Commission’s webpage;
(d) Her medical condition following the dismissal; and
(e) Learning on or around 15 April 2020 she had met the minimum employment period.
On the evidence before me, I am not satisfied that the file notes made by Mrs Pogan are contemporaneous notes. This is so because the notes on 26 February 2020 originally had “(Man)” at the top of the diary note, and this was then crossed out to read “Lady”. Yet the notes later reflect “Man” as having been a man who gave advice to Mrs Pogan.
On the balance of probabilities, I find it highly improbable a Commission staff member provided advice that only employees at the workplace counted towards the number of employees for the purposes of the minimum employment period.
Further, there is no evidence within the telephone logs of a call having been made using either Mrs Pogan’s private mobile phone, or the one available through the SES on 26 February 2020 to the Commission.
There is insufficient evidence before me to be satisfied that a call Mrs Pogan claims she made was, in fact made.
I note that Mrs Pogan’s husband’s hospitalisation occurred after the 21-day time limit, and it does not provide a suitable explanation as to why Mrs Pogan could not bring the application within the prescribed time limit.
The letter sent by Mrs Pogan on 3 April 2020 at [19] demonstrates that as at 3 April 2020, Mrs Pogan most likely knew that she could bring a claim for unfair dismissal. This is so because she included in the letter that she considered she had been unfairly dismissed because:
“That I had been employed for a period of more than 6 months in a large business.”
It makes no sense that Mrs Pogan first learned of this on or around 15 April 2020 in the purported telephone call to the Commission if she stated so to Amcol on 3 April 2020.
The Commission’s website allows a prospective applicant to conduct an eligibility quiz to provide an indication if they are eligible to bring a claim of unfair dismissal. Relevant to the number of employees, the question posed is:
“How many employees were there at the time of your dismissal? There were:
·15 or more employees
·Fewer than 15 employees
·Not sure – which employees do I count?”
If a person were to select, “Not sure – which employees do I count”, a box below states the following:
“Count all full-time and part-time employees at the time the dismissal took effect.
Include yourself (the employee who has been dismissed) and any other employee dismissed at the same time.
Only count casual employees if they are employed on a regular and systematic basis.”
If Mrs Pogan had selected “Fewer than 15 employees”, a further question is asked as to how long the person has been employed. If “less than one year” is selected, a box below states the following:
“Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.
An employee who works for a small business (that is, a business with fewer than 15 employees) must have worked for the business for at least one year at the time they were dismissed in order to be eligible to make an unfair dismissal application.Go to the Fair Work Commission's Unfair dismissals benchbook to find case law about:
the minimum employment period.”
I do not consider this to be a “dead end”, as prospective applicants are encouraged to review the Commission’s unfair dismissals benchbook. Mrs Pogan has not indicated that she has any learning difficulties and holds a very responsible voluntary position within the SES. Accordingly, I consider it was within her capability to satisfy herself with the questions posed in the helpful online quiz that she was eligible to bring a claim of unfair dismissal.
Whilst I am certainly sympathetic to Mrs Pogan’s stated medical condition, she has not provided any evidence of attendance at medical practitioners regarding her condition of depression and anxiety which would prevent her from having capacity or reduced capacity to bring a claim. It is also important to evaluate this assertion against her clear capacity to provide very detailed claims within the letter dated 3 April 2020, where she has demonstrated excellent sentence and paragraph construction and an influencing writing style.
I have had regard to the evidence before me and I note, in particular, a decision of Deputy President Sams in Micallef v Garfield Child Care Pty Ltd.[6] The Commission has held on numerous occasions that if an individual is suffering from depression and anxiety, this may not constitute a sufficient reason to justify a delay in lodging an application under s.394 of the Act. I note in particular the decisions in Custo v Norstar Recycling Pty Ltd,[7] Muir McMeeken v Action Industrial Catering Pty Ltd[8] and Rose v BMD Constructions Pty Ltd.[9] As such, I am not satisfied that Mrs Pogan’s medical condition itself qualifies as an ‘exceptional circumstance’ warranting an extension of time.
