Ms Leanne Gore-Johnson v Lexmark International (Australia) Pty Ltd
[2023] FWC 2723
•18 OCTOBER 2023
| [2023] FWC 2723 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Leanne Gore-Johnson
v
Lexmark International (Australia) Pty Ltd
(U2023/8907)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 18 OCTOBER 2023 |
Application for an unfair dismissal remedy – extension of time.
On 15 September 2023, Ms Leanne Gore-Johnson made an application to the Commission for an unfair dismissal remedy. Ms Gore-Johnson contends that she had been unfairly dismissed from her employment with Lexmark International (Australia) Pty Ltd (Lexmark) on 15 August 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).
Ms Gore-Johnson's application was filed 10 days outside the 21-day period. Ms Gore-Johnson requires the Commission grant a further period for the application to be made. The Respondent opposes the application.
On 2 October 2023, at the mention/directions hearing held before me, Lexmark confirmed its correct legal name as Lexmark International (Australia) Pty Ltd. I have utilised the discretion in s.586 of the Act to amend Ms Gore-Johnson’s application accordingly.
At a hearing on 17 October 2023, the question of whether to grant additional time was dealt with. Ms Gore-Johnson appeared and gave evidence on her own behalf. Ms Maryanne Abdullah, Human Resources Manager, represented Lexmark and gave evidence on behalf of the Respondent.
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. These 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.[1] 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.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Each of these matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application and set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 5 September 2023. The delay is the period commencing immediately after that time until 15 September 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The Act does not specify what reason for delay might justify granting an extension however past decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour. However all of the circumstances must be considered.[4]
On 15 August 2023, Ms Gore-Johnson was dismissed from her employment. On 4 September 2023, she wrote to Lexmark requesting that they pay the commission she believed at the time was owed to her. Ms Gore-Johnson sought a response to her inquiry within 24 hours. Ms Gore-Johnson's evidence is that her request for a response within 24 hours was arbitrary and she had not at that time considered filing an unfair dismissal application.
Lexmark notified Ms Gore-Johnson that it would be one week before she would be provided with a response to her request. On 12 September 2023, Lexmark provided a response informing Ms Gore-Johnson that in accordance with schedule 2 of her employment contract she was not entitled to receive a commission payment upon termination of her employment.
Ms Gore-Johnson submits the second reason for the delay is that she became aware on 15 September 2023 of the alleged “real reason” for her dismissal being that her position had been advertised back in March 2023 and Lexmark were seeking to replace her. Ms Gore-Johnson filed a position description she obtained from an undisclosed source which she says is evidence to support her allegation.
Lexmark objected to Ms Gore-Johnson's submission in that it was an incorrect assertion and lacked evidence to support the allegation as it was based on hearsay. Lexmark submits that the role advertised in March, some five months prior to her dismissal, was for a position based in Sydney and was not Ms Gore-Johnson's role in Melbourne. It further submits the advertised Account Manager’s role is different to Ms Gore-Johnson’s role in that the primary focus is Enterprise and Government. It is not in contention that Ms Gore-Johnson was not responsible for Government accounts. Lexmark submits there has been a recruitment freeze and Ms Gore-Johnson's role has not yet been filled. It further submits that because of the recruitment freeze Ms Gore-Johnson's clients have been distributed amongst other employees in the organisation.
Ms Gore-Johnson's application was made 10 days outside the required time for filing an application. It was open to Ms Gore-Johnson to file the application prior to receiving a response from Lexmark to her inquiry made on 4 September 2023, however she made no attempt to do so. After receiving a response from Lexmark on 12 September 2023 Ms Gore-Johnson delayed the making of an application for a further three days. Ms Gore-Johnson has not provided a reasonable explanation for the further delay.
The second reason relied on by Ms Gore-Johnson was that she became aware on the 15 September 2023 from an undisclosed source that a role she alleges was her position had been advertised in March 2023. During the hearing Ms Gore-Johnson conceded that it was possible that the role advertised five months prior to her dismissal may not have been her role. Regardless, the evidence relied on by Ms Gore-Johnson was hearsay and therefore I attribute no weight. Even if I had accepted Ms Gore-Johnson's evidence on this matter whilst it may have been her reason for filing an unfair dismissal application on that day, it does not provide a reasonable explanation for the delay up until the 15 September 2023.
The two reasons relied on by Ms Gore-Johnson for making her unfair dismissal application out of time do not provide a reasonable or acceptable explanation for the whole of the delay. The absence of an acceptable explanation as to why Ms Gore-Johnson lodged her application out of time weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in contention that Ms Gore-Johnson was notified of the dismissal on the same day that it took effect. Ms Gore-Johnson also received a letter outlining the reasons relied by Lexmark for the dismissal and therefore had the benefit of the full period of 21 days to lodge an unfair dismissal application.
This consideration therefore does not weigh in favour of granting an extension of time.
Action taken to dispute the dismissal
On 4 September 2023, Ms Gore-Johnson wrote to Lexmark to dispute the accuracy of the sales performance data they relied on as reasons for her dismissal. Ms Gore-Johnson stated in her letter that unless she was paid the commission owing to her, she would have no choice but to take legal action to recover the payments. Ms Gore-Johnson did not however dispute the dismissal.
Other than the making of this application, there is no evidence of any other action taken to dispute the dismissal, and I therefore consider this factor to be neutral.
Prejudice to the employer
Ms Gore-Johnson submits that she is not aware of any prejudice Lexmark would suffer should I grant the extension of time for the making of her application.
Lexmark did not make any submission relevant to this factor and there is no evidence before me of any particular prejudice to Lexmark. I consider this to be a neutral factor.
Merits of the application
The termination letter dated 15 August 2023 sets out the reasons relied on by Lexmark for the termination of Ms Gore-Johnson's employment. The reasons relied on include Ms Gore-Johnson's ongoing underperformance and failure to meet the year-to-date targets. Lexmark submits Ms Gore-Johnson's initial 6-month probation period had been extended for a further 6 months due to her alleged under performance. Lexmark submits Ms Gore-Johnson had attended various performance meetings with Mr Dorian her manager over the past two years. Lexmark further submits Ms Gore-Johnson attended a performance meeting with Mr Dorian Large and the outcome of that meeting was recorded in a Performance Improvement Plan which was detailed in a letter provided to her on 15 May 2023.
Ms Gore-Johnson submits that she was unaware that she had been underperforming. Ms Gore-Johnson submits that she had never received the letter from the meeting that Lexmark alleges took place on the 15 May 2023 and the year-to-date targets set out in her termination letter were incorrect.
The Act requires me to take into account the merits of the application in considering whether to extend time. The issue in this matter is whether Ms Gore-Johnson had been fairly dismissed due to the alleged underperformance in her role. There are competing contentions of the parties in relation to the merits of the application. Further the merits of the application have not been fully examined or agitated. In the circumstances, I treat the merits as a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is no material before me to weigh in my assessment of whether there are exceptional circumstances and consider this factor to be neutral.
Conclusion
In summary, having considered all the factors set out in s.394(3), none of the considerations I need to take into account weigh in favour of granting an additional period of time for the making of Ms Gore-Johnson's application. I have considered all of the matters raised by Ms Gore-Johnson and I am not satisfied that the requisite exceptional circumstances exist. Ms Gore-Johnson has not provided an exceptional or reasonable explanation for the delay in filing the application. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Accordingly, the application is dismissed. An order[5] to this effect will accompany this decision.
COMMISSIONER
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] PR767368.
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<PR767366>
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