Rochelle Stewart v The Trustee for Lemon Grove Operations Trust
[2023] FWC 1401
•15 JUNE 2023
| [2023] FWC 1401 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rochelle Stewart
v
The Trustee for Lemon Grove Operations Trust
(U2023/3405)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 JUNE 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
This decision concerns an application by Ms Rochelle Stewart (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
There is a dispute as to when the termination of the Applicant’s employment with the Trustee for Lemon Grove Operations Trust (Respondent) took effect and whether the Applicant was dismissed. For the reasons explained below, I am satisfied that the Applicant’s employment with the Respondent came to an end on or before 31 December 2022. I have not made any finding as to whether the Applicant was dismissed within the meaning of the Act. I will address the question of dismissal in a subsequent decision if I am satisfied that an extension of time should be granted for the filing of the Applicant’s unfair dismissal application.
The unfair dismissal application was lodged on 20 April 2023.
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). Having regard to my finding that the employment relationship came to an end on or before 31 December 2022 and assuming (in the Applicant’s favour) that the alleged dismissal took effect on 31 December 2022 (and not before), the period of 21 days ended at midnight on 21 January 2023. The application was therefore filed 89 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).
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]
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) 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.
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.
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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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.[5]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3
Relevant facts
The Applicant worked in a management position for the Respondent at the Lemon Grove Hotel. In about mid-2022, the Applicant was given a $10,000 pay rise.
On 4 November 2022, the Applicant was told that a new person had bought shares in the Lemon Grove Hotel and was going to be taking over the running of the hotel.
The Applicant and her husband went on a two-week holiday from 4 November 2022. During that time, the Applicant was cut off from her work emails. She was later, during the holiday, given access to her emails again.
The Applicant was put on paid leave for the week following her two-week holiday.
In the second half of November 2022, the Applicant was not sure whether she had been dismissed by the Respondent. She sought answers from the Respondent. In addition, she sought assistance from the Fair Work Ombudsman and the Fair Work Commission as to her status as an employee of the Respondent.
The Applicant was required by the Respondent to attend the Lemon Grove Hotel, where she had been living, to collect all her personal belongings, in the presence of security guards.
On 22 November 2022, the Applicant received an email from the Respondent in the following terms:
“Hi Rochelle
In response to your recent messages and emails to myself and Steve, we would like to assure you that your employment at Lemon Grove Hotel is still active and you have not been terminated or made redundant. We note that Lemon Grove Hotel is under no obligation to pay out (if applicable) redundancy, notice period or any other entitlement until your employment ends.
I do however advise that we are currently investigating a number of issues concerning the management of the hotel and your potential knowledge of, and involvement in, certain actions which are damaging to the business. While that investigation is being undertaken, we consider it appropriate that you continue your investigation in the next few days, and will then be in a position to conduct an interview with you regarding our preliminary findings, and to obtain further information from you. We will make arrangements for this, and permit you to have a support person present during any such interview.
We thank you for your understanding.
Should you have any queries, please do not hesitate to contact me…”
On 1 December 2022, the Applicant was provided with a medical certificate by her General Practitioner. The medical certificate stated that she had a ‘medical condition’ and would be unfit for work from 1 December 2022 until 9 December 2022 inclusive. I accept the Applicant’s evidence that her anxiety levels were very high and she was struggling to leave the house in the period from late November 2022 until early January 2023.
On 8 December 2022, the Applicant received an email from the Respondent in the following terms:
“Hi Rochelle
As previously advised to you, while you were on leave, a number of troubling matters came to our attention with respect to the way that the hotel has been operated, and given your management position, the reflection on your performance arising from this. We are concerned that you have breached the terms of your employment contract by failing to take reasonable care to prevent the employer from suffering financial loss, by either wilfully ignoring actions by others that caused the employer loss, or displaying extreme negligence in the performance of your duties for the employer. The nature of the financial loss includes unaccounted for stock losses and cash losses.
Our investigations reveals evidence that calls into question our confidence that you are committed to and have the interests of the business as a priority and that you have acted honestly and fairly with your employer.
Mutual trust and confidence is integral to the employee relationship.
Before concluding our investigation, we would like to obtain further information from you, and give you the opportunity to provide your side of the story.
We therefore invite you to a meeting to investigate these issues surrounding your employment, to obtain your input and your side of the story, before we conclude our investigation and decide what action, if any to take in relation to your employment.
