Sandra Reid v RTC Construction NSW Pty Limited

[2021] FWC 5147

[2021] FWC 5147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Reid
v
RTC Construction NSW Pty Limited
(U2021/6518)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 19 AUGUST 2021

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

[1] This decision concerns an application by Ms Sandra Reid (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with RTC Construction NSW Pty Ltd (Respondent) took effect on 2 July 2021 because that is when the Applicant’s employment relationship with the Respondent came to an end. The unfair dismissal application was lodged at 6:07am on 24 July 2021.

[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 period of 21 days ended at midnight on 23 July 2021. The application was therefore filed one day 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 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

[5] 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.

[6] 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.

[7] 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

[8] 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

[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. 5

[10] The evidence given by the Applicant as to the reasons for the delay in lodging her unfair dismissal application may be summarised as follows:

(a) The Applicant’s remuneration package with the Respondent included a fully maintained vehicle, and a laptop computer and mobile phone for reasonable personal use. Return of these items was required on the Applicant’s dismissal. To ensure the Applicant remained contactable in the event of an emergency, she entered into a mobile phone contract with Telstra on 2 July 2021.

(b) Believing that her redundancy was not genuine and that it was harsh, unjust and unreasonable, the Applicant immediately sought advice from a free legal service. The Applicant was advised that under the Fair Work Act 2009 an unfair dismissal application must be made within 21 days after the dismissal took effect. The Applicant was advised that an application could be made online.

(c) The Respondent operates a fortnightly payroll system. The Applicant was paid the wages owed to her and her redundancy payment on 14 July 2021.

(d) To facilitate the submission of job applications and her claim for unfair dismissal, on Tuesday, 6 July 2021 the Applicant purchased a laptop computer on credit from Harvey Norman. On the same day the Applicant celebrated her daughter’s ninth birthday.

(e) As the primary income earner in the household and with concerns regarding her family’s financial position, the Applicant focused her immediate efforts on seeking employment. Between Wednesday, 7 July 2021 and Sunday, 11 July 2021 the Applicant developed a resume and template cover letter, and submitted several job applications.

(f) The Applicant’s husband is engaged on a fixed term contract as a Strength and Conditioning Coach with a team in the National Rugby League (NRL). On Monday, 12 July 2021, the Applicant’s husband was informed that due to increasing concerns regarding COVID-19 that he, together with players and other staff, were being relocated to Queensland by the NRL for a period of up to one month. Flights were confirmed for an immediate departure on Wednesday, 14 July 2021. In the same briefing the NRL extended the relocation arrangements to include partners and families. Families could either travel by plane on Saturday, 17 July 2021 or travel independently. Persons from eligible areas nominating to travel independently were strongly advised to cross the Queensland board prior to midnight on Thursday, 15 July 2021 due to concerns that boarder arrangements may unexpectedly change. Families were informed that they would enter a 14-day quarantine on 17 July 2021 in accommodation provided by the NRL. By midday on Tuesday, 13 July 2021, with less than 24 hours’ notice, families were required to register their intention to relocate. The Applicant and her husband discussed his relocation and the invitation to relocate as a family. Their concerns related to his relocation included the potential for the timeframe to extend to the end of the season (3 October 2021) should the number and spread of COVID-19 cases continue, the emotional impact on their children being separated from their father for four to twelve weeks, advice from the NRL advising that relocation after 17 July 2021 would be problematic and visitation could not be guaranteed, and the well-being of the Applicant’s husband. With the knowledge that not all contracted staff would be travelling, the workload of the Applicant’s husband was expected to increase significantly. In discussing their relocation as a family, a number of factors were considered, including whether their children’s school would support an application for leave, the potential impact on their children’s education if they nominated to home school independently, the financial implication on their household budget given the significant reduction in the family’s income, the Applicant’s ability to successfully seek employment while residing in Queensland, the security of their vacant home and the risk that Newcastle would transition to lock down. Critical to this discussion was consideration of the impact on their children’s mental health and well-being and the Applicant’s ability to access family support during her husband’s absence, particularly given health concerns in relation to their children, aged 9 and 6.

(g) In order reduce the negative impact on their family, the Applicant and her husband decided that it was best to provide some emotional stability and stay together as a family unit for as long as possible. It was decided that the Applicant and their children would relocate to Queensland, but that they would travel independently by car, so that the Applicant could return to their home in Newcastle as soon as she secured employment or earlier if the relocation proved detrimental to their children’s education or well-being.

(h) On 13 July 2021, the Applicant’s husband attended work and advised his employer that they intended to relocate as a family. On the same day, the Applicant made numerous arrangements to facilitate an immediate departure including arranging temporary accommodation with family, care for their pets, submission of Queensland travel declarations, advising their before/after school care provider of the change in their circumstances, contacting family and neighbours, returning the loan car they had arranged post the return of the Applicant’s RTC work vehicle, and packing their family car with the Applicant’s husband’s work equipment and the personal items that the children and the Applicant would need for an extended relocation including larger items such as bikes. Discussions with the Applicant’s children’s school commenced at 9am on 13 July 2021. During the day it was confirmed that they would be relocating to Queensland and at 3:15pm the Applicant met with her children’s teachers to discuss independent home schooling and strategies to assist with their mental health and well-being while away.

