Mrs Tania Klemm v Greater Bendigo Real Estate Pty Ltd T/A Ray White Bendigo
[2024] FWC 3505
•17 DECEMBER 2024
| [2024] FWC 3505 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Tania Klemm
v
Greater Bendigo Real Estate Pty Ltd T/A Ray White Bendigo
(U2024/13197)
| COMMISSIONER TRAN | MELBOURNE, 17 DECEMBER 2024 |
Application for an unfair dismissal remedy – Extension of time – No exceptional circumstances – s 394(3) factors - Application dismissed
On 4 November 2024, Ms Tania Klemm (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) in relation to the termination of her employment by Greater Bendigo Real Estate Pty Ltd trading as Ray White Bendigo (the Employer/Respondent).
Ms Klemm started employment with Barry Plant Real Estate Bendigo around 6 February 2023. In April 2024, she commenced employment with Ray White Bendigo. Ms Klemm says that her employment transferred from Barry Plant to Ray White Bendigo at this time. Corina Vucic, Director of FC Business Solutions, which provides HR services to Ray White Bendigo, dismissed Ms Klemm on 4 October 2024. Ray White Bendigo told Ms Klemm that it was terminating her employment within her probationary period.
Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394. As the dismissal took effect on Friday 4 October 2024, the statutory period of 21 days ended at midnight on Friday 25 October 2024. Ms Klemm filed her application on Monday 4 November 2024, 10 days after the end of the statutory period.
Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My reasons follow.
Background
I granted permission for both parties to be represented to ensure fairness as between the parties.[1]
Both parties filed material, including witness statements, documentary evidence and submissions, in accordance with my directions. Ms Klemm filed further evidence after the hearing, which was a record of a conversation that she had with the Fair Work Ombudsman. No reasons were provided by Ms Klemm as to why this evidence was not available to be filed in accordance with my directions. Despite this, I have decided to admit that further evidence because it is directly relevant to and probative of the key reason why Ms Klemm says she should be granted an extension of time. While the respondent could not cross-examine Ms Klemm on that evidence, it did not oppose admission. Ultimately, the evidence does not assist Ms Klemm and therefore does not advantage her at the expense of the respondent.[2]
I conducted a hearing on Wednesday 4 December 2024. Ms Klemm provided evidence on her own behalf. Ms Corina Vucic, Director of FC Business Solutions who provides external human resources services and operational support to Ray White Bendigo gave evidence on behalf of the Respondent.
Relevant Law
Section 394(2) of the Act provides that an application for an unfair dismissal remedy 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).
Section 394(3) of the Act provides that:
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 power to extend time is discretionary, but may only be exercised if first satisfied that there are exceptional circumstances.
Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[3] establishes the following:
· the Commission must consider all of the circumstances;
· the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
· but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
· a single event can be exceptional;
· a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon;
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[4]
394(3)(a) – the reason for the delay
The Full Bench in Ozsoy said that an applicant needs to provide a credible reason for the whole of the period that the application was delayed, and that the delay is the period beyond the specified 21 days.[5] In this matter, that period is 10 days. However, the context leading up to the delay is also relevant to explain the delay.[6]
Ms Klemm’s submission is that the reason for the delay in lodging her application was that she was initially in complete shock and denial about her dismissal. Ms Klemm’s submission was that she did not delay in seeking advice. Rather she diligently sought advice from the Commission, the Law Institute of Victoria and then personal (but not employment) lawyers. The statutory period ended during the time that she was waiting to speak with her personal lawyers: she contacted them on 22 October 2024 and made an appointment for 29 October 2024; the time limit expired on 25 October 2024.
Ms Klemm relied heavily on her contact with the Commission, when she says that she was advised that she did not have grounds for an unfair dismissal application. Ms Klemm says that what is exceptional is that the advice was definitive, but premature, as the advisor did not have all the information. Her evidence is that while she does not recall the specifics of what was said, what kept ‘ringing in her ears’ was that she did not have a case.
Where calls are made to the Commission, the Commission can obtain a recording, with Ms Klemm’s consent that it be provided to the member and other parties to the matter. During the hearing, Ms Klemm said that she had called ‘Fair Work Australia.’ I enquired of Ms Klemm whether she recalled if she had called the Commission or the Ombudsman. She did not know. This is an understandable mistake to make. I gave Ms Klemm time after the hearing to consider whether to consent to allow me and the employer access to the call recording if it existed. After the hearing, Ms Klemm filed a record of a conversation that she had with the Fair Work Ombudsman and her solicitor’s submissions with that record indicated that she called only the Fair Work Ombudsman; that is, she never spoke with the Commission. I therefore did not request the Commission’s call recording.