We propose that the meeting take place at Lemon Grove Hotel on Tuesday 13th of December 2022. The employer’s representatives that we propose to attend the meeting are Adam Taylor and Joshua Redman. You are welcome to have a support person present during the meeting; however, we consider that it is inappropriate that Wayne Stewart be your support person, and we would request that he not be present during the meeting, but any other person will be considered to be an appropriate support person…”
On 11 or 12 December 2022, the Applicant sent the following response, drafted by her solicitor, to the Respondent:
“Dear Manu
I respectfully decline your invitation to participate in a meeting tomorrow.
I did not agree to take holiday leave for the last fortnight.
Your email of 22 November requires me to take leave, which I understood to be paid leave and not deducted from holiday allowance.
Please adjust my entitlements accordingly.
Please advise my entitlements to date.
Subject to agreement on entitlements, I intend to tender my resignation.”
On 12 December 2022, the Applicant informed her solicitor that she had been locked out of her emails after she sent her response to the Respondent. As a result, the Applicant could not access her payslips.
The Applicant did not attend the meeting on 13 December 2022, nor did she ‘tender’ her resignation or reach agreement on her ‘entitlements’.
The Respondent did not communicate with the Applicant following the meeting scheduled for 13 December 2022. The Respondent did not inform the Applicant that she had been dismissed or that her employment was at an end.
On 19 December 2022, the Applicant asked her solicitor what she should do. The Applicant informed her solicitor that the Respondent owed her two weeks’ pay for sick leave and her annual leave entitlements.
In the period from 19 December 2022 until about the end of January 2023, the Applicant’s solicitor sent a number of emails to the Respondent to chase up the Applicant’s final pay and outstanding annual leave entitlements. The Respondent did not respond to those communications.
On 9 February 2023, the Applicant sent an email to her solicitor to see whether he had received any information from the Respondent in relation to the Applicant’s ‘outstanding leave etc’.
On 13 March 2023, the Applicant’s solicitor informed her that he had not had any reply from the Respondent. The Applicant’s solicitor advised her to attend the Fair Work Commission’s offices in Newcastle to seek assistance.
A few days after 13 March 2023, the Applicant attended the offices of both the Fair Work Commission and the Fair Work Ombudsman in Newcastle. She was not able to speak to anybody at either organisation. The Applicant then called the Fair Work Commission helpline on a few occasions. These telephone calls took place about one to one and a half weeks after 13 March 2023. In the second of these telephone calls to the Fair Work Commission helpline, the Applicant was advised to complete an unfair dismissal application.
On 20 April 2023, the Applicant lodged her unfair dismissal application in the Fair Work Commission. Other than pointing to her work and other commitments, the Applicant was not able to explain why it took her from about 20-25 March 2023 until 20 April 2023 to complete and lodge her unfair dismissal application in the Fair Work Commission.
I accept the Applicant’s evidence that, notwithstanding the high levels of anxiety she was experiencing in late 2022 and early 2023 in relation to the cessation of her employment with the Respondent, she had to earn an income to survive. As a result, in the period from January 2023 until 20 April 2023 the Applicant worked almost every day in her own rooftop bar business.
The Respondent has not paid the Applicant her alleged entitlements to annual leave and sick leave.
The Applicant says that she had no comprehension as to what unfair dismissal was until she spoke to the Fair Work Commission in late March 2023. The Applicant also says that she was stressed and confused as to whether she had been dismissed.
The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[6]
The situation in the present matter is complicated because the Respondent did not, at any time, expressly inform the Applicant that her employment had ceased, nor did the Applicant expressly inform the Respondent that she had resigned or would resign on a particular date or on the happening of a particular event. The closest one gets to such a communication is the Applicant’s email to the Respondent on 11 or 12 December 2022 in which she states that “subject to agreement on entitlements, I intend to tender my resignation”. No agreement was reached on the Applicant’s entitlements, nor did she tender her resignation.