(i) At 7:30am on Wednesday, 14 July 2021, the Applicant’s husband departed for work, and later that day travelled with his team to the Sunshine Coast, Queensland. On arrival at their accommodation, they entered a 14-day quarantine in line with the NRL’s relocation plan. At approximately 1pm that day the Applicant and her two children departed Newcastle by car. After travelling for nearly 10 hours, they arrived at approximately 9:45pm at the Applicant’s brother in law’s residence in Brisbane. It had been arranged for the Applicant and her children to reside at his residence for 3 nights, 14-16 July 2021 inclusive. In accordance with information provided by the NRL, it was expected that the Applicant and her children would then join the Newcastle families traveling by plane at the Sunshine Coast accommodation on 17 July 2021.

(j) On 15 July 2021, the NRL released a memo advising that travel arrangements were pending approval of the NRL’s COVID-19 plan by the Queensland Government. On 16 July 2021, urgent advice was provided to families regarding a change to the NRL’s relocation plan. Families traveling by plane from Newcastle were advised that they would be departing that afternoon, that transfer to the Sunshine Coast would not occur as planned and that temporary accommodation would be provided on the Gold Coast. The Applicant was advised to remain in Brisbane. Due to issues sourcing accommodation after a short stay on the Gold Coast, families were expected to transfer to a second hotel, which was yet to be confirmed.

(k) For eight nights, 14 to 21 July 2021 inclusive, the Applicant and her children resided with her brother-in-law in Brisbane. The Applicant and her two children shared a single room on a queen size inflated air mattress.

(l) With little time to plan, pack or prepare and finding herself in a new and unfamiliar location, the Applicant felt overwhelmed. She was unaware geographically where she was located, and with her brother-in-law working full time and periodically staying away overnight, the Applicant had to research and locate basic goods and service providers such as a supermarket, service station and chemist and navigate the complex motorway system. Given the Applicant’s location and with no local knowledge she had concerns regarding personal safety and the security of their property. Finding themselves in a strange and new environment, lonely, tired and with no routine or structure, the behaviour of the Applicant’s children changed noticeably and they struggled to adapt to their new environment. During this period of uncertainty, the Applicant focused on submitting applications for employment, making arrangements for the care, maintenance and security of her home and other assets, suspending subscriptions and memberships that financially they were no longer able to support, cancelling term 3 after school activities and commitments, home schooling her children and attempting to provide a fun, safe and secure environment.

(m) On 20 July 2021, the Applicant commenced preparing her unfair dismissal application, acutely aware that the 21 day deadline was approaching. In preparing her application, the Applicant understood that evidence of her dismissal was required. The notice of dismissal provided to the Applicant on 2 July 2021 was in hard copy only. The Applicant had left the termination letter at her home address. At 12:20pm on 20 July 2021, the Applicant sent an email to Accounts at RTC Group, requesting documents relating to her dismissal.

(n) At 4:45pm on 21 July 2021, the Applicant was advised that she was to join the Newcastle and Canberra families the following day at the NRL nominated accommodation in Surfers Paradise. In preparation to depart Brisbane the Applicant spent 22 July 2021 washing and cleaning their accommodation, packing their belongings and vehicle, schooling and caring for her children. The Applicant also contacted Telstra regarding concerns over her mobile phone data usage. Push notifications regarding usage had alerted the Applicant that her data bank was about to expire with 10 days remaining. Since relocating to Queensland, the Applicant had relied solely on her 40GB data plan for accessing internet sites such as Seek, as a navigation system whilst travelling in her car and for entertaining and home schooling her children. After unsuccessfully attempting to negotiate the transfer of data to her mobile from her unlimited home account or her 20GB roaming mobile account, and with Telstra not being contactable on the phone or person to person, the Applicant switched off her mobile data to ensure it was available in the event of an emergency.

(o) At 8:30pm on 22 July 2021, after travelling approximately 90 minutes, the Applicant and her children arrived in the hotel they were assigned to stay in at Surfers Paradise. On 23 July 2021, the Applicant and her children unpacked and settled into their new environment and accommodation. Having had minimal close contact with others since their arrival in Queensland, the sheer number of partners and children staying at the same hotel as the Applicant was an overwhelming and intimidating environment for the Applicant and her children.

(p) On the evening of 23 July 2021, with complimentary WIFI available through the hotel, the Applicant sought to finalise her application for unfair dismissal via the online portal. During the evening the Applicant’s youngest child struggled to settle for sleep and had associated difficulties. The Applicant’s primary focus was attending to his needs and settling his anxiety. Returning to complete her unfair dismissal application, the Applicant was presented with an error message. The Commission’s online portal was unavailable as it was offline for scheduled maintenance. Feeling exhausted and overwhelmed, the Applicant downloaded an electronic copy of the application. During the night the Applicant slept intermittently, and then submitted her application by email at 6:07am on 24 July 2021, 6 hours and 7 minutes late.

