Ms Deborah Schwab v Absolute Security and Private Investigation Pty Ltd

[2024] FWC 1817

[2024] FWC 1817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Deborah Schwab
v

Absolute Security and Private Investigation Pty Ltd

(U2024/5174)

DEPUTY PRESIDENT ROBERTS SYDNEY, 11 JULY 2024

Application for an unfair dismissal remedy

1. On 7 May 2024, Ms Deborah Schwab (the applicant) lodged an unfair dismissal application in relation to her dismissal from employment with Absolute Security and Private Investigation Pty Ltd (Absolute or the respondent).

1. The applicant claimed and I accept, given the notice of termination which was provided, that her dismissal took effect on 2 February 2024.

1. The Fair Work Act 2009 (Act) requires that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3) of the Act if an extension of time is granted. The applicant accepted that the application had been filed outside the 21-day time period.

Legislation

1. The Act describes the circumstances in which the Commission may grant an extension of time in subsection 394(3) as follows:

(3) [Extended time limit]

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 employee 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.

1. I will deal with each of the above matters in turn to determine whether exceptional circumstances exist.

1. I note that the matter was heard in the absence of the respondent who also failed to file a response to the application or any material in response to Commission directions relating to the conduct of the matter.

The reason for the delay

1. The principal reason put forward for the delay relates to earlier steps taken by the applicant against another company to dispute the termination of her employment. Those circumstances are summarised below.

1. On 4 February 2024, shortly after the applicant’s employment came to an end, the applicant filed another unfair dismissal application (first application) against a company called Protecting SA Pty Ltd (PSA). That matter was given a matter number U2024/1166. Correspondence was sent from the Commission to PSA to the attention of Mr. Nathan Sudana. Mr. Sudana sent the email terminating the applicant’s employment. The correspondence from the Commission asked PSA to file a response to the application.

1. Mr Sudana responded through his legal representatives to say that he was not an officer of, nor was he involved in the control or management of PSA. He said in the circumstances he was unable to file any documents on behalf of PSA or participate in any conciliation processes. A request by the Commission to Mr. Sudana’s representative to provide relevant contact details for PSA went unanswered.

1. On 27 March 2024 the first application was allocated to the chambers of another member of the Commission. The application was then served by the Commission on the proper officer of PSA at its registered office. A direction was made for the filing of a response by PSA by 17 April and a directions hearing was listed for 22 April. Mr. Sudana’s legal representatives were directed to attend the hearing on 22 April. It appears that as a result of the non-attendance of any party on the 22 April, the matter did not proceed on that day.

1. On 30 April the applicant advised the Commission that she “may not have indicated the correct employer” in the first application. The applicant said she worked for Absolute Security & Private Investigation Pty Ltd t/a QSEC but was paid by PSA the latter of which, the applicant said, “may simply be a payroll company.”

1. On 3 May 2024 the applicant wrote to the Commission and asked: “Now that I have changed the Respondent to Absolute Security & Private Investigation T/A QSEC, am I still to email the paperwork as requested?”

1. On 7 May 2024 the applicant was sent correspondence from the Commissioner’s associate which included the following:

The Commissioner advises that if you wish to change the name of the Respondent, you will need to discontinue this application, and file a new application and seek an extension of time as the new application will have been filed outside the 21-day time limit.

1. On 8 May 2024, the day after the lodgement of the current application, the applicant formally discontinued the first application.

1. The applicant submitted that she made the first application against PSA believing that this was the company that employed and dismissed her. She said this was the company name that appeared on her payslips. The applicant said that she had “since been advised that this was most likely a labour hire company.” The applicant was unable to say where the advice had come from but maintained the view that Absolute was in fact the true employer. The applicant was unable to produce any other documentation going to the identity of her employer covering the period of almost 2 years of her employment.

1. The present application was made 74 days outside the 21-day time period. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay. Circumstances arising prior to that delay may be relevant to the reason for the delay.[1]

1. Although the applicant did initiate proceedings soon after her dismissal, some months later she had come to the view that the application had been made in error against the incorrect respondent. The basis for, or the accuracy of, the realisation was not clear on the material before me. What is apparent is that the applicant made a decision on or about 30 April that she needed to change course and pursue Absolute rather than PSA. That decision came well after the 21-day time period had elapsed. There is very little else by way of explanation to account for the period from the last day on which the application could have been made against Absolute until the applicant’s position changed. This represents the majority of the period of the delay.

