Shaydene Castle v Switch Box Pty Ltd
[2024] FWC 1869
•18 JULY 2024
| [2024] FWC 1869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shaydene Castle
v
Switch Box Pty Ltd
(U2024/6275)
| COMMISSIONER WILSON | MELBOURNE, 18 JULY 2024 |
Application for an unfair dismissal remedy - unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed
This decision concerns an application by Ms Shaydene Castle for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Castle’s employment with Switch Box Pty Ltd (Switch Box) was terminated with effect from Friday 10 May 2024. The application was filed in the Fair Work Commission (the Commission) on Wednesday, 5 June 2024.
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 Friday, 31 May 2024. The application was therefore filed 5 days outside the 21-day period. Ms Castle asks the Commission to grant a further period for the application to be made under s.394(3). Switch Box opposes this request.
For the reasons set out below, I am not satisfied on the material before me there are exceptional circumstances in Ms Castle’s case that would allow an extension of time for the filing of her application. It follows that I must dismiss her unfair dismissal application.
A hearing in respect of the application was held by me on 25 June 2024, at which Ms Castle appeared and gave evidence on her own behalf. The Respondent was represented by its Directors, Mr Ben Bevins and Mr Brendan Lamb.
BACKGROUND
Ms Castle was employed by Switch Box for just over a year between 17 April 2023 and 10 May 2024. Her position with Switch Box was as a junior sales representative. Noting that the Respondent’s business is a relatively small employer, employing 26 people at the time of Ms Castle’s dismissal, Switch Box argues that Ms Castle was subject to a series of performance management events from about February 2024 until the conclusion of her employment. It argues that it issued her with a verbal warning before 15 February 2024 which dealt with matters of attitude, lateness, emotional outbursts and days off with no notice. The Respondent also argues that on 19 February 2024, a final warning was issued to Ms Castle.
On 10 May 2024, one of the Directors of the business, Mr Lamb, noticed that product had been ordered and delivered into the company’s warehouse to the value of about $143,000 despite there not being a purchase order raised in the name of a customer or a deposit having been paid. Switch Box is sensitive to such situations as it exposes the company to financial risk in the event the potential customer backs away from the order.
The same day, the Switch Box Directors, Mr Bevan and Mr Lamb, decided to dismiss Ms Castle for serious misconduct taking the view that the order placed for the product was contrary to established practice as well as creating the potential for severe financial risk for Switch Box.
Ms Castle’s evidence on the subject is that, having been told about the problem, she then immediately communicated with the potential customer and obtained a commitment to the order and that it was not until very late in the day that Mr Bevan brought her to a meeting with Mr Lamb. She says that the Directors informed her at the meeting that her conduct amounted to serious misconduct. It was suggested to Ms Castle in the meeting that she could choose whether she wanted to say she had been dismissed or that she had resigned. Switch Box accepted in the hearing conducted by me that they said this, and that Ms Castle was actually dismissed.
As Ms Castle “resigned”, Switch Box treated her employment as having finished the same day, 10 May 2024 and for that reason she was not given any payment in lieu of notice.
Having lost her employment, Ms Castle then experienced severe financial and personal distress, with her evidence being that she became bankrupt.
Ms Castle says she did not expect to be dismissed and the fact that she was, shocked her. She had no time to sort out a new job and when she did make endeavours for new employment, received no call backs. As she lost her only income, she was unable to afford to continue living where she was. She had no family support within Australia. As a result of her financial circumstances, she found that her mobile telephone plan soon ended and that she had no access to the internet meaning that she was unable to apply for jobs or commence an application in the Commission for unfair dismissal. At one point she had to prevail upon a friend for the use of their internet service, at which time she was able to apply for jobs, indicate on LinkedIn that she was available for work, and file an unfair dismissal application.
Ms Castle gave evidence that she first decided to lodge an unfair dismissal application about a week before she actually did so, and that part of the reason for the delay was the absence of access to the internet to lodge the application. Her recollection is that her mobile phone plan renewed towards the end of each month and that, on this occasion, it ended between about the 20th and 30th of May. Ms Castle’s evidence is also that she spent the whole of her time after being dismissed focusing on her financial and living circumstances.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
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”. Exceptional circumstances have been defined as 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.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(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 now consider these matters in the context of the Application.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The Act does not specify whether a particular reason for the delay might tell in favour, or not 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]
The reasons for Ms Castle’s delay in making an unfair dismissal application outside of the statutory time limit are the financial and personal distress that she experienced after being dismissed suddenly. She had not expected to be dismissed and was shocked with the rapidity of an error being discovered and then dismissed the same day. Her financial circumstances, combined with the fact that she was not paid in lieu of notice, meant that she very quickly came under severe financial pressure, requiring her to take immediate steps to deal both with the lack of income and the debts that she carried. Attending to those things took all her available time.
