Rayanne Alameddine v Commonwealth Bank Australia
[2024] FWC 653
•13 MARCH 2024
| [2024] FWC 653 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rayanne Alameddine
v
Commonwealth Bank Australia
(U2024/718)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 13 MARCH 2024 |
Application for unfair dismissal remedy – application filed out of time - whether exceptional circumstances exist – representative error - extension of time granted
Ms. Rayanne Alameddine (Applicant) has filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The Applicant’s former employer and respondent to the application was the Commonwealth Bank of Australia (Respondent). The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act.
Before considering the merits of the application for an unfair dismissal remedy, the Fair Work Commission (Commission) must be satisfied that the application was not made out of time[1] or alternatively, extend the 21-day time limit provided for in section 394(2)(a). It was not in issue between the parties that the application was made outside the 21-day time limit. I am satisfied that it was made outside that time limit. The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. This decision deals with the question of whether or not the time for the making of the application should be extended.
Background
The Applicant commenced her employment with the Respondent in June 2012. She worked on a part-time basis as a customer service representative at a branch of the Respondent’s business in Sydney.
On 13 October 2023, the Applicant was provided with a letter from the Respondent advising that an investigation had been conducted into potential risks that the Applicant’s ongoing employment posed for the Respondent. The letter advised that the Respondent was considering terminating the Applicant’s employment and inviting the Applicant to show cause why her employment should not be terminated. The Applicant was suspended on full pay pending a final decision. The Applicant responded to the letter by email on 23 October 2023.
On 14 November 2023, the Respondent sent the Applicant a letter saying that the Applicant’s employment was terminated effective immediately. The Applicant was paid 4 weeks’ pay in lieu of notice and her employment came to an end on that day.
The present application was filed on 22 January 2024. Directions were made for the filing of evidence and submissions. The evidence was brief and on the basis that the deponents in support of the Applicant’s case were not required for cross-examination, I decided that the matter could be dealt with on the papers.
Legislation
Section 394(3) of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.
I deal with each of these matters below.
(a) Reason for the delay
The Applicant’s employment was terminated with effect from 14 November 2023. The 21-day time period for filing an unfair dismissal application therefore expired at midnight on 5 December 2023. The application was filed 48 days out of time. The delay is the period from the 5 December 2023 until 22 January 2024 when the application was filed.
The Applicant said that the delay was attributable to representative error on the part of her solicitors. Two affidavits were filed by the Applicant’s legal representatives to support this contention. The first was from Ms. Rayanne Hussain, a law clerk from the law firm Karnib Saddik. Ms. Hussain attested, on 22 January 2024, as follows:
2. As part of my day-to-day duties I am required to attend to task and ensure they are completed on time.
3. On 23 November I attended a conference with my principal solicitor Abdul Saddik and Rayanne Alamaddine, the client.
4. As part of my tasks I was responsible for filing relevant material with Fair Work Australia in relation to Rayanne Alamaddine’s unfair dismissal case.
5. As per my employment, I am required to set deadlines for my tasks and send a copy to my principal solicitor.
6. Due to an error with my task list on my computer, I had missed the deadline and the task was not updated.
7. Due to the above reason, I did not file the application within the 21-day period. There was no misadventure on the part of the client.
The second affidavit was from Mr. Abdul Saddik, the solicitor with carriage of the matter for the Applicant. On 26 February 2024, Mr Saddik attested as follows (reproduced as it appears):
2. On 23 November 2023, my firm was instructed by Ms Rayanne Alameddine to file an unfair dismissal claim in relation to the termination of her employment with the Commonwealth Bank of Australia on 14 November 2023.
3. I tasked Ms Rayanne Hussain of my office to use all relevant documents and material provided by the Applicant to file her unfair dismissal claim.
4. At no fault of the Applicant, Ms Hussain of my office failed to lodge an unfair dismissal claim due to an oversight in her task management.
5. At all relevant times, the Applicant has provided her instructions to our office within the qualified timeframe.
6. I confirm that Ms Alameddine provided her instructions to my office within the 21-day period with sufficient time to file the unfair dismissal claim. Ms. Alameddine excepted the usual and ordinary process to be followed by her instructed solicitors to file her unfair dismissal claim in time.
The Applicant also provided a statement in which she said that Karnib Saddik Law Firm was closed during the first two weeks of January 2024, and she was unable to contact her legal representatives during this period.