[11] Although I have sympathy for the Applicant’s personal circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. The Applicant was aware from a very early time after her dismissal took effect that she had 21 days to lodge her unfair dismissal application. Although the Applicant had to care for her children, as well as take care of a lot of stressful decisions and logistical arrangements, she had time available during the 21 day period following her dismissal to prepare a resume and search for and submit various job applications. Preparing an unfair dismissal application is not a time-consuming or complex task. It does not require long submissions or knowledge of legal principles. Nor is it necessary for any particular documents to be attached to an unfair dismissal application at the time it is lodged. An unfair dismissal application can be made over the telephone or it can be lodged by email, online or by fax. If the online portal is not available or accessible, an unfair dismissal application can be lodged by an alternative method such as email, which is the means used by the Applicant to lodge her application on the morning of 24 July 2021.

[12] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 24 July 2021 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[13] The Applicant was aware of her dismissal on the day it took effect. The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[14] The Applicant did not suggest that she took any action to dispute her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[15] 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

[16] 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. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[17] The Respondent contends that it made a legitimate business decision to terminate the Applicant’s position on the grounds of redundancy. It says that it has distributed the Applicant’s duties and responsibilities between a range of employees. The Respondent made payments in respect of notice and redundancy to the Applicant on the termination of her employment. The Respondent did not make any other positions redundant at the time it dismissed the Applicant.

[18] The Applicant does not contend that she was dismissed for some ulterior reason or purpose. She says that her performance and conduct were not questioned or criticised during her employment with the Respondent. The Applicant does not contend that she was covered by an award or an enterprise agreement. It seems the Applicant is correct in that regard, particularly having regard to her role as a Compliance Manager and her salary of $130,000 per annum plus superannuation. The Applicant also says that she could have been redeployed to a role as an Estimator, after the provision of relevant training, or a Truck Driver, given the Applicant has her truck driver’s licence. The Applicant accepts that even if she had been offered an alternative role with another company within the RTC Group in South Australia or Tasmania, she probably would not have accepted the role.

[19] On the basis of the limited material before the Commission, I am of the view that:

(a) the Respondent has a reasonably strong case that it no longer required the Applicant’s job to be performed by anyone because of changes to the operational requirements of its enterprise (s 389(1)(a) of the Act). The redistribution of the Applicant’s duties and responsibilities to other employees of the Respondent supports the Respondent’s contention in this regard;

(b) although the Applicant complains that the Respondent did not consult with her prior to informing her of her redundancy, the fact that she does not appear to have been covered by an award or enterprise agreement means that the Respondent has a strong case that it has not failed to comply with “an obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy” (s 389(1)(b) of the Act); and

(c) the Applicant has at least an arguable case that it would have been reasonable in all the circumstances for her to be redeployed with the Respondent’s enterprise or the enterprise of an associated entity of the Respondent (s 389(2) of the Act). The fact that the different entities within the RTC Group have the same CEO and the same board overseeing their activities suggests that they are likely to be associated entities. The Applicant gave unchallenged evidence that RTC was advertising two Truck Driver roles at the time of her dismissal and an Estimator position had just become vacant because an employee had resigned from that role the day before she was dismissed on the grounds of redundancy. Those positions were based in Newcastle. The Applicant appears to be qualified for the Truck Driver roles because she has had a truck driver’s licence for many years, notwithstanding that she has not worked in such a role for a considerable period of time given her management skills and experience. The Applicant also gave unchallenged evidence, which I accept, that it is likely she could have been trained within a reasonable period of time to undertake the role of Estimator. The role of Operations Manager, which had been vacated shortly before the Applicant’s dismissal, has not been replaced. The other roles to which the Applicant referred in her evidence were based in South Australia and Tasmania. I accept the Applicant’s evidence that she probably would not have accepted such a role if it had been offered to her.

[20] Given the arguments available to the Applicant in relation to redeployment (s 389(2) of the Act), I consider that that the Applicant has at least an arguable case that her dismissal was not a genuine redundancy within the meaning of s 389 of the Act. As to the merits of the case, although the Respondent has a good argument that it no longer requires anybody to perform the Applicant’s former role, the realistic prospect that the Applicant could have been reasonably redeployed to the role of Estimator or Truck Driver suggests that her dismissal on the grounds of redundancy was unfair. The Applicant had changed roles a number of times in the past and her willingness to be flexible suggests that she would have likely accepted, albeit reluctantly, a role such as a Truck Driver or Estimator, particularly given that the Applicant is the primary ‘breadwinner’ for her family. The lack of consultation with the Applicant meant that there were limited opportunities for discussion about the topic of redeployment or other measures to ameliorate the impact of the decision to make the Applicant’s position redundant.

[21] On the basis of the limited material before the Commission I am of the opinion that the Applicant has at least an arguable case that her dismissal was harsh, unjust and/or unreasonable. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in her favour of her application for an extension of time.

Fairness as between the person and other persons in a similar position

[22] 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.

[23] 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

[24] Having regard to 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. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging her application and although the Applicant has an arguable case that her dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[25] 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:

Ms Reid on her own behalf
Ms Meissner, solicitor, on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
August 16.

Printed by authority of the Commonwealth Government Printer

<PR732993>

 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]