Taking into account all of the circumstances resulting in the delay in lodging the application, I am not satisfied that Mrs Pogan has demonstrated exceptional circumstances for the reason for the delay. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
Mrs Pogan acknowledged at the hearing that she was aware she had been dismissed on 26 February 2020, and quite properly withdrew an earlier objection that she did not learn of the dismissal until it was put in writing on 15 April 2020. I am satisfied that Mrs Pogan learned of the dismissal on 26 February 2020.
This criterion is not a matter in dispute. I find this a neutral consideration.
Section 394(3)(c)- Any action taken by the person to dispute the dismissal
In Prasad v Alcatel-Lucent Australia Ltd[2011] FWAFB 1515, the Full Bench considered a case where an employee challenged his dismissal with the employer internally and did not lodge an unfair dismissal application until some four months after the dismissal:
“[19] The unfair dismissal application was lodged almost four months outside the standard time period in s.394(2)(a). It would seem that, for some of the period, the Appellant was not aware of the possibility of pursuing an unfair dismissal application. However, even when he became so aware, he did not lodge the application until almost two months had passed. This was because he decided to pursue the possibility of redeployment or re-employment with Alcatel-Lucent rather than commencing unfair dismissal or other legal proceedings. Although the Appellant alleged that he was misled by the Respondent with respect to redeployment opportunities, there seems little to suggest from the evidence regarding the communications between the parties that this was the case.”
Mrs Pogan appears to have been aware she was eligible to lodge an unfair dismissal application as of 3 April 2020 at the very latest. Mrs Pogan wrote the letter to Amcol stating she believed she had been unfairly dismissed and that Amcol was not a small business. As I have stated, the letter was lengthy, detailed and well-written.
Whilst Mrs Pogan did not make the application until sometime following the 3 April 2020 letter to Amcol, I have already considered that delay in the consideration of s.394(3)(a). I consider Mrs Pogan’s letter to Amcol dated 3 April 2020 to be a clear demonstration of action taken by her to dispute the dismissal. I consider this criterion to weigh in favour of the discretion to grant an extension of time.
Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
I consider that the delay of 37 days would cause very minimal prejudice to Amcol given its size and its resources. I considered that this is a neutral factor when considering whether to exercise the discretion to grant an extension.
Section 394(3)(e) – The merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[10] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:[11]
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.”
I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. I consider merit to be a neutral factor in this case.
Section 394(3)(f) – Fairness as between the person and other person in a similar position
A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:[12]
“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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.[13] Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
I am not satisfied that the issue of fairness as between Mrs Pogan and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mrs Pogan.
Although I have sympathy for the range of matters Mrs Pogan dealt with in the period following her dismissal, the circumstances were not, in my evaluative assessment, out of the ordinary course, unusual, special or uncommon.
Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive application for an unfair dismissal remedy is dismissed.
I order that the application be dismissed.
COMMISSIONER
Appearances:
Mrs S Pogan, the Applicant.
Ms C Corbett-Burns, Solicitor for the Respondent.
Hearing details:
18 June 2020, Brisbane (by Telephone).
<PR720322>
[1] Fair Work Act 2009 (Cth) s.394(2); see for example Grant Reeve v Monadelphous Engineering Associates Pty Ltd [2018] FWC 2219 at [17]; Brian Shipp v Svitzer Australia Pty Ltd T/A Svitzer Australasia [2014] FWC 7862 at [16]; Robert Gordon v Uniting Communities [2014] FWC 6220 at [17]
[2] [2011] FWAFB 975.
[3] [2018] FWCFB 901.
[4] (2010) 197 IR 403 at [16]-[18].
[5] [2018] FWCFB 901 at [38].
[6] [2013] FWC 5447.
[7] [2012] FWA 8278.
[8] [2012] FWAFB 5933.
[9] [2011] FWA 673.
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Ibid.
[12] [2016] FWCFB 6963 at [41].
[13] See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair
R Printed by authority of the Commonwealth Government Printer
epublic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.
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