In submissions on behalf of the Applicant dated 16 February 2024, the Applicant’s representative said that the Commission should accept that the Applicant did not contribute to the delay. They said that the application was not filed on time because of an administrative error on the part of the Applicant’s representative. They said that the Applicant provided instructions to lodge the unfair dismissal claim following a conference with Mr Abdul Saddik and Miss Rayanne Hussain of Karnib Saddik Law Firm on 23 November 2023. They submitted that there was no error on the Applicant’s part and that the Applicant should not be prejudiced because of the delay of her representative.
By its submissions dated 23 February 2024, that is, prior to the filing of Mr. Saddik’s affidavit, the Respondent submitted that:
(i)The only action taken by the Applicant within the 21-day timeframe was to engage Karnib Saddik Law Firm
(ii)There is no evidence that the Applicant gave clear instructions to her solicitors at this time to file an unfair dismissal claim against the Respondent.
(iii)In submissions (and noting that there is no evidence that underpins this submission), the Applicant’s solicitor says that the Applicant provided instructions to lodge the unfair dismissal claim ‘following’ the conference referred to in Ms Hussain’s affidavit, but does not state when those instructions were given.
Following the filing of Mr. Saddik’s affidavit, the Respondent said that the Commission should accord little weight to the affidavit because:
(i)The affidavit contained evidence that could and should properly have been included in the materials filed on 16 and 19 February 2024, and in circumstances where evidence by a practitioner at Mr Saddik’s firm had already been filed.
(ii)The evidence contained in Mr Saddik’s affidavit is not consistent with previous evidence filed on behalf of the Applicant in this matter, which discloses no evidence of instructions to file any unfair dismissal claim within the 21-day timeframe. This includes:
- the submissions filed on behalf of the Applicant at paragraph 5, which states that “The client/employee provided instructions to lodge the unfair dismissal claim following a conference with Mr Abdul Saddik and Miss Rayanne Hussain of Karnib Saddik Law Firm on 23 November 2023” (emphasis added);
- the Applicant’s evidence which contains no reference to the giving of instructions to file an unfair dismissal claim; and
- the affidavit of Ms. Hussain which contains no reference to instructions being given on 23 November 2023.
Further, the Respondent submitted that in the evidence about the Applicant’s communication with the Respondent in December 2023 there was no reference to her having instructed her solicitors to file an unfair dismissal application, that the evidence of Mr. Saddik that he was instructed to file an application on 23 November 2023 was a “bare assertion” that lacked detail or corroboration and that other parts of Mr. Saddik’s evidence were so vague that they should be struck from the affidavit or given no weight by the Commission.
The Respondent also submitted that the evidence about the closure of the law firm in early January was largely irrelevant because this was outside the 21-day time period and that to the extent it was relevant, it explained part only of the delay given the Applicant’s evidence that she contacted her solicitors on 20 January 2023. They said that delays attributable to the Christmas period were not exceptional given that Christmas is not an unforeseen event.
Consideration – Representative Error
In cases where it is said that representative error was a reason for the delay in filing the application it is appropriate to look at all the circumstances, including the role of the person seeking to rely on the error. In Clark v. Ringwood Private Hospital[2] it was said that the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay.[3] It is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[4] The Commission has also drawn a distinction between circumstances where an applicant has left the matter with their representative and taken no steps as to the status of their claim and the situation where clear instructions to file are given but not met through no fault of the applicant.[5]
I am satisfied on the evidence that the Applicant attended a conference with her solicitors Karnib Saddik on 23 November 2023 some nine days after the termination of her employment with the Respondent had taken effect for the purpose of discussing the circumstances of her dismissal. This was a reasonable and timely step by the Applicant. Mr Saddik attested to the fact that his firm was instructed by the Applicant on that date to file unfair dismissal proceedings against the Respondent. Evidence from a legal practitioner to that effect, undiminished by cross-examination, would ordinarily be sufficient to conclude that such instructions had been given on that date. The Respondent urged that the Commission should not draw that conclusion having regard to the content and timing of the balance of the evidence and previous submissions. They said the evidence from Mr. Saddik came belatedly after the Applicant and Ms. Hussain had already provided evidence about the circumstances of the Applicant’s engagement with her solicitors. There was no evidence from the Applicant or Ms Hussain, the other attendees at the conference, of instructions being given on that date. The Respondent said there was no other form of corroboration to support the assertion that the instructions had been given. Further, the submissions that had been filed before the affidavit was sworn made reference to instructions being given following the conference on 23 November without specifying when those instructions were given.
