Rachel Young v Endeavour Group Limited

[2021] FWC 6376

[2021] FWC 6376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Young
v
Endeavour Group Limited
(U2021/8971)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 NOVEMBER 2021

Application for unfair dismissal remedy – application filed 28 days out of time –circumstances not exceptional – extension not granted – application dismissed.

[1] On 7 October 2021, Ms Rachel Young (the Applicant) made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), the Applicant recorded that the unfair dismissal application was not made within 21 calendar days of her dismissal taking effect. Section 394(2) of 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) of the Act. In her application, the Applicant stated that her dismissal took effect on 24 May 2021.

[3] As it appeared that the Applicant made her unfair dismissal application outside the 21-day timeframe, the Commission’s file was allocated to me for the purposes of determining whether an extension of time for the making of the Applicant’s application should be granted. I issued Directions on 15 October 2021 requiring the Applicant to submit material in support of an extension of time application by no later than 3pm on 27 October 2021. Endeavour Group Ltd (the Respondent) was provided an opportunity to file any material in reply.

[4] Having not received any submissions from the Applicant I caused correspondence to be sent to her and in response, the Applicant advised:

a) “I have nothing to file. I outlined my situation in my application. At no point have I received any written communication from Endeavour advising me of my termination, nor the reason behind it.” 1

b) “I was not made aware of my termination. My termination was effective 24 May, 2021. I received no communication in regards to this. The first I was made aware of it was in September when a colleague tried to roster me on for a shift but couldn’t find me in the system.” 2

c) “Having not been in this position before I’m not sure what other information I should be submitting - as I believe, in this instance, you are after information pertaining to the delay in submission. I have disputed the termination and have been re-employed, but have not received any explanation as to the reason behind my termination nor any offer of compensation for loss of income, suffering and hardship or the stress and anxiety caused.” 3

[5] The Respondent filed a Form F4 in reply on 5 November 2021. The Respondent objected to the application on the basis that the application was lodged out of time and on the basis that Ms Young was not dismissed within the meaning of s 386 of the Act.

[6] Based on this correspondence from the parties it appeared that it would be necessary to establish whether the Applicant was dismissed and if so, when that dismissal took effect. Further, it also appeared that the Commission might be required to determine the date upon which the termination (if any) was communicated to the Applicant.

[7] I conducted a Determinative Conference on 10 November 2021. Evidence was received from the Applicant, while Mr Mark Lew (Senior Employee Relations Advisor for the Respondent) and Ms Claire Sneddon (Senior People Partner VIC/TAS for BWS, a division of the Respondent) gave evidence for the Respondent.

Background – Dismissal and Dismissal Date

[8] At the material times, the Applicant was employed by the Respondent on a casual basis. The evidence established that the practice of the Respondent is that if a casual employee has not worked a shift for a certain period of time, he or she is removed from the Respondent’s Kronos workforce management system and thereafter it is not possible for them to be assigned to any future rosters. It is not in dispute that this occurred in relation to the Applicant.

[9] In terms of whether she was dismissed and the date of the dismissal, the Applicant says she received a telephone call from Mr Ryan Trewen, the BWS store manager in Mooroopna, on 14 August 2021 in which he enquired as to whether she was “still on the BWS books.” It became apparent that the Applicant was not. The Applicant says her resulting series of enquiries culminated in her receiving the advice during the first week or so of September 2021, from an individual in the Respondent’s department which is now called People Advisory,that she had been terminated. Ms Sneddon for the Respondent gave a different account. She says the Applicant telephoned her on 19 August 2021 and told her that she had been terminated. The Applicant says she does not recall having this discussion but Ms Sneddon produced an email dated 19 August 2021 that she sent to the applicable Area Manager, Ms Anne Ahern. The email read:

“I spoke to Rachel and she is very upset about the situation. I’ve told her Jacky would be in contact with her ASAP to work through the process to getting her back as a BWS TM. She has confirmed she’d like to work at BWS Mooroopna, so can we please process this ASAP. In the background, there definitely needs to be a conversation with Jacky about the correct process to follow to ensure nothing like this happens again.”

[10] I reject the contention in the Form F4 dated 5 November 2021 that the Applicant was not dismissed. However, a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 As to when the dismissal was communicated to the Applicant is disputed. The Applicant says she was advised of her termination during “the first week or so” of September 2021. This is the scenario most favourable to her in terms of her application for an extension of time but if this was the case, her unfair dismissal application, filed on 7 October 2021, would still have been filed outside of the 21-day time period. This is because the Applicant would have had to have been advised that she had been dismissed no earlier than on or after 17 September 2021 in order for her unfair dismissal application to have been received “within 21 days after the dismissal took effect”, as required by s.394(2) of the Act. In any event, I prefer the evidence of Ms Sneddon because it is supported by a corroborating, contemporaneous email. I am satisfied the Applicant was aware she had been dismissed at a time after 14 August 2021 and by at least 19 August 2021. Having regard to that date, the Applicant’s unfair dismissal application filed on 7 October 2021 was 28 days late.

