Ms Aria Brawn v Rosegar Pty Ltd
[2024] FWC 1858
•17 JULY 2024
| [2024] FWC 1858 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Aria Brawn
v
Rosegar Pty Ltd
(U2024/6667)
| COMMISSIONER LEE | MELBOURNE, 17 JULY 2024 |
Application for an unfair dismissal remedy
Introduction
This is an edited version of my decision delivered ex tempore and recorded in transcript on 9 July 2024. I refused to grant an extension of time and issued an order[1] to that effect on 9 July 2024.
This is an application for an unfair dismissal remedy in U2024/6667, Aria Brawn v Rosegar Pty Ltd. Ms Brawn (the Applicant) commenced employment with Rosegar Pty Ltd on or about 22 February 2021, and she was employed in the position of operations manager. The reason given by the Respondent for the decision to terminate the Applicant's employment was not clear at the time of dismissal. It would appear on the evidence the Applicant had in fact resigned, with two weeks' notice, one week of that to be taken as personal leave, and one week to be worked out. The Applicant’s last day of employment was to be 24 May. However, the Respondent terminated the Applicant's employment, effective 17 May, and paid one week in lieu of notice for that remaining week.
Application was filed outside the statutory timeframe
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act, and that application was lodged on 11 June 2024. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant's employment was terminated by the Respondent with effect from 17 May 2024. Based on a termination date taking effect on 17 May 2024, the application for a remedy should have been lodged by no later than 7 June 2024. The application was therefore lodged outside of the time prescribed. The application was made, in effect, four 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, I'm just going to say a few things about the principles that apply when considering whether I should exercise my discretion to extend time. It is evident from the text of section 394 of the Act that the statute allows me to allow that further period, but that discretion can only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of that discretion. The matters 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 those 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 matter collectively and to ask whether, collectively, the matters show exceptional circumstances, and the citation for that is Nulty v Blue Star (2011) FWAFB 975. So, putting it more 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 that, taking into account section 394(3), that there are exceptional circumstances, and I will now consider those matters in the context of the application.
Reason for the delay
In terms of reason for the delay, the Act does not specify what reason for delay might weigh 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 a delay usually weighs against the Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay usually weighs in the Applicant's favour, but of course, all the circumstances have to be considered. Now, in this matter, the Applicant has filed a statement, and in that statement[2] – I will just refer to the first three paragraphs:
“I was asked to write a formal statement outlining why my application for unfair dismissal was outside the 21-day file period.
The simple and honest answer is, I was unaware that when I received the email that stated my last day of employment was 17 May, that it was 21 days from this date, not my notice period of 24 May, which is due to my lack of knowledge on the law.
I have researched the acceptable reasons for a late application, and I do not meet the criteria for any of them, unless you count the extreme mental illness I am currently struggling with. I didn't have a family emergency or was struck down by illness. It was just a simple misunderstanding on my behalf, being unrepresented.”
The Applicant resigned in clear terms on 10 May 2024. She provided two weeks' notice, meaning her last day was to be on 24 May. However, the Respondent terminated her employment with effect from 17 May. The Applicant clearly understood her employment ended on 17 May. That is reflected in the date that she put in her F2, and she confirmed during her evidence today her understanding was that she understood the termination took effect on that day. The Applicant indicated she knew there was a 21 day period to lodge, and she had obtained that information through a search of the Fair Work Commission website, and by having a discussion with someone from Legal Aid, but she thought that that included the notice period that was paid in lieu.
I have considered that reason. The Applicant understood her termination took effect on 17 May - I have established that. While the Applicant says that she thought that the 21 days would apply from a later date than the actual date the termination took effect, she was incorrect about that. It is not apparent why the Applicant would think that the 21 days was from a date other than the effective date of dismissal. To the extent that she had sought advice about what the time period was, there is no evidence, and the Applicant did not suggest today, that she was given erroneous advice that the 21 days operated from some other date, other than the date of dismissal. The Applicant was confused on her evidence. The confusion is not really understandable in all of the circumstances. Generally speaking, the Commission has not considered lack of awareness of the 21 day time frame as an acceptable reason for the delay, nor in general, lack of knowledge about the statutory requirements.
In all of the circumstances, I am not satisfied that the reason advanced in respect of the Applicant’s confusion is an acceptable reason for the delay. In respect of the reference to extreme mental illness that the Applicant is struggling with, having asked the Applicant some further questions about that matter today, her evidence was to the effect that she was struggling with sleep, and she had panic attacks, and various symptoms of extreme mental illness that she was suffering while she was employed. This underpinned the reasons for her purported constructive dismissal and resignation. There was reference to medical evidence, that was not provided, but I am not doubting its veracity, that she was given a medical certificate for the first week of her two weeks of notice period, that is, the week that led up to 17 May but, there is no medical evidence, and the Applicant has indicated there isn't any medical evidence of her incapacity at any time subsequent to that.