While I accept that Mr. Saddik’s evidence would have carried more weight had it been supported by other testimony and documentation, it cannot simply be disregarded because of the absence of other supporting material. The only aspect of the material filed by the Applicant that stands in apparent contradiction to Mr. Saddik’s evidence was the statement in the written submissions that the instructions were given following the conference on 23 November. The two propositions are not irreconcilable. It is conceivable that the instructions did follow the conference but were also given on 23 November 2023 after the Applicant had considered what had been discussed at the conference. I propose to accept the evidence of Mr. Saddik that the Applicant gave instructions to his firm on 23 November 2023 to file an unfair dismissal application against the Respondent.
I also accept the Applicant’s evidence that it was an error on the part of her legal representatives that resulted in the application not being filed within the required time frame. In my view the Applicant had provided her lawyers with sufficiently clear instructions and any necessary documentation to allow them to file the application within time. In cases where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[6] For the reasons outlined in the evidence of Mr. Saddik and Ms. Hussain, the Applicant’s representatives failed to carry out those instructions. This was a failure on the part of the legal representatives. The Applicant did not cause or contribute to the error that resulted in the application not being filed within time.
The Respondent argued that representative error did not constitute an acceptable reason for the delay having regard to the conduct of the Applicant. In this respect, the Respondent said that the Applicant’s evidence that she was unable to contact her lawyers in the first two weeks of January 2024 because of an office closure for the holiday period was largely irrelevant because it occurred after the expiration of the 21-day time period. I do not regard the evidence as irrelevant. The delay that the Applicant is accounting for is the period after the expiration of the 21-day period. The closure of the legal representatives’ office in that 2-week period after the Applicant had given instructions to file an application, provides a reasonable explanation as to why the Applicant was unable to inquire as to the status of her application in that period.
The Respondent also argued that to the extent the office closure was relevant it was not exceptional given that Christmas is not an unforeseen event. Reliance was placed on the decision in Smith v. KJM Contractors Pty Ltd[7](Smith). The facts in Smith are distinguishable. In that case the Applicant was dismissed on 17 December and did not attempt to make contact with a law firm until 24 December. He ultimately lodged his application in January by which time the time period for lodgement had passed. The Commission there said that it would have been known to the Applicant that the Christmas period would have presented difficulties in obtaining legal assistance with an application but that the Act made no distinction for that period in terms of the 14-day time limit that then applied. In this case, the Christmas period fell within the period after the application had to be filed, not during the limitation period itself. The Applicant had by that time sought advice in a timely fashion and instructed her solicitors to file an application. She could reasonably have assumed that her instructions had been acted upon by the time the holiday period commenced.
The Respondent criticised the Applicant’s inaction in the period after the deadline for lodgement. They pointed to the evidence of the Applicant that she only contacted her legal representatives on 20 January 2024 to discuss the status of her claim. It is likely that the legal representatives’ error was ongoing at that point and it was the Applicant’s inquiry which prompted them to ultimately file the application two days later. In any case I do not consider that in circumstances where the Applicant had given instructions to file an application, the fact that the Applicant did not make an inquiry in the preceding week or prior to the Christmas break should change the ultimate conclusion in relation to the reason for the delay. In Qantas Ground Services Pty Ltd v Rogers a Full Bench of the Commission said:
“..it was not necessary on the authorities for (the Applicant) to demonstrate that he was “blameless” for the delay beyond establishing the fact that he gave appropriate instructions to a legal practitioner in a timely fashion. This point was made clear in the Full Bench decision in Robinson v. Interstate Transport Pty Ltd (in the context of the very similar extension of time provision in s.366 of the FW Act):
[30]….To suggest the failure of Mr. Robinson to take any action in relation to the lodgement of his application, after instructing his legal representatives to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr. Tayler to lodge his application….”[8]
The Respondent submitted that representative error did not constitute a credible or acceptable explanation or provide an acceptable explanation for the whole of the period of delay. It is well settled that it is not necessary for there to be an acceptable explanation for the whole period of the delay in order for exceptional circumstances to be established.[9] In this case I am satisfied that the delay is attributable to representative error on the part of the Applicant’s legal representative. This weighs in favour of a conclusion that exceptional circumstances exist.
