Sarah Espley v Brentnalls SA

[2021] FWC 4517

[2021] FWC 4517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Espley
v
Brentnalls SA
(U2021/5647)

COMMISSIONER HAMPTON ADELAIDE, 2 AUGUST 2021

Application for an unfair dismissal remedy – extension of time required – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.

1. What this decision is about

[1] This decision concerns an application by Ms Sarah Espley (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Ms Espley is ultimately seeking compensation in the form of a redundancy package.

[2] Ms Espley’s employment with Brentnalls SA (Respondent or Brentnalls) concluded by way of resignation advised to the employer in writing on 6 May 2021. The resignation took effect on 12 May 2021. Ms Espley alleges her resignation was effectively a “constructive dismissal”, a forced resignation, due to changes to the nature of her work role and other factors operating at that time. The legal import of the resignation is in dispute.

[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). Adopting 12 May 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 2 June 2021. 1 The application was therefore filed 26 days after the 21-day limit. Ms Espley requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. 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.2

[4] The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer having regard to s.596 of the Act, largely on the basis of the complexity of the matter. This request was not opposed by the Applicant and permission was granted in this instance for reasons outlined during the hearing. These reasons were largely associated with the personal circumstances of the person who would otherwise have represented the Respondent arising from the COVID-19 related lock-down in place on the day of the hearing.

[5] As Ms Espley was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of her evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission. 3

[6] Ms Espley provided a witness statement 4 and gave sworn evidence on her own behalf. A statement5 of Emma Britton, Human Resources Manager employed by the Respondent, and comprehensive written submission on behalf of Brentnalls, were also provided to the Commission. Ms Espley and Ms Britton were both cross-examined.

[7] As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that in the absence of exceptional circumstances an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.

2. General findings about the background and the circumstances at the time of the alleged dismissal

[8] It is appropriate to make some findings about the context for the determination of this matter based upon the evidence that is before the Commissfion. In so doing, I accept that both Ms Espley and Ms Britton attempted to assist the Commission by giving honest evidence. In the case of Ms Espley, I find that her jaundiced views of her former employer have significantly influenced her evidence, not to the point of not being frank, but rather, in terms of her perception as to how and why the events were unfolding. As a result, I have placed most weight upon objective evidence.

[9] Brentnalls operates an accounting and business consultancy practice

[10] Ms Espley commenced employment with the Respondent in August 2010, initially in the role as Team Administrator, with 12-month transition to a position that also included the role of Personal Assistant. Over the course of the Ms Espley’s employment her job title evolved to be Personal Assistant/Team Administrator. The role was sometimes described 6 as being a Personal Assistant and I accept that this represented the higher-level responsibilities associated with the position. In the lead up to 1 July 2020, Ms Espley had provided the majority of her personal/administrative support to one senior partner of the Respondent (the Chairman), although the Applicant also supported other professional accounting staff generally.

[11] On 1 July 2020, the partner whom the Applicant primarily supported transitioned into a consultant role and as a result would require less administrative support. As a consequence, Ms Espley was transitioned to provide more administrative support, including personal assistant work, to the remaining partners who continued to carry on the client work of the exiting partner. Ms Espley retained the same salary and job title. There is a dispute about the extent to which the actual substantive duties changed and it is presently unnecessary for me to fully determine this aspect. I would however observe that the position involved less direct personal assistant work for the partners.

[12] It is also likely that an administrative restructure and other developments in early 2021 confirmed that change. This included changes in reporting and related arrangements.

[13] Over the first half of 2021 Ms Espley raised significant concerns about the nature of her work and job satisfaction arising from the above developments. Ms Espley did not consider that she was being valued by Brentnalls or that it had properly dealt with her concerns. Further, Ms Espley considered that she was being punished for raising her concerns and had been demoted, and this was all communicated at various times to the Respondent.

[14] Ms Britton commenced in April 2021 and amongst other matters, Ms Espley advised Ms Britton of her concerns including that she considered that she was now only a part-time administrative assistant and that Brentnalls was attempting to avoid making a redundancy payment.

[15] On 5 May 2021 Ms Espley met with Ms Britton, the Respondent’s Practice Manager and a Partner. Ms Espley and Ms Britton also met separately on that day. Amongst other exchanges, Ms Espley stated, in effect, that she should have been made redundant on 1 July 2020 because of the change in her role. Ms Britton assured the Applicant that her position was required and not redundant, but suggested they meet up again on the next day to discuss it further.

