Raynne Rasha v Client Collective
[2023] FWC 3341
•13 DECEMBER 2023
| [2023] FWC 3341 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Raynne Rasha
v
Client Collective
(U2023/9464)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 13 DECEMBER 2023 |
Application for unfair dismissal remedy – Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Ms. Raynne Rasha (Applicant) has filed an application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she had been unfairly dismissed from her employment with Dailou Pty Ltd trading as Client Collective (Respondent).
Section 394(2) of the FW 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 Respondent objected to the application on the ground that the application is out of time (the jurisdictional objection).
Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a).
In accordance with directions issued by the Commission, the parties filed written submissions, witness statements and documentary evidence in support of their respective positions. A video conference to determine the jurisdictional objection was held on 29 November 2023.
When did the dismissal take effect?
The originating application filed by the Applicant provided that the dismissal took effect on 13 June 2023. On that date, email correspondence was sent by the Respondent terminating the Applicant’s employment. The email included a letter of termination dated 14 June 2023 headed “Termination of Casual Employment”. The letter said that the termination of the Applicant’s employment was to take immediate effect. The Applicant did not see the email until 14 June 2023. I conclude that the dismissal took effect 14 June 2023. This is the date on which the letter provided the dismissal was to take effect and when the Applicant became aware of the termination.
When was the application made?
The application was lodged online on 3 October 2023. It is not in dispute, and I so find, that the application was made on 3 October 2023.
Was the Application made within 21 days after the dismissal took effect?
The 21-day period prescribed by s.394(2) does not include the day on which the dismissal took effect.[1]
Since the dismissal took effect on 14 June 2023, the final day of the 21-day period was therefore 5 July 2023 and ended at midnight on that day.
Since the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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)whether the Applicant first became aware of the dismissal after it had taken effect; and
(c)any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2] 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 5 July 2023. The delay is the period commencing immediately after that time until 3 October 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The Applicant submitted that the delay was primarily attributable to the fact that she was unaware that a time limit applied. The Applicant said that she had attempted to resolve the issue politely and directly with the Respondent, and that the Respondent had delayed their response to her email communications relating to her termination. She said she did not want to escalate the matter and wanted to give the Respondent an opportunity to address the situation. The Applicant said she attempted to contact the owner of the Respondent, sought advice as to how to conduct the matter and spoke to other company staff whom she said had been treated unfairly by the Respondent.
The Applicant’s evidence as to her interaction with the Respondent following her termination was that she emailed the Respondent on 14 June and 11 August 2023. Ms. Carwardine, a Team Leader for the Respondent, replied on 27 August 2023. The email encouraged the Applicant to apply for a new position by 29 August. Further email correspondence from the Applicant followed on 28 August and 1 October 2023. Ms. Carwardine responded on 2 October 2023. There was a final exchange of emails on 3 October 2023 just prior to the lodgment of the application. The Applicant confirmed that this was the totality of her contact with the Respondent from the date of her termination until the time she lodged the application.
The Applicant also gave evidence that she had made contact with the Fair Work Ombudsman who advised her during a brief telephone conversation to try to resolve the matter directly with her former employer. The Applicant said she was not made aware during this discussion that a time limit applied to unfair dismissal applications.
The Respondent submitted that it was unlikely that the Applicant was unaware that a time limit applied. They pointed to the Applicant’s email on 14 June 2023 in which she said she had already been in touch with “Fairwork” and that the Applicant would send the termination letter to the person already handling the matter. The Respondent said that the information about the time limit was well-publicised in the Commission’s resources and the likelihood was that someone in the Applicant’s position who was disputing her termination and seeking advice would have been made aware of this fact.
I am prepared to accept the Applicant’s evidence that she was unaware of the time limit that applies to unfair dismissal applications. However, the evidence provides little else by way of explanation for the extensive period of the delay. Even though the Respondent did not respond to the Applicant’s email on 14 June 2023, the Applicant did not make contact again until 11 August 2023, well after the time for lodging an application had elapsed. There was no communication from the Applicant in the month of September 2023 and no evidence that there were any circumstances that prevented or hindered the Applicant from making an application. It appears the Applicant simply waited until she received what she regarded as a final refusal from the Respondent before deciding to make an application.
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.[4]
An applicant need not necessarily 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.[5]
Mere ignorance of the statutory time limit does not amount to an exceptional circumstance.[6] The Applicant also referred to and relied on the delayed response from the Respondent to her correspondence. However, looking at all the circumstances I do not consider that the evidence relating to the reason for the delay in filing the application weighs favourably for the Applicant.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of the dismissal on the day it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. There is nothing that weighs in the Applicant’s favour under this heading.
What action was taken by the Applicant to dispute the dismissal?
The Applicant did take steps to dispute the dismissal. The emails from the Applicant to the Respondent are referred to in paragraph [15] above. The emails make it clear that the Applicant disputes the termination. They set out the circumstances leading up to the termination and the reasons why the Applicant regarded the termination as unfair. The emails refer to the documentation that the Applicant was relying on, including what she regarded as a written commitment from the Respondent to reinstate her to her previous position after an extended period of unpaid leave. The Respondent was therefore on notice that the termination was actively challenged, even before the 21-day period had elapsed, and that the matter might ultimately end up in the Commission. However, much of the correspondence occurred after the time for the lodgement of an application. In my view, the steps that were taken are factors that weigh, to some limited degree, in the Applicant’s favour.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Applicant contended that the Respondent would not be prejudiced by an extension of time on the basis that she had given the Respondent an opportunity to reverse their decision and they had chosen not to. The Respondent submitted that they would be prejudiced. They said the business had experienced difficult times in the more recent period, had reduced staffing levels, and that dealing with an ongoing claim that was out of time by such a long period was unreasonable and detracting from resources available for other issues.
A relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. In my view there would be some limited prejudice to the Respondent here, particularly having regard to the length of time by which the application was delayed. I accept the Respondent’s evidence that circumstances for the business have been changing rapidly in the course of the year and that dealing with an application relating to a termination of employment that occurred in June 2023 and the potential outcomes from such an application will, at the very least, create some uncertainties of the kind that the statutory time limitation was designed to avoid.
What are the merits of the application?
The Applicant was originally employed as a casual employee by the Respondent in September 2021. In July 2022, she experienced a tragic family loss and serious health issues that required surgery. It was agreed with the Respondent that she would take leave without pay. That leave commenced on 6 June 2022. The letter of that date provided to the Applicant by the Respondent’s managing director, Ms Gregory-Hunt, said the leave would continue “indefinitely”.[7]
By February 2023, the Applicant had recovered and contacted the Respondent asking to return to her previous position. On March 9, the Applicant was asked by Ms. Carwardine, who was at that stage a newly appointed Team Leader who did not know the Applicant, to reapply for her position and go through a fresh recruitment process. The Applicant replied by referring to the commitment she had to be able to return to work and sought further clarification. Further correspondence followed. The Applicant was told it was hoped by the Respondent that she would be able to start again in early May. A medical certificate was requested and supplied by the Applicant. The May recommencement date passed without any further contact from the Respondent. In fact, there was no response to the Applicant’s repeated requests to recommence from 4 April until 11 June 2023, when a new proposed start date of end of June or early July was proposed by the Respondent.
On 12 June the Applicant wrote to the Respondent saying amongst other things that she was aware that staff had recently left and that her return was being purposely delayed. The email terminating the Applicant’s employment followed on 13 June 2023.
The Applicant submitted that the termination of her employment was unfair in the circumstances because she had a firm commitment from the Respondent to return to work and that this commitment was not met. Rather, the Applicant said the Respondent had obstructed her return by firstly, asserting that she had been terminated and needed to reapply and secondly, by not allowing her to return in circumstances where there were vacancies because employees had left the company and the company was hiring new employees. Evidence on this latter point was given by the Applicant and supported by a current employee of the Respondent, Ms. Westerling.
The Applicant said she had heard from other staff that existing staff had been asked to perform extra hours and shifts and new employees had started with the Respondent in May 2023 and were being asked to send job application links to friends. Ms Westerling said that she had witnessed the Respondent hire new staff since the Applicant had been asking to return to work and that she had sent ‘we’re hiring’ links at the behest of Ms. Carwardine at the time the Applicant was attempting to return to work.[8]
The Respondent submitted that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
(i)The Respondent advertised to hire new staff on 19 January 2023. At the time of the Applicant’s initial request in February 2023, the Respondent had hired 7 new staff members and had 3 more positions on offer. All of those persons had been hired before the Applicant’s first email requesting recommencement on 22 February.
(ii)The Respondent’s business circumstances had suffered a serious decline in business of approximately 50% in 2023. Some staff were made redundant and others had left because of the reduced number of working hours that were available to them. The Respondent advertised vacant positions on 11 August almost 2 months after the Applicant had been dismissed because some staff members had left. This was only the second time in 2023 when advertising for new staff had occurred. The Respondent invited the Applicant to apply for a position in August and extended the time for her to do so. The Applicant did not apply.
(iii)The Applicant was dismissed because at the time of her dismissal the Respondent was unable to provide her with a recommencement date with any degree of certainty. There was no sign that the business situation of the Respondent was improving in June 2023. The Respondent did not have a role available at the time and could not foresee when such a role would become available.
(iv)The Applicant was a casual employee. Her work was not scheduled on set days and her hours regularly varied from week to week. Her contract of employment provided that there was no guarantee of ongoing or regular work and each occasion that the Applicant worked was a separate contract of employment which ceases at the end of that engagement.
The present task is not to embark on a comprehensive consideration of the substantive case. The exercise is to weigh the merits of the application in assessing whether the Commission can be satisfied of the existence of exceptional circumstances that would support an extension of the time limit for the filing of an application. The merits assessment is an aspect of, and a necessary step in, a broader inquiry. The ultimate outcome would largely depend on the final resolution of contested questions of fact.
I consider that the process followed by the Respondent leading up to the termination of the Applicant’s employment was deficient in a number of respects. The Applicant had a reasonable expectation that her return to work would be facilitated given the commitment that was given when she commenced her leave. The Applicant was left waiting for extended periods for a response when she had clearly indicated that she wanted to return to work. The termination of her employment shortly after she had been told she could expect to start at the end of June or early July was at the least, poorly handled. The termination also came immediately after the Applicant told the Respondent that she believed her re-employment was being purposely delayed. On the available evidence I am satisfied that, at its highest, the Applicant’s case is arguable. This weighs in favour of the Applicant’s case for an extension of time.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration. I find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
Ultimately, the Act requires that the Commission be satisfied that there are exceptional circumstances in order for an extension of time to be granted. 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.[9] 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. [10]
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 not satisfied that there are exceptional circumstances to warrant an extension of time.
I note that after the matter was concluded, the Respondent provided further written material in support of its case. I have not taken this material into account given that it was provided after the evidence had closed and the Applicant was unable to cross-examine the maker of the statement. Given the conclusion I have reached, I do not believe that the material and any response the Applicant might have had to it had it been received, would have altered the outcome of this matter.
Conclusion
The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Ms Raynne Rasha, for the Applicant.
Ms Shontelle Gregory-Hunt, for the Respondent.
Hearing details:
Heard by Video using Microsoft Teams, 10:00 AM (AEDT) on Tuesday 28 November 2023.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Ibid, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[7] Exhibit A7.
[8] Exhibit A3.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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