Ms Na (Nicole) Dong v Incitec Pivot Limited
[2023] FWC 1050
•5 MAY 2023
| [2023] FWC 1050 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Na (Nicole) Dong
v
Incitec Pivot Limited
(U2023/3024)
| COMMISSIONER JOHNS | MELBOURNE, 5 MAY 2023 |
Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed
On 8 April 2023, Ms Na Dong (Applicant), made an application to the Fair Work Commission (Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Incitec Pivot Limited (Respondent).
The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Submissions
In addition to her Form F2 Application, which at item 1.6 explained why her application was not filed within 21 days of the dismissal, the Applicant filed three witness statements.
The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time and that the dismissal was a case of genuine redundancy.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 20 May 2021.
When was the application made?
It is also not in dispute, and I so find, that the application was made on 8 April 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect”.[1]
As I found above, the dismissal took effect on 20 May 2021. The final day of the 21 day period was therefore 10 June 2021 and ended at midnight on that day. As I found above, the application was made on 8 April 2023. Therefore, the application was made 667 days late.
Because the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. That is to say, I need to consider whether to grant the Applicant an extension of time.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I 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 needed to have been made by midnight on 10 June 2021. The delay is the period commencing immediately after that time until 8 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
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.[5]
Submissions
The Applicant submitted that the delay was associated with her first accepting that her position was terminated based on genuine redundancy, but then later discovering when browsing LinkedIn that there had been two hires with the same title in or around October 2021 and June 2022 respectively.
Before me the Applicant submitted that she first became aware of this in early April after which she filed her unfair dismissal application on the 8 April 2023.
The Respondent submitted that the delay between early April and 8 April 2023 is unexplained. The Respondent further submitted that in light of the Applicant’s submission that even two months after the redundancy she could not understand why she was not offered an alternate role, the Applicant also had the opportunity to file an unfair dismissal application and did not do so.
Evidence
I issued Directions on 24 April 2023 requiring the Applicant to file a signed witness statement addressing the factors in s. 394(3) of the FW Act.
The Applicant submitted three signed witness statements in support of her application.
The first witness statement dated 26 April 2023 did not address the factors in s.394(3) of the FW Act directly but rather provided a narrative of the alleged unfair dismissal.
The second witness statement dated 27 April 2023 addressed the factors in s. 394(3) of the FW Act. The last and third witness statement dated 2 May 2023 merely supplemented the second witness statement.
In relation to the reason for the delay, the Applicant submitted that she was the Treasury Settlement Officer with the Respondent until her role was made redundant on 20 May 2021. Out of respect for the Respondent’s employees and their privacy I do not record the names of individuals mentioned during the hearing here.
The Applicant submitted that person A worked in the role of Treasury Settlements and Lease Accountant between May 2021 to November 2021 after her departure from the Respondent. However, when browsing LinkedIn, the Applicant came across suggested individuals in her old place of employment.
The Applicant submitted that Person B worked between October 2021 to July 2022 in her old role of Treasury Settlement Officer. And that Person C also was engaged in the role of Treasury Settlement Officer from June 2022 onwards.
The LinkedIn data is public record and was thus substantiated during the hearing that the above two allegations were indeed correct.
During the hearing, I provided the parties with a 30 minute adjournment and referred them to the decision of Joanne Boudaher v Lateral Estate Pty Ltd and sought submissions in light of its relevant and analogous circumstances.[6] In that decision I noted at paragraph 16:
Often times an employee cannot judge the genuineness of the redundancy their employment is the victim of. Later in time acquired knowledge of a replacement employee necessarily occurs later in time. Ordinarily, this renders the circumstances out of the ordinary course, or unusual, or uncommon. Certainly, they are special.
Unlike the referenced case, the Applicant in this scenario did not promptly lodge her unfair dismissal application upon discovery. But rather it took the Applicant between at least 1 to 7 days to lodge her application.
The Applicant submitted before me that due to familial issues and responsibilities, the unfair dismissal application was not a “priority” for her. The Applicant also provided that it also took her a further “couple of days” to research and find the relevant information and forms before lodging her application.
In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd,[7] the Full Bench noted that:
Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
It has been established that ignorance of the law, in the absence of other circumstances, cannot constitute exceptional circumstances.[8]
The Applicant submitted that she felt aggrieved in not being offered an alternate role even until two months after the redundancy. I am not convinced that the Applicant did not at least turn her mind to what remedies she may have access to since her redundancy. Therefore, I am not satisfied that there is a satisfactory explanation for the delay between early April to 8 April 2023.
Findings
Having regard to the above, I am not satisfied that the reasons for the delay evidence exceptional circumstances. They do not cause me to be inclined to grant an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
It is uncontested that the Applicant first became aware of the dismissal on 6 May 2021 when she was consulted about her role being made redundant. At the time the Applicant accepted the Respondent’s explanation of the reason for the termination of her employment.
Therefore, this factor is a neutral consideration.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submitted that she accepted the decision “without complaint” on the belief that her position was genuinely being made redundant.
However, upon finding out in early April, she filed an unfair dismissal application on 8 April 2023.
Despite the delay, the action taken by the Applicant to dispute the dismissal weighs in favour of granting the Applicant a further period to make her application.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submitted before me that there would be prejudice to the Respondent as the Human Resources personnel involved at the time are no longer with the Respondent. Therefore, a key witness to the dismissal is no longer available to give evidence.
I so find that, in the circumstances, there would be special prejudice to the Respondent if an extension of time were to be granted. Accordingly, this weighs against granting the Applicant a further period in which to make her application.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in section 366(2)(d)”,[9] and the same applies to section 394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, the same title of person B and C is of concern, as it appears there was a reversion to the Applicant’s old title upon the departure of person A from the merged title. However, this is not determinative of the merits of the matter. It may be that 7 months after making the Applicant redundant, the Respondent reverted to the old structure. There may be good business reasons for that. However, it does not distract from the fact that, when the Applicant was made redundant, her unique position (at that time) disappeared.
Although it might be said that the Applicant’s case is not without merit or lacking in any substance, I am unable to make any determination of the merits without having heard all the evidence. This is a neutral factor in deciding whether to grant a further period for the Applicant to make her application.
Fairness as between the Applicant and other persons in a similar position
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 nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay (as stated above);
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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 nor unprecedented, nor even very rare.[10] 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.[11]
Having regard to all of the matters at s. 394(3) of the FW Act and the findings I have made above, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Ms Na Dong for herself
Ms Jose and Ms Griffin for the Respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams video-link):
3 May.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[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, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] [2020] FWC 5025.
[7] [2011] FWAFB 975, [14].
[8] Ms Susan Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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