Legislation

[11] 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”. 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. 5 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.6

[12] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[13] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Applicant’s application for an extension of time.

Reason for the delay

[14] The Act does not specify what reason for delay might tell in favour of granting an extension however 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. 7

[15] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 9 September 2021. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the 28-day delay, or any part of that delay, beyond the 21-day period. 8

[16] As outlined above, I am satisfied the Applicant was aware she had been dismissed by at least 19 August 2021. The Applicant’s evidence was that having spoken with Mr Trewen on 14 August 2021, she spent the next period of time seeking to be ‘reinstated’ to the Kronos workforce management system. This involved conversations with various colleagues and the department now called People Advisory on or about 23 September 2021. These led her to believe she had been terminated with effect from 24 May 2021. The Applicant says that a colleague she spoke with on 14 September 2021 had told her she should speak with the Commission. She says she did not do this immediately because she was considering many things at the time and had never been in such a scenario before. It was only on 23 September 2021 that the Applicant says she spoke with the Commission. She says she received some advice regarding the process for making an unfair dismissal application. The Applicant is a single parent and from Friday 24 September 2021 until Sunday 3 September 2021, had custody of her two young children which she says was demanding of her time and required her significant attention. The Applicant says she attempted to file an unfair dismissal application on Monday 4 September 2021 but used the incorrect form and by the time she remedied this in consultation with the Commission and filed her application using the correct form, it was Thursday 7 October 2021.

[17] I accept the Applicant may have experienced some stress and a negative reaction as a result of learning of her dismissal, but this is not of itself unusual. Stress and anxiety from a dismissal are not unusual and nor are shock and a degree of trauma uncommon reactions. I also accept the Applicant may not have had prior experience with unfair dismissal laws and processes and dealing with the Commission but it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed 9 and unfamiliarity is not exceptional. Finally, I do not wish to diminish the demands placed on the Applicant’s time and attention while her children were in her custody from 24 September 2021 until 3 October 2021 but again, this dynamic is not exceptional. Further, I am not persuaded that the Applicant has provided reasonable explanation for why it took her another 11 days to first attempt to lodge an application, albeit an incorrect one, after having consulted with the Commission on 23 September 2021.

[18] Having regard to the evidence before me, I am not persuaded there was an acceptable or reasonable explanation for the period of delay from 10 September 2021 to 7 October 2021. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[19] I am satisfied the Applicant became aware of the dismissal by at least 19 August 2021. She therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[20] The Applicant submits that having become aware of her dismissal, she took steps to try and find out why she had been removed from the Respondent’s Kronos workforce management system and tried to get restored. I am satisfied the Applicant engaged with People Advisory and Ms Sneddon and find she took at least this action to dispute the dismissal before making enquiries with the Commission. This factor weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[23] The Applicant asserts her dismissal was unfair because she was terminated for a reason or reasons not within her knowledge. She also claims it is unfair that her employment was terminated with immediate effect on the same day as the termination of a colleague (on 24 May 2021) for whom she had acted as support person in a meeting three days prior. The Respondent disputes this latter allegation, asserting that 24 May 2021 was simply the Applicant’s last shift of work and that her termination was processed on 11 August 2021 when she was removed from the Kronos workforce management system. Further, it suggests the removal of the Applicant from Kronos reflected the standard operating procedure at that time in relation to an employee who had not been performing actual work.

[24] Additionally, I observe from an email sent to the Commission by the Applicant on 7 October 2021, that the Applicant’s pattern of work as a casual employee did not appear to be on a regular and systematic basis

[25] Having reviewed the material and heard from the parties, I consider the merits of the Applicant’s application turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Based on the limited material before me, I am not able to make any firm assessment of the merits. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.

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

[26] 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 has brought to my attention any relevant matter concerning this particular consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[27] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 10

[28] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms R Young on her own behalf

Mr M Lew for Endeavour Group Limited.

Hearing details:

2021.

Melbourne (via Microsoft Teams):

November 10.

Printed by authority of the Commonwealth Government Printer

<PR735902>

 1   Email from Applicant to the Commission at 5.34pm on 27 October 2021, DCB at 11.

 2   Email from Applicant to the Commission at 11.34am on 28 October 2021, DCB at 9-10.

 3   Email from Applicant to the Commission at 4.24pm on 28 October 2021, DCB at 8-9.

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24].

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

 6   Ibid.

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 9   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 10   [2018] FWCFB 901.