I accept that the Applicant was struggling with her mental state, but I'm not satisfied that she was so incapacitated by that that that precluded her from filing an application within the statutory time frame. So, in the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay, and it's a matter that weighs against the Applicant in this case.
Whether the Applicant first became aware of the dismissal after the date it took effect
Turning to the next factor, whether the Applicant first became aware of the dismissal after the date it took effect. The evidence is the Applicant was advised that her employment would end on 17 May 2024. In the circumstances, that is a neutral consideration.
Action taken by the Applicant to dispute her dismissal
In terms of any action taken by the applicant to dispute the dismissal, there was no evidence on that point. That is a neutral consideration.
Prejudice
As to prejudice, the Respondent didn't make any submissions that there was any prejudice that I recall. In any event, there was no evidence of any prejudice. The Applicant had nothing to say about the matter, which is not surprising in the circumstances. The question of prejudice is a neutral consideration.
Merits of the application
Turning to the merits. In cases like this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate I make an assessment about the merits of the case based on the limited material that's available to me, through the prism of viewing the Applicant's case at its most favourable. Now, as I established earlier, the Applicant had resigned from her employment with an effective date of 24 May. The Applicant submits that she did so because she had no choice but to resign, and of course that's not a matter I will be making any determinations about today, but that sits there as a relevant factual background.
The Applicant's dismissal letter states that the Respondent believes it to be in the best interests of the business for the Applicant not to work out the notice period and brings the employment to an end by termination at the initiative of the Respondent on 17 May. No mention is made of serious misconduct in that letter. In the F3 filed by the Respondent, it is said that the reason for the termination is the Applicant changed the passwords on the Respondent's computers, which had the effect of locking them out, and they had to get in a computer expert to reset them. Now, I am not making any determinations about whether that conduct occurred or didn't occur. I will simply establish today that there is a contest on that factual assertion from the Respondent. The short point is, the Applicant says, that the conduct didn't occur.
The Applicant made reference to what her evidence would be if the case was to run, which was to the effect that she did have some engagement with the company's computers, as I understood it, but that it was through another person, who was helping out. In any event, the submits her evidence would be that she didn't change the passwords. Now, relevantly, the Respondent also says it is a small business in that it has less than 15 employees, again, I am making no findings on that. If they are in fact a small business, and the Small Business Unfair Dismissal Code applies, and if the Respondent could establish that it had a reasonable belief that the Applicant had changed the passwords, and that that fell into the category of serious misconduct, then that would render the Applicant's case a fairly weak one. However, if the Respondent is not a small business, then there would be that broader question for the Commission to determine, as to whether the misconduct actually occurred, and other factors would come into play including, the process that was followed to affect the dismissal. It certainly appears, prima facie, that the dismissal was devoid of any process, that is, the letter of termination does not even reference the now alleged reason for the dismissal. That would weigh in favour of the Applicant in a determination on the merits, one would think.
Against that, of course it might be found that it was serious misconduct, in which case that may outweigh the procedural deficiencies. There is a great deal of uncertainty over what the merits would be, depending on what the outcome was on some of those key factual matters. There is also a question as to whether the Applicant would achieve any level of compensation, in circumstances where it is not in contest she was actually paid up until the date she had provided her period of notice when she resigned. However, that does not bear on a consideration of the merits case per se, that is, a merits case as to whether the dismissal was fair or unfair. It is a factor that is worthy of note, but it is not a factor I am taking into account in making my determination on the extent to which the consideration of merits weighs in favour or against the Applicant.
Overall, considering the merits, it seems to me that the Applicant's claim is on a preliminary assessment, not without merit. That is not to suggest that it would succeed, but I am satisfied there is at least some merit which would give the Applicant a justifiable reason to pursue her unfair dismissal claim. In the circumstances, that is a matter that weighs slightly in favour of the Applicant. I do not think the case is so meritorious that it weighs strongly in favour.
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, neither party has brought to my attention any relevant matter concerning that consideration, and I am unaware of any relevant matter, and I therefore consider this to be a neutral consideration.
Conclusion
In 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 the account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period. As I have indicated, I am not satisfied there is an acceptable reason for the delay. That weighs against the Applicant. The merits consideration weighs slightly in favour of the Applicant, and all other factors are neutral. Considering all of those factors together, as I say, I am not satisfied that there are exceptional circumstances. As I am not satisfied that there are exceptional circumstances, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making an application.
An extension of time is therefore refused, and the application for an unfair dismissal remedy made by the Applicant is dismissed, and an order[3] to that effect will be separately issued.
That concludes the decision.
COMMISSIONER
Appearances:
Ms A. Brawn, the Applicant
Mr S. Tonks, Representative for the Respondent
Mr G. Humphries, for the Respondent
Mrs R. Humphries, for the Respondent
Hearing details:
9 July 2024.
Microsoft Teams.
Printed by authority of the Commonwealth Government Printer
<PR777041>
[1] PR776808.
[2] Digital Court Book at page 5.
[3] PR776808.
Printed by authority of the Commonwealth Government Printer
<PR777041>
0
0
0