Rebekah Hearne v Stella's Spa Pty Ltd
[2022] FWC 1263
•25 MAY 2022
| [2022] FWC 1263 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rebekah Hearne
v
Stella’s Spa Pty Ltd
(U2022/4047)
| COMMISSIONER MCKINNON | SYDNEY, 25 MAY 2022 |
Application for an unfair dismissal remedy – application filed out of time – whether extension of time should be allowed.
Ms Rebekah Hearne was employed by Stella’s Spa Pty Ltd from 1 April 2019 until 14 March 2022. On 6 April 2022, Ms Hearne applied for an unfair dismissal remedy. The application was filed 2 days after the end of the 21-day period within which such applications are required to be filed. The question is whether additional time should be allowed to Ms Hearne to make her application to the Commission.
I have decided not to allow an additional period for Ms Hearne to make the application. These are my reasons.
Extension of time
Under section 394(2), additional time can be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The matters to be taken into account when deciding whether to grant additional time are set out in section 394(3) of the Act. These are:
the reason for the delay
whether the person first became aware of the dismissal after it had taken effect
any action taken by the person to dispute the dismissal
prejudice to the employer (including prejudice caused by the delay)
the merits of the application, and
fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Ms Hearne’s reasons for the delay include that before the dismissal she had tonsilitis, followed by a severe bout of COVID-19 which was diagnosed on 20 March 2022. After that time, Ms Hearne was required to isolate until 27 March 2022. She lives in a rural community and was caring for her school-aged child during this time. She had no access to printers or scanners.
Ms Hearne submits that when she was stood down on 8 March 2022, her employment status was unclear. There is no dispute that this was clarified in writing to Ms Hearne on 14 March 2022 when the dismissal was clearly communicated to Ms Hearne and took effect. Ms Hearne says she then took a few days to consider her options and seek advice, aware of the demand that she respond to allegations of defamation by Friday 18 March 2022. She was not focused on an unfair dismissal application at this point.
Ms Hearne submits that she then came down with COVID-19 and was not in a position to provide instructions to her lawyer or to file her application to the Commission. I accept that Ms Hearne was incapacitated for part of the 21‑day period. However, the contention that personal circumstances prevented Ms Hearne from making her unfair dismissal application on time is inconsistent with the weight of evidence.
Over the course of the 21-day period, Ms Hearne had a mobile phone that was capable of accessing the internet and receiving emails. She must have been capable of giving instructions to her lawyers, because on or about 16 March 2022 lawyers wrote to legal representatives for Stella’s Spa on behalf of Ms Hearne. Ms Hearne participated in a telephone conference with Counsel about allegations of defamation and breach of contract in relation to her former employment on 24 March 2022. Further correspondence from Ms Hearne’s legal representatives was sent on 21 March 2022, 24 March 2022 and 31 March 2022. Ms Hearne attended the business premises of Stella’s Spa on 30 March 2022 in what turned out to be an unsuccessful attempt to exchange items of property.
It was this exchange of property that was the focus of communications between the parties’ respective legal representatives. There was no allegation of unfair dismissal made by Ms Hearne, nor any claim for underpayment of wages. Ms Hearne submits that she was distracted by the threat of defamation proceedings made by Stella’s Spa and was awaiting Counsel’s advice. It appears this advice was obtained during the meeting with Counsel on 24 March 2022.
Ms Hearn only gave instructions to her lawyers to apply for an unfair dismissal remedy on 31 March 2022. This left two business days for the application to be made. Documents were prepared on behalf of Ms Hearne but not sent to her for review until 5 April 2022, one day after the end of the 21‑day period. In this respect, Ms Hearne’s lawyers concede representative error but do not explain how or why it occurred.
The only exceptional circumstance in this case is the failure of Ms Hearne’s representative to act promptly to file an unfair dismissal claim on her behalf. It is regrettable that this error was only identified in response to questions asked at the hearing, with the result that I am no clearer now than before the hearing as to precisely what caused the delay.
Whether the person first became aware of the dismissal after it had taken effect: Ms Hearne knew that she had been dismissed on 14 March 2022 when she received a notice of dismissal with immediate effect.
Any action taken by the person to dispute the dismissal: As outlined above, Ms Hearne’s legal representatives were engaged in correspondence with the legal representatives for Stella’s Spa for most of the 21-day period after dismissal. The focus of this correspondence was the exchange of personal property. There was no mention of the dismissal itself being in dispute. I do not accept that the reason for this omission is that Ms Hearne was awaiting further discussion with Stella’s Spa about the nature of allegations made against her. Ms Hearne had the benefit of legal advice and there is no reason why, if the dismissal was in dispute, she could not have made this clear to Stella’s Spa or its legal representatives while awaiting further information about their position.
Prejudice to the employer (including prejudice caused by the delay): Despite the submissions on behalf of Stella’s Spa, there is no significant prejudice to Stella’s Spa if the application is to proceed two days late. I accept that it will incur the additional cost and time of responding to the application for an extension of time, but that is an ordinary consequence of cases where the Commission is called upon to exercise its discretion under section 394(2) of the Act.
Merits of the application: Ms Hearne resigned on 4 March 2022, giving one month’s notice. Shortly thereafter, a dispute arose about whether Ms Hearne was soliciting clients away from the salon. She was stood down on 8 March 2022 and summarily dismissed on 14 March 2022. Ms Hearne denies soliciting clients away from Stella’s Spa, although on the face of the record there appears to be an admission that messages were sent to some clients. Ms Hearne also says the dismissal lacked procedural fairness. The weight of this contention will depend somewhat on findings in relation to the allegation of solicitation and whether the conduct might amount to serious misconduct. That is to say, the case for both parties is at least arguable, and much will depend on the findings of fact. Assuming Ms Hearne succeeds in establishing unfairness, the remedy available to Ms Hearne would appear to be limited by her resignation. This is because her likely period of further employment with Stella’s Spa would be no more than 3 weeks.
Fairness as between the person and other persons in a similar position is not a relevant consideration in the case.
Conclusion
As I have found, there is the exceptional circumstance of representative error in this case. It is an error that remains unexplained, and which must be seen in the context of the provision of legal advice to Ms Hearne over almost the entire 21-day period during which Ms Hearne was entitled to make her application. This leads me to conclude that Ms Hearne and her legal representatives were working closely together over the post-dismissal period. It was not logistical issues that prevented the application being made on time. It was simply that an unfair dismissal application was not contemplated until very late in the piece, despite Ms Hearne knowing of the dismissal on the day it took effect, and her legal representatives knowing about it no more than two days later.
The reality of rural life often makes internet access, physical printing and scanning a challenge. So too, it must be accepted, is the experience of a severe COVID-19 infection, particularly while caring for a child. To Ms Hearne’s credit, these challenges were able to be overcome for the purpose of seeking advice about alleged defamation and breach of contract. There is no reason why they could not also have been overcome for the purpose of making this application on time. Ms Hearne had access to the necessary resources to do so. The application could have been made online via her mobile phone, or by Ms Hearne giving instructions to her lawyers either by email or over the phone. Her lawyers could have made the application on time but did not, for reasons that are not explained. As to the merits, the case is arguable for Ms Hearne but undermined by her apparent admission about contacting clients of the salon in the days following her resignation.
On balance, I have decided not to grant an extension of time to Ms Hearne to make the application.
The application is dismissed.
COMMISSIONER
Appearances:
K Hall of KPW Lawyers for the applicant.
H Edwards of RMB Lawyers for the respondent.
Hearing details:
2022.
Sydney (by video):
May 24.
[1] [2011] 203 IR 1 at [13].
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