Rebekah Ellison v Beca Pty Ltd
[2021] FWC 284
•25 JANUARY 2021
| [2021] FWC 284 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rebekah Ellison
v
Beca Pty Ltd
(U2020/15652)
DEPUTY PRESIDENT DEAN | SYDNEY, 25 JANUARY 2021 |
Application for an unfair dismissal remedy – extension of time – extension not granted.
[1] This decision concerns an application by Ms Rebekah Ellison (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
[2] The Applicant commenced employment with Beca Pty Ltd (the Respondent) on 13 January 2020 in the role of Assistant Project Manager. The Applicant gave notice of her resignation on 11 September 2020, which she claims was forced by the Respondent. The last day she performed work was 9 October 2020. Her unfair dismissal application was lodged on 7 December 2020.
[3] 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). The application in the present matter was filed 38 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
[4] The matter was listed for hearing by telephone on 22 January 2021. The Applicant appeared on her own behalf and Ms Rachel Worner appeared for the Respondent.
[5] 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.1 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.2
[6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
[7] 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.
[8] 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 this application.
Reason for the delay
[9] 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.3
[10] The Applicant cited the following as the reason for the delay in lodging the application:
“I believe my situation resulted from constructive dismissal. I submitted a formal complaint through HR on 14/09/2020 and again on 25/09/2020. I was informed that an investigation will take place where all participants will be interviewed. I was not interviewed or contacted by Beca Pty Ltd and concluded that my formal complaint was dismissed.”
[11] The Applicant said that she was placed on a Performance Improvement Plan (PIP) which was unreasonable, could not be measured and could not be achieved. She was not given sufficient feedback or direction regarding underperformance within a reasonable time frame. The Applicant claimed that the PIP was unfair because it provided for termination as an outcome and was not in line with the Respondent’s performance management policies.
[12] During the hearing, the Applicant explained that because she had made a formal complaint about the PIP process, the delay was caused as a result of waiting for a response to her complaint.
[13] The Respondent submitted that there are no exceptional circumstances applicable to the Applicant’s request for an extension of time. The Applicant resigned voluntarily and was not dismissed. She was told that the performance management process was only just commencing and there was no need to resign. Further, she was given the opportunity to withdraw her resignation but chose not to do so as she had obtained other employment.
[14] In terms of the Applicant’s grievance as to the performance management process, the Respondent said:
“Ms Ellison was in the early stages of a performance management process. She had asked for a review of actions taken and wanted Ms Worner to make it clear to the managers how the process had affected her personally. This was done and Ms Worner reported back that it had been done. Ms Ellison accepted the outcomes and Beca considered the matter closed.
Subsequently, just before her departure Ms Ellison changed her mind and asked for another review to take place after she had gone, to be undertaken by someone who had not been involved in any way. This review was conducted by Helen Smith, People Advice Manager. Ms Worner told Ms Ellison that Ms Smith would conduct the review. Ms Worner asked Ms Ellison if she wished to give any more information however she said she had already produced everything and had nothing more to add. …
Ms Worner had confirmed to Ms Ellison that the review would take place and that for reasons of confidentiality any outcomes would not be passed on. Furthermore, Ms Ellison would also have left the business once the review was completed. Ms Ellison’s correspondence acknowledges this.
Ms Ellison acknowledged that she understood that she would not be privy to the outcomes of the investigation due to her departure from Beca.”
[15] The Respondent said that it had fulfilled the Applicant’s request by conducting a formal investigation and considered the matter closed.
[16] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. The Respondent’s investigation into her complaint about the PIP process did not prevent her from making her application within the statutory timeframe. The Applicant did not provide any reasonable explanation for the delay in filing the application almost 3 months after she tendered her resignation on 11 September 2020.
[17] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[18] The Applicant resigned and was aware that her employment with the Respondent ceased on 9 October 2020. I am therefore satisfied that the Applicant had the full 21 day period to lodge her unfair dismissal application. I consider this factor weigh against a finding of exceptional circumstances.
Action taken to dispute the dismissal
[19] The Applicant did not take any action to dispute the cessation of her employment until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[20] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. 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 little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[21] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
[22] On the evidence before me, I am not convinced that the Applicant was placed in a position where she had no other choice but to resign. There is no evidence to suggest that the Respondent had made a definite decision to terminate the Applicant’s employment, let alone any evidence of conduct of the employer that would support a finding that she was forced to resign.
[23] In all the circumstances, I am of the view that the merits of the application are not strong. This weighs against the finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[24] 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.
[25] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[26] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, 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 application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
R Ellison, on her own behalf.
R Worner for Beca Pty Ltd.
Hearing details:
2021.
Sydney (By telephone):
January 22.
Printed by authority of the Commonwealth Government Printer
<PR726309>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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