It is clear that after the Applicant did not attend the meeting proposed for 13 December 2022, her work emails were cut off, she did not do any work for the Respondent, she did not receive any payment from the Respondent, she did not receive any communications from the Respondent, and the Applicant’s solicitor repeatedly communicated with the Respondent to chase up the Applicant’s alleged outstanding annual leave entitlements, as well as her entitlement to sick leave in the period from 1 to 9 December 2022. Having regard to these facts and circumstances, I am satisfied that a reasonable person in the Applicant’s position would have believed, by 31 December 2022 at the latest, that their employment with the Respondent had ceased. Indeed, ordinarily it would only be appropriate to request payment for outstanding annual leave entitlements when the employment relationship has come to an end.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for most of the delay in filing her unfair dismissal application. I consider that the significant levels of anxiety and stress which the Applicant was enduring in December 2022 and at least part of January 2023, together with the uncertainty arising from an absence of any communications from the Respondent after 13 December 2022, provide the Applicant with a reasonable explanation for the delay in lodging her application from 31 December 2022 until 31 January 2023. Most of this time period is within the 21 days the Applicant had to lodge her unfair dismissal application after 31 December 2022. During January 2023 the Applicant was getting back on her feet and working in her own business. In my view, the Applicant did not have an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application in the period from 1 February 2023 until 20 April 2023. That the Applicant was not aware of unfair dismissal laws or the timeframe pertaining to the filing of an unfair dismissal application does not provide an acceptable or reasonable explanation for the delay.[7] Nor does the fact that the Applicant was busy working in her own business during this time. Finally, the evidence does not demonstrate any persuasive reason as to why the Applicant was not able to prepare and lodge her unfair dismissal application earlier than 20 April 2023, in light of the fact that she was communicating with her solicitor about her annual leave entitlements in late December 2022 and early February 2023, and was advised by the Fair Work Commission to complete an unfair dismissal application about one to one and a half weeks after receiving advice on 13 March 2023 from her solicitor to contact the Fair Work Commission.
The absence of an acceptable or reasonable explanation for a significant portion of the delay in lodging the application on 20 April 2023 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Although there was confusion over the issue, I am satisfied that the Applicant became aware of the cessation of her employment by 31 December 2022. So much is apparent from the emails from the Applicant to her solicitor on 19 December 2022 and again on 9 February 2022 when she referred to payment of her annual leave entitlements. The Applicant would not have had any such entitlement if her employment with the Respondent had remained on foot.
I am therefore satisfied that the Applicant became aware of the cessation of her employment with the Respondent at the time that I have found the termination took effect. Accordingly, this is a neutral consideration.
Action taken to dispute the dismissal
The Applicant took action to dispute her dismissal by instructing her solicitor to write to the Respondent about her entitlements and by contacting the Fair Work Commission, and attempting to contact the Fair Work Ombudsman, in March 2023. This circumstance weighs, to some extent, in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. If the Respondent’s investigation in November and December 2022 revealed any real concerns with the Applicant’s conduct in relation to the management of the Lemon Grove Hotel, evidence of those financial matters could be obtained and presented to defend an unfair dismissal case. 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
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. 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.
This is a case in which I am unable to make any sensible assessment of the merits of the unfair dismissal application at this stage of proceedings. The Respondent has asserted that the Applicant breached unspecified terms of her employment contract by engaging in conduct which is described in the correspondence in a very broad and unparticularised manner. The Applicant denies the allegations and refused to attend the meeting scheduled for 13 December 2022 because she did not believe she had done anything wrong and was not prepared to put herself in a situation where she believed that she would be bullied and harassed in a meeting with Mr Adam Taylor and Mr Joshua Redman.
Having regard to all the circumstances, I consider the merits of the application to be a neutral consideration in my assessment as to whether there are exceptional circumstances to warrant the exercise of my discretion to extend time for the late filing of the unfair dismissal application.
Fairness as between the person and other persons in a similar position
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 brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant was genuinely confused and anxious about whether her employment had been terminated and she took some action to dispute her dismissal before she lodged her unfair dismissal application in the Fair Work Commission, she does not have an acceptable or reasonable explanation for a significant portion of the long delay in lodging her application. The balance of the relevant considerations are not of any significant weight. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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.
It remains open for the Applicant to take action to address her alleged entitlements to annual leave, sick leave, and any other entitlement owed to her at the time her employment with the Respondent came to an end.
DEPUTY PRESIDENT
Appearances:
Ms R Stewart, on her own behalf
Mr D Manca, solicitor, for the Respondent
Hearing details:
2023.
Newcastle (by telephone):
June 8.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]
[7] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
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