Sarah Jenkins v ITG Payroll Pty Ltd
[2024] FWC 578
•6 MARCH 2024
| [2024] FWC 578 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Jenkins
v
ITG Payroll Pty Ltd
(U2023/12297)
| DEPUTY PRESIDENT DEAN | CANBERRA, 6 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – no extension granted.
Ms Sarah Jenkins (the Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by ITG Payroll Pty Ltd (Respondent).
The Respondent objects to the application on multiple grounds, including that the Applicant was engaged as a contractor and was not an employee. If the Applicant was found to be an employee, the Respondent contended that her application could not proceed because she earned in excess of the high income threshold and had not met the minimum employment period, having had less than 6 months’ employment.
In addition, section 394(2) of the Act provides 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 Applicant says her dismissal took effect on 15 November 2023 and this application was lodged on 10 December 2023, 4 days outside the 21-day period.
The Commission is required to deal with whether time should be extended before dealing with the other jurisdictional objections, so the application was listed for hearing by telephone on 5 March 2024 to deal with this issue alone. The Applicant appeared and gave evidence on her own behalf. The Respondent was granted permission to be represented by Mr S Hardy of K&L Gates.
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]
For the reasons set out below, I find there are no exceptional circumstances and so I will not extend time for the application to proceed.
Extension of time
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 onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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
The Act does not specify what reason for the 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]
In summary, the Applicant explained the delay by saying that she had been assured by the Respondent that she would only be “moved off this employment engagement at Defence” once the Respondent had found her another role. Notwithstanding this, her contract was terminated effective 15 November 2023 after which she continued to engage with the Respondent’s recruitment officer about alternative positions. Further, on 5 December 2023 she became ill with Covid and was unable to get out of bed for 3 days.
The Applicant acknowledged in her oral evidence that she was aware of the 21-day time period, however she trusted the Respondent would find her another role as it had promised.
She said it was only when she realised that the Respondent was only trying to “keep her onside” for the time period to lapse rather than genuinely trying to find alternative work for her that she decided to make this application.
The Respondent opposed the granting of an extension of time, arguing that the reasons put forward by the Applicant were not exceptional because:
a.The Respondent did not provide her with any assurance that it would find her alternative employment, as it was unable to give such an assurance. It had put the Applicant forward for other suitable roles with its clients, however she was unsuccessful in relation to those roles; and
b.There was no evidence, such as a medical certificate, that the Applicant was suffering with Covid on or about 5 December 2023 for 3 days.
I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. She was aware of the 21-day time limit and even if a medical certificate had been provided, it would not have explained the whole period of the delay. There was nothing otherwise preventing the Applicant filing her application within the statutory time period.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of the cessation of her contract on the day it took effect and therefore had the full 21-day period to lodge her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the cessation of her contract 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
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
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.
While it is not possible to make any firm or detailed assessment of the merits, there are some significant jurisdictional hurdles the Applicant will face if time is extended, not least of which is that she agrees her period of engagement with the Respondent was less than 6 months, meaning she will not have met the minimum employment period. In addition, she will need to demonstrate that she was an employee and not a contractor, and she is not otherwise excluded from bringing an application given her high income.
I have considered the Applicant’s evidence as to why she considers her dismissal to be unfair, however given these additional jurisdictional hurdles, I consider the merits to be poor. This weighs against a finding that there are exceptional circumstances.
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.
I do not consider that there are any persons or cases 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.
Conclusion
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:
S Jenkins, on her own behalf.
S Hardy for ITG Payroll Pty Ltd.
Hearing details:
2024.
By telephone:
March 5.
[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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