Ms Samar Mujalli v Powercor Australia Ltd T/A Beon Energy Solutions

[2020] FWC 2966

[2020] FWC 2966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Samar Mujalli
v
Powercor Australia Ltd T/A Beon Energy Solutions
(U2020/6215)

COMMISSIONER MCKINNON MELBOURNE, 5 JUNE 2020

Application for an unfair dismissal remedy – effective date of dismissal – extension of time refused.

[1] Samar Mujalli worked for Powercor Australia Ltd t/as Beon Energy Solutions for approximately 13 months, most recently in the position of Project Controller. Her employment ceased on 20 March 2020, one month after Ms Mujalli resigned from her employment and ceased work in circumstances that she asserts amount to constructive dismissal.

[2] On 5 May 2020, Ms Mujalli applied for an unfair dismissal remedy. There is a statutory time limit during which applications of this type must be made. The time limit is 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows. 1 In the present case, there is no dispute that the final day for lodging her application was 10 April 2020 and that the application was 25 days late.

[3] The question is whether an extension of time should be granted.

Extension of time

[4] Section 394(3) of the Act sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  any action taken by the person to dispute the dismissal;

•  prejudice to the employer (including prejudice caused by the delay);

•  the merits of the application; and

•  fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. 2 The circumstances “need not be unique, or unprecedented, or very rare”.3

Relevant factors

[6] Reason for delay: On 20 February 2020, Ms Mujalli resigned from her employment in the context of a bullying complaint against her manager. She ceased work on that day although her notice of termination did not conclude until 20 March 2020. Following her resignation, an investigation into the complaint was undertaken.

[7] Ms Mujalli became aware that some of her complaints had been substantiated on 1 April 2020. She immediately sought reinstatement. There were then discussions between the parties until 20 April 2020, when the company formally advised that it was not prepared to re-employ Ms Mujalli. At the time, as a result of the COVID-19 pandemic, a recruitment freeze was in place.

[8] Over the period from 20 April 2020 to 5 May 2020, the Applicant was dealing with a spousal separation court order which gave her one week to vacate her home. She moved house on 28 April 2020. At the time she says she was under a lot of stress in terms of the response from the company not to reinstate her.

[9] Once she settled into her new home, she began looking into an unfair dismissal application. She searched the internet for a lawyer and had an over the phone consultation with a legal adviser in early May 2020. She contacted the Fair Work Ombudsman for advice on 5 May 2020 and it sent her an email on the unfair dismissal process that day. She then filed her application in the Commission. Ms Mujalli says she did not know about the 21 day time limit until she called the Ombudsman. Ms Mujalli says she held off on making an application to the Commission pending the outcome of the bullying investigation and in the hope that if her complaints were substantiated, she would be reinstated. She says she then held off again pending the company’s reply to her request for reinstatement.

[10] After the company declined her request for reinstatement on 20 April 2020, it took more than two additional weeks for Ms Mujalli to file her claim. This followed a period of one month during which she was not required to work after submitting her resignation on 20 February 2020. At any time during this period, it was available to Ms Mujalli to investigate her options in relation to unfair dismissal in anticipation of a future claim if matters could not be resolved by sensible discussion.

[11] On balance, Ms Mujalli’s dealings with the company in relation to the bullying complaint weight in favour of a grant of additional time to make the application. The delay in seeking advice or information about unfair dismissal until early May 2020 and the delay in bringing an application promptly after discussions with the company ended weigh against it.

[12] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration.

[13] Any action taken by the person to dispute the dismissal: I have outlined above the steps taken by Ms Mujalli to dispute the dismissal, in the context of dealing with her bullying complaint and her request for reinstatement. This weighs both against (in the period prior to 20 March 2020) and in favour (in the period from 20 March to 20 April 2020) of a grant of additional time.

[14] Prejudice to the employer (including prejudice caused by the delay): Minor prejudice will accrue to Powercor Australia if the application proceeds because, like most Australian businesses, it is currently affected by the COVID-19 pandemic and in its particular case it has implemented a recruitment freeze. This weighs marginally against the grant of additional time.

[15] Merits of the application: The merits of the application have not yet been heard or considered in any substantive way. Ms Mujalli says there was a lack of action taken by Powercor Australia to support her in the context of bullying by her manager. She says she was not believed at work and was repeatedly targeted. Some of her bullying complaints were substantiated. I do not have detailed evidence of the nature of the bullying complaint, those parts of the complaint that were upheld or their level of seriousness. Powercor Australia says it took a number of steps to deal with Ms Mujalli’s concerns about bullying over many months and that Ms Mujalli only made a formal bullying complaint on the day she resigned, which it immediately investigated. The case appears at least arguable for both parties. The merits are a neutral consideration.

[16] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant consideration.

Conclusion

[17] Ms Mujalli took steps to challenge the dismissal by seeking reinstatement once the investigation of her complaint was finalised, but for whatever reason she only began looking into unfair dismissal in late April and early May 2020 after the statutory timeframe had expired. No doubt she was distracted by other matters including a spousal separation, which once finalised, appears to have been executed swiftly but I infer had been a developing situation for some time. She was also experiencing a level of stress related to her difficulties at work, itself a sadly common experience where workplace conflict is involved. It is unfortunate that the application was not made before the bullying investigation was finalised as it is regrettable that Ms Mujalli did not seek advice about her position either before tendering her resignation on 20 February 2020 or shortly after that time to preserve her position.

[18] On balance, I am not satisfied that the various factors weigh in favour of a grant of additional time or that there are exceptional circumstances such that an extension can or should be granted.

[19] The application is dismissed.

COMMISSIONER

Appearances:

S Mujalli on her own behalf.

L North for the respondent.

Hearing details:

2020.
Melbourne (by telephone):
June 5.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 3   Ibid.