[16] On 6 May 2021, Ms Espley met with Ms Britton and advised that she was intending to resign but requested that the Respondent consider a redundancy package as an alternative. Ms Espley stated, to the effect, that she should have been made redundant at the time of the 1 July 2020 changes and that if she did not receive a redundancy package then she would pursue legal action (an unfair dismissal claim). This was reported by Ms Britton to senior management.

[17] A second meeting occurred on 6 May 2021 between Ms Espley, Ms Britton, and the Managing Partner of the Respondent. For its part, amongst other matters the Respondent confirmed its position that there was no redundancy as the role was still required and indicated that it did not want Ms Espley to resign.

[18] Shortly after the second meeting Ms Espley submitted a resignation letter to the Practice Manager, Ms Caporella. The resignation letter was dated 5 May 2021 and stated:

“…

This letter serves as my formal resignation from the position of Personal Assistant at Brentnalls SA.

I will be taking the next two working days off as annual leave with the end date of my role to be determined on 11 May 2021.

This has not been an easy decision to make and one I have struggled with due to my loyalty to the company.

However the change in my role over the past 11 months due to the organisations restructure has created significant stress and has in turn affected my health.

I have always strived for excellence and believe this has been reflected in my performance over the years. Recent questions about my effectiveness contradicts previous positive reviews that I struggle to find acceptable or come to terms with.

Prior attempts to rectify my unhappiness with my role shift and the current situation have not been met despite my strong desires to come to a position that is mutually beneficial and satisfactory to both myself and Brentnalls as an employer.

The above reasons are why I have concluded it would be best served to bring my career with the company to an end so I might pursue other opportunities that provide the stimulation and challenges I so deeply crave.

The majority of my time with Brentnalls has nonetheless been in the majority, a positive one and I wish the company every success in finding a more suitable candidate to take over my role as it stands.

Kind regards

Sarah Espley” 7

[19] I accept that Ms Espley did not state her full reasons or feelings in the resignation letter and wanted to be professional in leaving the business.

[20] On 6 May 2021, Ms Britton sent an email to Ms Espley confirming the Applicant’s resignation and confirming that they would meet again on 11 May 2021 (after the Applicant had returned from a few days annual leave) to discuss the handover arrangements and the Applicant's last day. 8

[21] During the 2 days of annual leave, Ms Espley sought legal advice and considered that she had a good case for “constructive dismissal”.

[22] As arranged, on 11 May 2021 Ms Britton again met with Ms Espley. Amongst other matters, Ms Britton advised that Brentnalls acknowledged that the Applicant was a long-term employee and as a gesture of goodwill thought it appropriate to make a payment in lieu of notice so Ms Espley was freed up to focus on job seeking options. Ms Britton informed Ms Espley that she could finish up on 12 May 2021.

[23] Ms Britton communicated the following to Ms Espley later that day:

“Dear Sarah

I am writing to follow up on your recent resignation on 6 May 2021 and to confirm your end date.

It's mutually agreed that tomorrow 12 May 2021 will be your last working day with the practice. As agreed with Matthew Holden you will be paid out the remainder of your notice period in lieu.

I did want to take this opportunity to again acknowledge your feedback on your experience at Brentnalls SA and reiterate what has been shared in our conversations over the last week – that the practice will be sad to see you leave and at no stage did the practice want to see you leave. The conversation last week was genuinely set up as an opportunity to check in and see how you were feeling about your role but based on your feedback we accept that you no longer wish to be a part of the practice.

Thank you again for the consideration that has gone into your hand over planning. Can you please ensure that any Brentnalls SA property (i.e. notes books with sensitive practice information including passwords) including your building pass is returned into Amalia prior to your departure. Rosalie will reach out tomorrow to run through our more formal departure checklist with you.

I know we've only just met but I genuinely wish you the best of luck with whatever you decide your next career move is.

Regards Emma” 9

[24] Ms Espley’s employment concluded on 12 May 2021.

[25] Ms Espley obtained new employment during her last few days working for Brentnalls. This involved an Executive Assistant position paid marginally more than her role with the Respondent. That new position commenced after Ms Espley took a few weeks off to recover from the events outlined above.

3. Are there exceptional circumstances and should an extension of time be granted?

[26] The Act permits 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 stated, 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. 10 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.11

[27] The requirement that there be exceptional circumstances before time can be extended under s.394(3) is a high hurdle 12 and 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.

[28] Section 394(3) requires that, in considering whether there are exceptional circumstances so as 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.