(b) Whether the person first became aware of the dismissal after it had taken effect
The Applicant was made aware of the dismissal when it took effect on 14 November 2023. This is a neutral consideration.
(c) Any action taken by the person to dispute the dismissal
The Applicant attended the offices of her solicitors on 23 November 2023 to obtain advice about her dismissal. She also contacted an employee of the Respondent on 21 December 2023 to say that she was unwell as a result of her termination. The Respondent was not on notice that the dismissal was disputed until they were served with the application in January 2024. This lack of notice was in large part attributable to representative error rather than inaction on the part of the Applicant. I regard it as a neutral consideration.
(d) Prejudice to the employer (including prejudice caused by the delay)
The Respondent accepted that there was no prejudice to them in the granting of an extension, but that absence of prejudice is not a sufficient basis to grant an extension. They said it was a neutral consideration here. I agree.
(e) The merits of the application
I am not required to embark on a detailed consideration of the substantive case[10] or to resolve all contested facts going to the merits for the purpose of dealing with this application. That is a matter for a full hearing.
The material going to the merits of the application was limited. The Applicant said she was a long-standing employee with a very good employment record. She said that there was no adequate explanation as to the reasons for her initial suspension or the investigation. She said she was responding to a suspension and a request to show cause why her employment should not be terminated in the absence of full information about the matters that ultimately led to her termination.
The correspondence between the parties says that an investigation was conducted by the Respondent, that the result was that the Applicant was suspended on full pay and that the termination of her employment was being considered because the Respondent had come to a view that it could no longer have the level of trust and confidence necessary to continue with the employment. The nature of the investigation or even the allegations that had led to the loss of trust and confidence is not apparent on the face of the correspondence. The Applicant sought clarification in writing. She was told that the Respondent had provided “all information it is permitted to in line with its legal obligations.” There was no other evidence as to what if anything the Applicant was told other than the correspondence. The Applicant responded to the request to “show cause” on the basis of the information she had. Her letter of termination sheds no further light on the reasons for the termination. Nor does the employer response form filed in response to the application.
The Respondent asserted that the termination was not harsh, unjust or unreasonable and that the Applicant was provided with procedural fairness throughout the process. They elected not to put on any evidence about this or other matters. They submitted that the merits should be treated as a neutral consideration in the overall assessment.
On the presently available material it is not possible to come to even a preliminary view as to whether there was a valid reason relating to capacity or conduct for the termination. There is simply no detail as to the reason or reasons. “Valid reason” is but one of a number of matters that must be considered in determining whether a dismissal is harsh, unjust or unreasonable. Procedural fairness in the termination process is also an important consideration. Central to that issue is whether an employee is given notice of the reason for the termination and has an opportunity to respond to any reason related to capacity or conduct.[11] It is not apparent on the face of the material that the Applicant was ever provided with the details of the reason. In the absence of those details there could be no meaningful opportunity to respond. For that reason, I consider that the merits of the application weigh in the Applicant’s favour.
(f) fairness as between the person and other persons in a similar position
The Applicant said that her sister had also been terminated and provided with the same dismissal letter which was generic in nature and without specific information about the reasons for the Respondent’s distrust in her performance. In the absence of further information on this issue I am unable to determine whether fairness issues arise as between the Applicant and her sister or other persons. I regard this as a neutral factor.
Conclusion
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.[12] 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. [13]
Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am satisfied that there are exceptional circumstances to warrant an extension of time.
The Applicant’s application for an extension of time pursuant to s.394(2)(b) is granted. An order giving effect to these reasons will be issued separately.
DEPUTY PRESIDENT
[1] Section 396(a).
[2] (1997) 74 IR 413.
[3] Ibid at 419.
[4] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[5] Clark op cit at 419-420.
[6] See, eg, Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[7] (2010) 201 IR 356.
[8] At [17].
[9] Stogiannidis v. Victorian Frozen Foods Distributors Pty Lt t/as Richmond Oysters[2018] FWCFB 901 and Qantas op cit at [18].
[10] Kyvelos v Champion Socks Pty Ltd Print T2421.
[11] Section 387(b) and (c).
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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