Ms Penni Jones v Honeywell Ltd

[2024] FWC 3537

[2024] FWC 3537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Penni Jones
v

Honeywell Ltd

(C2024/6165)

DEPUTY PRESIDENT SLEVIN SYDNEY, 19 DECEMBER 2024

Application to deal with contraventions involving dismissal – extension of time – application dismissed

1. On 30 August 2024 Ms Penny Jones (Applicant) filed an application under s. 365 of the Fair Work Act 2009 (Act) alleging that she had been dismissed by her former employer, Honeywell Ltd (Honeywell), in contravention of Part 3-1, General Protections, of the Act.

1. The Applicant commenced employment on 17 June 2024 and was dismissed on 17 July 2024. The reason given for the dismissal was the failure to meet the inherent requirements of the job. The Applicant was engaged in the position of Senior Program Specialist. ​ The role involved overseeing and managing projects, involving tasks such as project development, implementation, monitoring, and evaluation. As a senior specialist, the Applicant may be given responsibility for strategic planning, working with various stakeholders, ensuring program effectiveness, and leading teams to achieve program objectives. The role required travel. Honeywell contended that the Applicant was required to have a car to perform her duties. The Applicant contends that Honeywell did not make this clear at the time she was engaged, she was able to perform the duties without owning a car by making alternative travel arrangements, and that she was subjected first to bullying and harassment when she raised that she could do the job without needing a car. The Applicant contends that she was dismissed in part contrary to the s. 365 of the Act.  

1. It was common ground that the application had been filed outside the 21-day time period prescribed by s.366(1)(a) of the Act. The Applicant sought an extension of time to allow the application to proceed.

1. Subsections 366(1)(b) and (2) provide that the Commission may allow a further period for a general protections application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account the following:

a)   the reason for the delay; and

b)     any action taken by the person to dispute the dismissal; and

c)   prejudice to the employer (including prejudice caused by the delay); and

d)     the merits of the application; and

e)   fairness as between the person and other persons in a like position.

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. 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.[1]

1. The application for an extension of time was heard on 22 October 2024. During the hearing the Applicant indicated that she wished to rely upon personal circumstances that contributed to the delay. An adjournment was granted to allow her to file further material relevant to those circumstances. A further hearing was set down for 28 November 2024. The Applicant failed to file any further material and failed to respond to requests for an explanation. I indicated to the parties that I would determine the application on the basis of the material provided at the hearing on 22 October 2024.

1. Each of the matters in s 366(2)(a)-(e) must be considered in assessing whether there are exceptional circumstances. I set out my consideration of each matter below.

Reason for the delay

1. In order to comply with the 21-day period specified by s 366(1)(a), the Applicant ought to have made his application by 7 August  2024. In the circumstances, the application was 23 days late.

1. The delay referred to in s.366(2)(a) is the period commencing immediately after the 21-day period specified in s.366(1)(a) until the date when the dismissal application was lodged on 11 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] 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 and the reason for delay. It is a factor forming part of the overall assessment required by s.366(2)[3].

1. The Applicant gave the following five reasons for the delay:

a)  Delay in obtaining the certificate of separation and final pay slip, which were not issued until 1 August 2024.

b)  The reasons for termination changed following the receipt of the final pay slip issued on 1 August 2024.

c)  Honeywell was still investigating an allegation of bullying and harassment made on 26 August 2024.

d)  Personal circumstances.

e)  Lack of understanding regarding the dismissal process and not discovering the correct form for a general protections claim involving dismissal until 30 August 2024.

1. The first matter concerns the issuing of the separation certificate and final pay slip. An initial certificate was issued on 18 July 2024. It indicated that the dismissal took effect on 17 July 2024 and the reason for the dismissal was the applicant’s inability to meet the role's requirements due to transportation issues. Following the dismissal the Applicant complained to Honeywell in numerous emails about a number of matters associated with the dismissal including her entitlements, the content of her final pay slip, and the content of the certificate. From Honeywell’s point of view all of those matters were resolved by 2 August 2024. As part of that resolution a new certificate was issued which stated a slight change to the reason for dismissal and the termination date as 19 July 2024. Honeywell argued that these administrative changes did not justify the delay in filing the application.

1. The change of the date of the dismissal is relevant and may explain the delay in filing in that it had an impact on the time required to file any challenge to the dismissal under s. 365. However, the change of date only extended that date by 2 days. I do not consider it amounts to a matter that would make the circumstances exceptional for the purpose of s. 366.