[29] 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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. 13 I now consider these matters in the context of the application.

Reason for the delay

[30] 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 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. 14 That is, an applicant does not need to 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.15 However, 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; although all of the circumstances must be considered on their own merits.16

[31] Ms Espley principally relies upon the following propositions as reasons for the delay in lodging the application:

•  At the conclusion of employment, Ms Espley considered that she had been constructively dismissed but assessed that she did not want to jeopardise her new employment by initiating an unfair dismissal application. Further, she was dealing with family moving from interstate, had been stressed by her treatment, and had financial commitments that meant that she needed a job.

•  Ms Espley had an active account with Seek.com during this period and saw that Brentnalls had put an advertisement out for a Personal Assistant/Team Administrator. Not wanting her new job to be affected by taking action further, Ms Espley decided to “let things go”. I observe that Ms Espley contends that Brentnalls had looked at her Linkedin profile after the end date and presumed that they were checking on whether she had gained employment elsewhere.

•  Some 6 weeks later, Ms Espley saw the announcement that Brentnalls had hired an “Administrative Assistant” to take over her role and considered that this was not the same as a Personal Assistant/Team Administrator. This confirmed in her view, that she being replaced by a lower position (an Administrative Assistant) and that her position with Brentnalls had in fact been demoted earlier, as a result of the changes. “This was the final straw.” 17

•  Ms Espley could not control the timing of the public announcement by Brentnalls and this led to the delay in making the unfair dismissal application.

•  At this point, Ms Espley decided to lodge her unfair dismissal claim as she felt that Brentnalls had deliberately timed its processes so that she would miss the 21-day timeframe to lodge her complaint.

[32] Brentnalls contends that the Commission should find that the reason for the delay was an active decision not to pursue a claim and instead move on with her newly secured job, followed by a change of mind only after the statutory limitation period had lapsed.

[33] It further contends as follows:

•  A change of mind has been consistently rejected as a satisfactory reason for delay. There is nothing exceptional about an employee deciding to simply move on with a new job.

•  Further, the Applicant’s reason for the change of mind does not take things further. Even if the Applicant was correct about the replacement employee being an Administrative Assistant or a more junior role (which she is not), the Respondent is at liberty in response to an employee resigning to decide how best to recruit to suit its workforce needs. The new incumbent employee has in all respects occupied the position the Applicant resigned from.

•  The reference to Administrative Assistant on the LinkedIn notification is not intended to suggest a junior appointment but rather that the incumbent is engaged to perform administrative assistance duties. There is nothing exceptional about an employer appointing a person into a role that has become vacant as a result of a resignation.

•  The Applicant’s perception about timing is incorrect. The Respondent has set out the timeline for recruiting the incumbent which shows that the Respondent publicly advertised the position within 2 days of the Applicant’s resignation and engaged in a sensible recruitment process over the coming weeks of shortlisting, interviewing on two occasions, reference checks, and then making an offer. There is nothing exceptional about the timing of the recruitment process that the Respondent has adopted.

•  It is also not correct to say that the Respondent waited for the statutory limitation period to pass before announcing the new appointment, given the incumbent only accepted the offer once the statutory limitation had lapsed and it was not uncommon to delay any external announcement to let the new employee settle into the role.

[34] The Respondent submits the reason for delay strongly weighs against an extension.

[35] This application was lodged with the Commission on 28 June 2021. As set out earlier, this was a few days short of 7 weeks after the conclusion of the employment and 26 days after the expiry of 21-day initial period contemplated by s.394(2)(a) of the Act.

[36] The objective material before the Commission confirms that the following arose after the alleged dismissal in terms of the process undertaken by Brentnalls:

•  On 14 May 2021, Brentnalls placed an advertisement on Seek.com for a Personal Assistant/Team Administrator. This position was broadly consistent with the role that had been undertaken by Ms Espley at the point of her resignation and including both Personal Assistant and Administrative Assistant roles. A salary range was added to the notice by Seek.com that reflected the local market rate, which was lower than Ms Espley’s salary, but there was no indication of the actual salary range proposed by the Respondent. Ms Espley read the advertisement at that point and did not make this application.

•  Following a review of job applications and reference checking an offer was made by Brentnalls to a “replacement” employee on 3 June 2021. The appointment was announced internally on 4 June and commenced on 7 June 2021.

