Shari Leanne O'Neill v Kristie Bates T/A World Class Hounds
[2022] FWC 1350
•2 JUNE 2022
| [2022] FWC 1350 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shari Leanne O’Neill
v
Kristie Bates T/A World Class Hounds
(U2022/4260)
| COMMISSIONER MCKINNON | SYDNEY, 2 JUNE 2022 |
Application for an unfair dismissal remedy – application filed out of time - additional time allowed.
Ms Shari Leanne O’Neill was employed by Kristie Bates trading as World Class Hounds from 19 May 2020 until 25 February 2022. On 12 April 2022, Ms O’Neill applied for an unfair dismissal remedy. The application was filed 25 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Ms O’Neill to make her application to the Commission.
I have decided to allow an additional period for Ms O’Neill 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 O’Neill’s reason for the delay is that although she initially had no reason to doubt that the redundancy of her position was genuine, she received an email from Ms Bates 6-weeks later asserting that the real reason for her dismissal was performance and conduct concerns. Ms O’Neill now believes that her agreement with Ms Bates for her final pay to be made over three weekly instalments may have been intended to coincide with the 21‑day period in which to make an unfair dismissal claim.
On Friday 8 April 2022, Ms O’Neill received an email from Ms Bates, which included the following paragraph:
“In relation to your redundancy, it was a decision taken due to your ongoing degradation of the Road Transport sector of World Class Hounds. Initially a decision had been taken for your demotion/cessation from Road Transport Manager due to multiple and ongoing complaints from staff (including resignations/threatened resignations) and clients, as well as continual scheduling and management issues you refused to manage which was part of your accepted and expected duties. Even with continued employment with World Class Hounds your direct behavior continued to contribute to a loss in business and continued complaints in regards to your behavior. This includes unacceptable behaviour towards myself. You also refused to work with other staff members and threatened to resign if you were to work under other management. Due to your multiple contributing factors to financial/reputation losses for World Class Hounds, ongoing loss of business and poor behavior, there was no further ability to sustain your position. My decision was taken as the better option than dismissal on disciplinary/poor performance grounds.”
After receiving this email, Ms O’Neill rang the Commission and was told that if she wanted to apply for unfair dismissal, she should do so straight away. She spent the weekend putting the paperwork together and collecting references. The application was completed on 11 April 2022 and by 8.52am on Tuesday 12 April 2022, she had received the references she had asked for. The application was lodged 38 minutes later, at 9.30am.
I am satisfied that taken together, the email of 8 April 2022 and the deferred payment of Ms O’Neill’s final pay over a three‑week period are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: Ms O’Neill knew she had been dismissed on 25 February 2022 when she received a notice of termination with immediate effect.
Any action taken by the person to dispute the dismissal: At some point between 25 February 2022 and 2 March 2022, Ms O’Neill sought advice from “Fair Work” because she referred to having done so in an email to Ms Bates, disputing the redundancy, on 2 March 2022. The nature of her concern was the lack of any proper redundancy process: no prior conversation; no offer of alternative work or hours or pay. Ms O’Neill did not receive a response from Ms Bates to her email of 2 March 2022. She then waited to receive her pay, with the last instalment paid on 18 March 2022 (the 21st day after dismissal). In early April 2022, Ms O’Neill rang Ms Bates to ask if there was any objection to her taking up work in the pet transport business, given the difficulties the business was facing. Ms Bates did object. The emails between them about the issue appear to have prompted Ms Bates to send the email of 8 April 2022 set out above.
Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to World Class Hounds if the application is allowed to proceed.
Merits of the application: On my analysis of the materials, both parties have an arguable case. It does appear that the business was in a difficult financial position at the time the redundancy occurred and may genuinely have needed to reduce its costs, including by the redundancy of employees. Indeed, Ms O’Neill was not the only employee made redundant on or about the same time. On the other hand, it appears that ‘redundancy’ was relied upon to gloss over or avoid having to deal with performance and conduct concerns in relation to Ms O’Neill. Further, if consultation was required in relation to the redundancy, it does not appear to have occurred. Finally, there is a live question about whether it would have been reasonable to redeploy Ms O’Neill, in light of the factual dispute about whether Ms O’Neill was offered the alternative role of casual driver (an assertion denied by Ms O’Neill).
Fairness as between the person and other persons in a similar position does not appear to be a relevant consideration in the case.
Conclusion
I have found exceptional circumstances in this case. The questions of prejudice and the merits are neutral considerations. The reasons for delay weigh in favour of additional time. Weighing against additional time is that Ms O’Neill knew she had been dismissed straight away and sought advice from “Fair Work” in the week following her dismissal. From her own research and advice, she formed the view that the redundancy process would not stand up to scrutiny. Yet Ms O’Neill took no action in relation to her dismissal on that basis even though had she done so, the application would likely have been in time.
Ms O’Neill’s inaction in this regard would carry more weight if the application simply took issue with the procedural aspects of the redundancy including whether it was a ‘genuine redundancy’ for the purposes of the Act. Instead, the application arises because the reasons for dismissal changed. Serious allegations of poor performance and conduct were made against Ms O’Neill despite her previously being assured that the redundancy was not a reflection on her performance.
It was four days after receiving the email of 8 April 2022 that Ms O’Neill filed her application. This last delay is explained both by timing (it was then almost the weekend) and by a misapprehension that references were required to support the application. These explanations would not ordinarily support the grant of additional time. However, if the reasons for dismissal on 25 February 2022 had been articulated in the way they were on 8 April 2022, it is likely the application would have been made earlier and well within the 21‑day timeframe.
On balance, I have decided to grant an extension of time to Ms O’Neill to make the application. The matter will now be referred for conciliation.
COMMISSIONER
Appearances:
S O’Neill on her own behalf.
S McAuliffe of Latitude Lawyers on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
May 30.
[1] [2011] 203 IR 1 at [13].
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