1. I note that it may have been possible for the applicant to seek to amend the first application under s.586 to join or substitute Absolute for PSA as respondent, but this was not the course adopted. It seems very likely that the applicant decided to discontinue and recommence because that course of action had been put to her by correspondence from the Commission. I have taken that into account in the assessment of the reason for the delay. It was reasonable for an unrepresented litigant in the applicant’s position to have regard to and act on that correspondence. That provides some explanation for the discontinuance and commencement of fresh proceedings. It does not account for the strategic decision of the applicant to pursue another entity or the time it took to reach the point where that decision was made. I also take into account the fact that the correspondence itself put the applicant on notice that a discontinuance and the recommencement of proceedings would raise the need for the applicant to seek an extension of time.

1. Ultimately, I think the main reason for the delay in this instance was the applicant’s belief, mistaken or otherwise, that she had brought proceedings against the wrong company. From the date of the expiry of the deadline on 23 February until 30 April, the applicant was apparently content to proceed against PSA. That position changed at the applicant’s initiative. She decided that she no longer wished to proceed against PSA and wanted to pursue a different company. The end result was an application that was 74 days out of time.

Whether the person first became aware of the dismissal after it had taken effect

1. I am satisfied that the applicant became aware of the dismissal by email on 30 January 2024, that is, before the dismissal took effect. This is a neutral consideration here.

Any action taken by the employee to dispute the dismissal

1. The applicant did dispute her dismissal shortly after her termination by making the first application. PSA was on notice of the dispute. The applicant said that the respondent and PSA were owned by the same company. Mr. Sudana, who was the person who gave notice from the applicant’s employer that the employment relationship had been terminated, was also on notice that the termination was disputed because of the first application. Mr. Sudana had the apparent authority to terminate the applicant’s employment. In that case I consider that the applicant’s employer, whichever entity that might be, was also on notice that the termination was disputed. I also note that the applicant wrote to Mr. Sudana shortly after she was given notice expressing her dissatisfaction with her former workplace and the reasons for her termination. She did not say in the email that she was taking action to dispute the dismissal, but the first application followed shortly thereafter. On the state of the evidence, although the applicant did take action to dispute the dismissal, I cannot be satisfied that the respondent was necessarily on notice that the termination had been disputed by that application. There was no other action taken to dispute the dismissal. Overall, I regard this as a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

1. A relevant prejudice is one that the employer would not have suffered had the application been made within the time period. I do not consider that there would be a relevant prejudice to the employer in defending the matter that would not have arisen had the application been filed within time. I consider prejudice to the employer to be a neutral factor in the overall assessment. I note that the mere absence of prejudice does not by itself constitute exceptional circumstances.

Merits of the application

1. I am not required to embark on a detailed consideration of the substantive case[2] or to resolve all contested facts going to the merits for the purpose of dealing with this application. The applicant said that she was dismissed because she had raised concerns with her employer about the installation of a security camera that had been installed in her work area. She said the dismissal occurred very shortly after she raised her complaint. She disputed that the reasons for her termination given in the notice of termination, i.e. “business needs and restructuring”, were the real reasons for her termination. The applicant said that her role involved multiple tasks that were not managed by others in the office and involved tasks that others were not trained in. Mr. Milverton, a previous business manager for the respondent until 22 March 2024, said that 2 other employees were brought into the office after the applicant was terminated to perform work previously carried out by the applicant.

1. The respondent did not file a response or attend at the hearing to put any of the applicant’s assertions of fact in issue. The applicant’s uncontested account is sufficient to provide at least a basis for an application of this kind. There is however little material to confirm that the applicant was in fact employed (and dismissed) by Absolute and a pay slip that shows she was paid, and therefore was likely employed by, PSA. In the absence of further material as to the employing entity, I am unable to determine that the merits of a claim against Absolute weigh positively in the Applicant’s favour.

Fairness as between the person and other persons in a similar position

1. The parties did not bring to my attention any other persons in a like position and I am unaware that there are any such persons with whom the relevant comparison can be made. I regard this as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. 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 nor unprecedented, nor even very rare.[3] Exceptional circumstances may 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 can be considered exceptional.[4]

1. Having regard to all of the circumstances of this case and the matters in s.394(3), and my views in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Schwab for the Applicant.
No appearances for the Respondent.

Hearing details:

By Video using Microsoft Teams at 2:00pm AEST on Wednesday, 26 June 2024.

Final written submissions:

Final submissions filed by Applicant on 26 June 2024.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[2] Kyvelos v Champion Socks Pty Ltd Print T2421.

[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[4] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

Printed by authority of the Commonwealth Government Printer

<PRs776901>