•  The new appointee’s position broadly reflects that being undertaken by Ms Espley at the time of the resignation, albeit with much more emphasis upon the administrative functions of the role. 18

•  On 21 June 2021, Brentnalls made a brief external announcement of that appointment on LinkedIn. The announcement referred to the position as being an “Administrative Assistant” working with a Partner and his team. 19 This is the announcement that Ms Espley viewed and decided to take steps to lodge the application. The delay in announcing the new appointment was not inconsistent with previous practice, including in relation to Ms Britton’s own engagement.

[37] Whilst I accept that it was Ms Espley’s view about the nature of the replacement position that led to the application being made when it was, and that Ms Espley could not control that timing, I do not consider that a reasonable explanation for the delay in making this application has been provided.

[38] It is evident to me that at or near to the time of the resignation, Ms Espley considered that she had earlier been demoted and that subsequent events had led to a point where she was forced to resign. Ms Espley had taken legal advice and was aware of her capacity to being this application. Rather than do this, Ms Espley decided, probably quite reasonably from that perspective, to prioritise her new employment and not to make an application at that point.

[39] I also observe that although Ms Espley’s views about the subsequent advertisement for the new position and the associated salary, which were not completely correct, already indicated in her mind that the new employee was to be a lower position. Despite holding that view, no unfair dismissal application was contemplated or made at the point.

[40] Although the subsequent announcement of the replacement employee may, at its highest, have confirmed that the new employee was in a reduced position, this was of very marginal relevance to the factors relied upon by Ms Espley to justify her “constructive dismissal”. That is, whether or not Brentnalls replaced her with a lower position does not directly inform whether she had earlier been demoted and ultimately forced to resign. The nature of the new employee’s role was a matter for Brentnalls and they were under no obligation to replace Ms Espley in like terms. I also observe that Ms Espley read a great deal into the timing of the engagement of the new employee and the announcement, and the objective evidence does not generally support that view.

[41] As a result, I do not consider the explanation provided by Ms Espley for the delay in making this application is objectively acceptable or reasonable.

[42] My conclusion about the explanation for the delay tells against a finding of exceptional circumstances.

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

[43] I have found that Ms Espley was aware of her alleged dismissal on the date that the resignation took effect. This consideration does not support a finding of exceptional circumstances.

Action taken to dispute the dismissal

[44] Ms Espley did not otherwise challenge her alleged dismissal with the Respondent after the resignation despite having taken advice about the capacity to do so. This consideration tells against a finding of exceptional circumstances.

Prejudice to the employer

[45] Brentnalls did not cite any particular prejudice associated with the delay in the application. The mere absence of prejudice is not, by itself, a sufficient basis to grant of an extension of time. However, to the extent that the absence of prejudice might support an extension, I attribute it little weight in the consideration of whether there are exceptional circumstances. 20

Merits of the application

[46] The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration. 21 In this case, this would include whether the dismissal within the meaning of the Act; that is in this case, a forced resignation.22

[47] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)” 23 and the same applies to s.394(3)(e).

[48] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[49] I consider that the merits factor weighs mutually between the parties as a consideration of exceptional circumstances.

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

[50] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor. 24 I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.

4. Conclusions

[51] Having considered all of the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.

[52] As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a), and an extension of time has not been granted, there is not a valid application before the Commission.

[53] On that basis it is appropriate to dismiss the application and an Order 25 to that end is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

S Espley, the applicant, on her own behalf.

P Healey of Cowell Clarke Commercial Lawyers, with permission on behalf of Brentnalls SA, the Respondent.

Hearing details:

2021.
July 26.
Video Hearing.

Printed by authority of the Commonwealth Government Printer

<PR732174>

 1   The 21 day time limit does not include the day of the dismissal itself, consistent with the Acts Interpretation Act 1901 (Cth) s.36(1).

 2   Section 394(3) of the Act.

 3   See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 4   Exhibit A1.

 5   Exhibit R1.

 6   Including on Ms Espley’s business card and in a July 2019 salary review – attached to exhibit A1.

 7   Attachment to F3 – Employer Response Form.

 8   Attachment EB-2 to exhibit R1.

 9   Attachment EB-3 to Exhibit R1.

 10   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 11   Ibid.

 12   Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

 13   Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].

 14   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 15   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

 16   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 17   31.27 of recording of proceedings.

 18   EB-5 attached to Exhibit R1

 19   EB-6 attached to Exhibit R1.

 20   See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 61 IR 298 at 299 to 300.

 21   Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.

 22   Section 386(1)(b) of the Act.

 23   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

 24   See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.

 25   PR732176