As part of her financial distress, she then found that she was unable to access the internet either to apply for jobs or to make an unfair dismissal application. When she first thought about making an unfair dismissal application, about a week prior to the actual lodgement date of 5 June 2024, she says that she had no access to internet services. As it turns out, the expiry of the statutory time limit was 31 May 2024, slightly less than a week prior to the date on which Ms Castle made her application. By the time of the hearing and as part of her efforts to deal with her personal situation, Ms Castle had returned to New Zealand.
In summary, the explanation put forward by Ms Castle is that she was first shocked by her dismissal and then overwhelmed by its consequences to such a degree that she was unable to contemplate or actually lodge an unfair dismissal application until almost 4 weeks after being dismissed.
In particular, and referable to the period of delay required to be considered by me, namely the 5-day period after the expiry of the statutory time limit, Ms Castle’s explanation is that she had no access to the internet or telephony services and did not have access to those things until she actually lodged the unfair dismissal application.
Taken together, these matters of themselves are not an acceptable explanation for the delay in lodgement from a person who has been dismissed. Many people who are dismissed are surprised or shocked by the fact that it occurred either at all or when it did and the fact that a consequence of the dismissal was the loss of income and thereby financial deprivation is an unfortunately common, if not normal circumstance. While Ms Castle gave evidence as to her circumstances in generality, that evidence did not sufficiently address why those circumstances rose to an absolute inability to file an on-time unfair dismissal application.
The evidence before me about Ms Castle’s internet or telephone access is inconclusive to the extent that it does not identify with any precision the dates when she was without access. Similarly, her statement about bankruptcy is not supported by documentation that would either enable the Commission to verify the assertion, when it occurred in proximity to the Commission’s statutory time-limit, or the extent to which a bankruptcy process overwhelmed other activities and prevented the making of an in-time general protections application.
As I have found Ms Castle has not put forward an acceptable explanation relating to the late filing of her unfair dismissal application, my consideration of this criterion leans against an extension of time being granted to her for the making of her unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
Ms Castle was notified of the dismissal on the same day that it took effect. This is therefore a neutral consideration in my determination of whether there are exceptional circumstances.
Action taken to dispute the dismissal
Other than having made her unfair dismissal application, Ms Castle has not taken any steps to dispute her dismissal by Switch Box.
My consideration of this criterion is that it is a neutral consideration in determining whether an extension of time should be granted for the making of Ms Castle’s application.
Prejudice to the employer
I cannot identify any prejudice that would accrue to Switch Box if an extension of time were to be granted, and none is asserted by the Respondent. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of an extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances in this particular case.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an Applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[4] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the Applicant; or alternatively, whether it appears an Applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[5]
Ms Castle accepts in her submissions that she had been verbally warned about poor performance, however argues she was not provided with any written warnings. She also submits that the circumstances of 10 May 2024 should not be classified as serious misconduct. Ms Castle also argues that the Switch Box Directors were aware when they employed her that she had little experience in the field for which she was employed. She says to the Commission that the unfairness of her dismissal was that she was not provided with any notice of the fact that dismissal was being considered and then was not provided with any payment in lieu of notice.
Switch Box argue that there was a history of poor performance, with a verbal warning together with a final warning, neither of which were heeded by Ms Castle. The Respondents then argue that the events established on 10 May 2024 may only be classified as serious misconduct and that the steps taken by them were appropriate in the context of Ms Castle’s actions and the consequential risk posed for the company
As very little has been filed by either party in respect of the merits of their respective cases, this is a neutral consideration in my overall decision about an extension of time.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal Applicants, whose applications are either currently before the Commission, or have been decided in the past.[6] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[7] There is no material before the Commission that would address this criterion. This matter is therefore a neutral consideration in determining whether there are exceptional circumstances in relation to Ms Castle’s application for an unfair dismissal remedy.
CONCLUSION
After consideration of each of the s.394(3) criteria relevant to consideration of an application for the extension of time, I am not satisfied there are exceptional circumstances that would warrant such an extension. None of the considerations referred to above lean in favour of such a finding.
As a result of this finding, Ms Castle’s unfair dismissal application must itself be dismissed and an order to that effect is issued at the same time as this decision.[8]
COMMISSIONER
Appearances:
Ms Shaydene Castle, for the Applicant
Mr Ben Bevins and Mr Brendan Lamb, for the Respondent
Hearing details:
Melbourne.
8 July.
2024.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[5] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[6] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[7] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[8] PR777084.
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