Ms Suzanne Siranovic v Dreamstreet Lending
[2022] FWC 295
•17 FEBRUARY 2022
| [2022] FWC 295 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Suzanne Siranovic
v
Dreamstreet Lending
(C2021/6954)
| DEPUTY PRESIDENT CROSS | SYDNEY, 17 FEBRUARY 2022 |
General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.
Ms Suzanne Siranovic (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from her employment with Dreamstreet Lending Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the ground that the Application is out of time.
Directions were issued for the filing of statements and submissions. The following materials were filed by the parties:
(a)For the Applicant
a.The Applicant’s Statement of 6 January 2022;
b.The Statement of David Petrevski of 6 January 2022;
c.The Statement of Carolyn Siranovic of 20 January 2022;
d.The Statement of Marilyn Siranovic of 25 January 2022; and
e.The Applicant’s Reply Statement of 24 January 2022.
(b)For the Respondent
a.The Statement of Roland Hamilton Girvan dated 21 January 2022; and
b.The Respondent’s Outline of Submissions in Opposition to Application for Extension of Time
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the 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.
The Applicant submits that she was notified of the dismissal, and it took effect, on 18 September 2021. The Respondent agreed that the dismissal took effect on 18 September 2021. The Applicant had tendered her handwritten resignation on 17 September 2021, and while the Respondent accepted that resignation at 8.21pm on that date, it was not until Saturday 18 September 2021 that it was made clear by the Respondent that the resignation was accepted with immediate effect and the Applicant would not be required to work out her two weeks notice.
Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact.[1] Where the employer’s communication is clear and there is no evidence of a contrary intention, payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[2]
I find that it was clearly communicated to the Applicant by text message on 18 September 2021, that the Applicant would not be required to serve the two week notice period. I find that the dismissal took effect on Saturday 18 September 2021.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[3]
As the dismissal took effect on Saturday 18 September 2021, the final day of the 21 day period was therefore Saturday 9 October 2021, and ended at midnight on that day. If the final day of the 21 day period falls on a weekend the timeframe will be extended until the next business day.[4] The next business day was Monday 11 October 2021.
The Application was made on Tuesday 12 October 2021. The Application was therefore made one day late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]
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 Monday 11 October 2021. The delay is the period commencing immediately after that time until filing on 12 October 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
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.[7]
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.[8]
Submissions and evidence
The materials filed by the Applicant extended significantly past matters relating to the delay in filing the Application, and outlined her concerns arising from working with the Respondent. In particular the Statements of Mr Petrevski and Ms Marilyn Siranovic did not address any issues of delay.
Additionally, this is a matter where the circumstances arising prior to the delay are relevant. In her first statement, the Applicant asserted some mental and/or physical incapacity to pursue her claim within the 21 days after her dismissal as being a reason for her late filing. In particular she stated:
“I was terribly afraid to leave or seek help sooner because I felt lost during the pandemic and lockdowns and I felt trapped. I wouldn’t leave my house & even my bedroom, I closed all the doors and just shutdown. I had nowhere to go I tried and tried to get help, my Manager’s, the Operations Manager, fellow work colleagues current and past, I just got ignored and then became nothing. I was intimidated enough to go like into hiding, being so hurt, demoralized & emotionally distraught I hid away, the only way I could get away from the pain and mental distress.”
That self-description of the Applicant’s mental state stood in contrast to other evidence of the Applicant. In particular, in her statement of 24 January 2022, the Applicant described her efforts to obtain advice and agitate her claim within the 21 day period as follows:
“I started to make phone calls to the Vic Law Institute and researching the help available on the internet together with my friends. They suggested I should make a claim with the Fair Work Commission. A few days later 30th September 2021 I rang the Fair Work Commission and spoke with Rachelle who told me there was an application online I could complete and submit. She took me through a few of the different sections and pointed out the claim I should make. She recommended I take a few days and write my notes on the background of the bullying then get online and submit. I followed her instruction completely; it took me a few days to get the complaint down in writing I then spent two weeks getting a hold of my work colleagues to commence witness statements. I then got on the Fair Work Commission and completed an application on 8th October 2021 which I submitted on 15th October 2021 once I had the money for the application fee.”
The evidence of the Applicant’s sister, Carolyn Siranovic, was somewhat contradictory in that it had Carolyn Siranovic undertaking the initial research. That evidence was as follows:
“I commenced researching and found that the Law Institute of Victoria based in William Street Melbourne seemed to offer free legal advice and had information on workplace bullying. This took a couple of weeks. I telephoned them and asked lots of questions and they gave some basic strategys and advice and I visited my sister on 29th September 2021 to go through it all with her. The first thing was to get online now and look for contact information on the Fair Work Commission. According to the advice I obtained this is where Suzanne needed to make the call herself. I stayed with her over the next few days supporting her and caring for her.”
Nonetheless, it is abundantly clear that the Applicant was not incapacitated in the 21 days after her dismissal. She undertook numerous appropriate steps to seek advice and advance her claim.
Findings
Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs against the Applicant in this matter. The Applicant was not suffering from any impairment that precluded her obtaining advice and advancing her claim. To the contrary, the Applicant provided evidence that at least she was significantly active in pursuing her claim shortly after her dismissal.
I note that that the Application was only one day late, however such a small length of time does not obviate the need for acceptable explanation of the delay, and that numerous decisions of the Commission have refused to allow a one day extension in time to file an application.[9]
What action was taken by the Applicant to dispute the dismissal?
The Applicant did not take any actions to dispute her dismissal prior to making the Application. This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.
In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal, which was in fact put in place by the Applicant tendering a handwritten letter of resignation. I consider this factor weighs slightly in the Respondent’s favour.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.
What are the merits of the Application?
Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. 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 s.366(2)(d).”[10]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the 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 each of the matters referred to above.
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.[11] 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.[12]
It is clear that the factors that have been accorded any weight in this matter are the absence of an acceptable reason for the delay and the failure by the Applicant to dispute the dismissal. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[13] In this matter, however, the Applicant undertook numerous appropriate steps to seek advice and advance her claim within the 21 day period.
Even had it been apparent, evidence of hardship and misfortune would not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[14] That is certainly not the case in this matter, and the Applicant was not impeded in lodging the Application.
Having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Ms S Siranovic, on her own behalf.
Mr G Katz, for the Respondent.
Hearing details:
2022.
January 28.
Sydney (via videoconference)
[1] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[2] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[3] 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.
[4] Acts Interpretation Act 1901 (Cth) s.36(2). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A). See also Hemi v BMD Constructions Pty Ltd[2013] FWC 3593 (unreported, Richards SDP, 12 June 2013); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock[2015] FWCFB 103 (unreported, O’Callaghan SDP, Gooley DP, Williams C, 9 January 2015); Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877 (unreported, Harrison SDP, Lawrence DP, Cambridge C, 20 March 2015).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[9] See for example. Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd [2021] FWC 530.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
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