In relation to the record of Ms Klemm’s enquiry to the Fair Work Ombudsman, the details provide only what Ms Klemm told the Ombudsman. There is no information about when the enquiry was made and only limited information about what advice or information the Ombudsman provided to Ms Klemm, which was a link to a webpage on the FWO’s website relating to unfair dismissal.[7]
That page states that the Commission decides cases of unfair dismissal, refers to the 21-day time limit for applications, addresses the minimum employment period and different rules for small businesses. It also refers to other types of dismissal applications and provides links to further information. I do not have any evidence about whether Ms Klemm accessed the link she was provided, or the further links.
Ms Klemm’s evidence is that she sought and received the definitive advice that she did not have grounds for an unfair dismissal application on 10 October 2024, 6 days after her employment ended and well within the 21-day period.
Ms Klemm also gave evidence that her mental health was affected by the dismissal. She did not provide any medical evidence about the mental health condition that she is experiencing nor how it may have affected or impaired her ability to file an unfair dismissal application within time.
Ms Klemm argued that the definitive advice, combined with her mental health resulted in the delay.
I consider that Ms Klemm’s reasons for the delay do not weigh in favour of extending time. First, I do not have clear evidence that the advice was given as definitively as Ms Klemm asserts. Second, that advice was given early within the 21-day period and Ms Klemm continued to seek alternative advice because she continued to feel that her dismissal was unfair. Last, the delay occurred while she was awaiting an appointment with a solicitor. To Ms Klemm’s credit, she did not delay after she finally received advice.
I do not consider that there is anything out of the ordinary, unusual, special or uncommon in the set of circumstances Ms Klemm found herself in. Ms Klemm had access to advice about the Act’s strict time limits; it is information that is readily apparent from internet searches. Moreover, it was provided to her as part of her contact with the Fair Work Ombudsman. That she may not have accessed it does not assist her to make out that there were exceptional circumstances. Ms Klemm experienced shock and disbelief about her dismissal, which affected her mental health. This is also a normal and common result of dismissal; there was no medical evidence about how her mental health impaired her ability to make an application. Indeed, there was evidence to the contrary that Ms Klemm was able to seek advice. She then simply waited for the availability of a solicitor to speak to. The timing is unfortunate, but not enough to overcome the high hurdle of exceptional circumstances.
394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
Ms Klemm was informed in person by Ms Vucic on the day that her dismissal took effect that she was dismissed. I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.
394(3)(c) – any action taken by the person to dispute the dismissal
Other than seeking advice as detailed above, Ms Klemm did not take any action to challenge her dismissal until she filed this application. I consider that this factor does not weigh in favour of extending time.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The delay was 10 days. The Respondent in its submissions stated that it does not suffer extreme prejudice although it notes that this is its busiest time, and it has gone to considerable expense to respond to the application. The applicant submitted that any prejudice to the respondent by the short delay would be minimal.
I agree that the delay was minimal and there would be no significant prejudice to the employer if I were to extend time. I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.
394(3)(e) – the merits of the application
My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[8] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[9]
I am of the view that the applicant has an arguable case. She would be required to establish that she had completed the minimum employment period required under s 383 of the Act but she has an arguable case to do so. I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.
394(3)(f) – fairness as between the person and other persons in a similar position
This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[10] The Full Bench in Croker has indicated that this factor may involve a comparison of cases involving similar facts.[11] Neither party made submissions relevant to this factor. As I am unaware of any relevant matter, I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.
Conclusion & Order
Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made.
I order that the application for an unfair dismissal remedy under matter number U2024/13197 filed by Ms Tania Klemm on 4 November 2024 be dismissed.
COMMISSIONER
Appearances:
L Faust, instructed by Peterson Westbrook Cameron with permission for the Applicant
C Pym, instructed by New Chapter Legal with permission for the Respondent
Hearing details:
Wednesday
4 December 2024
Melbourne
Final written submissions:
Tuesday
10 December 2024
[1] See 596(2)(c)
[2] While s 591 of the Act provides that the Commission is not bound by the rules of evidence, they are nevertheless relevant and fairness, in particular, must be considered: Re: Construction, Forestry, Mining and Energy Union, PR935310 (AIRC, Ross VP, 25 July 2003) at [36] and Lumsden v Ringthane Pty Ltd T/A Tradewinds Hotel[2021] FWCFB 4443 at [50]
[3] [2011] FWAFB 975 at [13]
[4] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39]
[5] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287at [12]
[7] see Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council[2022] FWCFB 109 at [26]
[9] [2018] FWCFB 4109 at [72]
[10] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]
[11] Croker at [49]
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