1. Similarly, the changes to the final pay slip which reflected the outcome of the many communications between the Applicant and Honeywell following the dismissal was not a matter that contributes to a finding that there were exceptional circumstances justifying an extension of time for the filing of an application disputed the dismissal. That process did not prevent the Applicant from filing if she wished to pursue her claim.

1. The second matter raised by the Applicant also relates to the separation certificate. It is that the reason for dismissal changed.  The first certificate gave the reason as follows:

   Employment is being terminated due to not being able to meet the inherent requirements of the role, by not being able to travel to customer sites regularly. A personal car is required due to difficulty with public transport for sites.

The second certificate stated:

Employment is being terminated due to not being able to meet the inhered requirements of the role, by not being able to travel to customer sites regularly or multiple sites in a day. Public transport is not a viable or long-term option. Access to a personal car is required due to difficulty with public transport.

1. The change is not significant. I do not consider it amounts to a matter that explains or justifies the delay in filing the s. 365 nor would it make the circumstances exceptional for the purpose of s. 366.

1. The third reasons for the delay was that the Applicant had made a complaint to Honeywell about her treatment leading up to the dismissal. That complaint was made on 26 August 2024. Given the complaint was made 40 days after the dismissal it cannot be relevant to the failure to file the s. 365 application within 21 days. It does not make the circumstances exceptional for the purpose of s. 366.

1. The fourth reason for the delay is the personal circumstances that were touched on in the hearing and for which the Applicant was given an adjournment to provide further evidence. In the initial material filed in support of the application it was suggested that this matter arose around 7 August 2024. Details were not provided. The Applicant failed to provide further evidence and so I cannot consider whether those matters contributed to the reason for the delay.

1. The fifth reason given was a lack of understanding concerning the dismissal process and not discovering the correct form for a general protections claim involving dismissal until 30 August 2024. I do not consider ignorance of the timeframe in s. 366 as an exceptional circumstances in this case.  I note that the Applicant was engaged in ongoing correspondence with Honeywell following her dismissal. In that correspondence she challenged the dismissal, challenged the content of the separation certificate, and challenged her final pay. The correspondence makes reference to the Applicant receiving legal advice on her rights and entitlements. It also mentions, in an email of 7 August 2024, receiving advice from “Fair Work”. It appears from that correspondence that the Applicant was aware of her rights and was more than capable of ascertaining the timeframes associated with bringing an application and locating the correct form. This could have been done by appropriate research by the Applicant or through those providing advice to her.

1. I am not satisfied that any of the reasons given for the delay contribute to a finding that there are exceptional circumstances justifying an extension of time.  

Action taken by the Applicant to dispute the dismissal

1. The Applicant disputed various aspects of her dismissal in a series of emails from the date of dismissal up until 2 August 2024.  There were many emails. They covered a number of issues associated with the employment, the dismissal and the Applicant’s entitlements. Honeywell addressed each of the issues raised and made a without prejudice additional payment to the Applicant on account of the issues raised. In an email dated 2 August 2024 the Applicant stated:

Funds have been received in my account today. I request that I am no longer contacted and my personal phone number ending in 723 is deleted from your phones.

Thank you again for the opportunity at Honeywell and wishing you all good thoughts personally and professionally.

1. Honeywell contends that it was entitled from this time to consider the issues raised disputing the dismissal as resolved. I agree.  The Applicant points to further emails sent making a bullying complaint about the manner in which she was treated leading up to the dismissal; but this complaint was not made until late August, and after the 21 day time period for the filing of an application under s. 365.

1. I am not satisfied that the action taken by the Applicant contributes to a finding that there were exception circumstances for the purpose of s. 366(2).

Merits of the application

1. The application sets out the basis for the application. Many of the matters, both of fact and law, are contested by Honeywell. I am not in a position to determine the merits of the claim under s. 365 and so make no finding in relation to this matter.

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

1. There is nothing that gives rise to fairness between the Applicant and others in a like position. This matter is not relevant.

Are there exceptional circumstances, taking into account the matters above?

1. In determining whether exceptional circumstances existed in this matter I am required to taken into account the matters listed in s.366(2). Having regard to the matters listed at s 366(2) of the Act and my findings above I am not satisfied that there are exceptional circumstances of the kind required by the statute to extend the time for filing the application.

1. The application is dismissed.

DEPUTY PRESIDENT

[1] Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

Printed by authority of the Commonwealth Government Printer

<PR782617>