Shelley Barrett v UGL Engineering Pty Ltd T/A Callide Power Station
[2024] FWC 1280
•16 MAY 2024
| [2024] FWC 1280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shelley Barrett
v
UGL Engineering Pty Ltd T/A Callide Power Station
(U2024/3545)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 16 MAY 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Ms Shelley Barrett (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, UGL Engineering Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 7 May 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from her employment with the Respondent took effect on 20 February 2024. The Applicant lodged her unfair dismissal application in the Commission on 28 March 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 12 March 2024. The application was therefore filed 16 days 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).
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]
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.
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 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
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]
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]
Relevant facts
The Applicant provided the following explanation for her delay in her unfair dismissal application form:
“Was informed by Phil Haegens the project manager when I voiced my concern at lack of support, he thought Shelley didn’t receive fair and just representation, he said he was going to talk to someone else about it, this dragged on and never happened, gave him a chance. Also went to Rockhampton office but it was closed, took photo of the notice on the door Date was Friday 22nd March 2024 address is 36 East street Rockhampton QLD 4700, was really disappointed at this outcome as we wanted to talk to someone face to face, see attached photo. Tried ringing on multiple occasions waited on phone for half hour and never had time to stay on the phone as working.”
The Applicant’s husband also provided the following submission to support the Applicant’s request for an extension of time:
“To whom it may concern, the question was asked to supply supporting documentation on behalf of Shelley Barrett, most of the documents have already been passed on, the matter was raised to the project manager about the handling and lack of time for Shelley to organise her case or even have it heard fairly, he said he would talk to someone about it, this never happened so after waiting and no action Shelley decided this was the correct avenue to take, she tried ringing fwc to no avail on hold and the line kept telling her due to increased activity at fwc to go on line, she went better than that and went to 36 East Street Rockhampton when she could get there and it was shut, there is a photo of the sign on the door, that is when she emailed, she wasn’t comfortable at first as she is a face to face person. Shelley has never been involved in anything such as this in her whole time in the industry as Graham Grace had nothing to do with the incident till after the fact(see Nathan Paeholke’s statement which was requested by Shelley and never happened by UGL investigator, I as Shelley’s support person had no influence towards this statement as it wouldof beena conflictof interest, his supervisor Niel Riethmuller on Nathan’s request to tell it like it was delivered the paperwork so Nathan could fill out in private, then Neil returned it. There are conflicting stories by other so called threatened crew members. Graham Grace took the initiative on himself to initiate the aggressive behaviour on a fellow female worker trying to do her job and make a living, he left the job not long after, he already knew he was going, departing gift was his agenda. This episode has been extremely traumatic for Shelley, loss of self-esteem & confidence in herself, also the stress related to future employment in the construction industry, not to mention the financial loss suffered and the potential future financial loss due to this unfortunate incident. Straight after safety investigation hi vis vests became mandatory for all spotters around hi risk activities.”
The Applicant also explained in her oral submissions to the Commission that she called Ms Stoddard, People & Culture Manager of the Respondent, in the week after her dismissal to request information about the alleged incident and witnesses to it.
The Applicant does not suggest that Mr Phil Haegens, Project Manager, undertook or promised to respond to the Applicant in a particular timeframe. That Mr Haegens did not respond to the Applicant or her husband in a particular timeframe did not provide the Applicant with a reasonable or acceptable explanation for the delay in filing her application. Similarly, attending the office of the Fair Work Ombudsman in Rockhampton on 22 March 2024, some 10 days after the 21 day period expired, does not support an argument that the Applicant had a reasonable or acceptable explanation for the delay in filing her application. Nor does attempting to call the Commission and not having time to wait on the line to speak to somebody about an unfair dismissal application. The process of preparing an unfair dismissal application is straightforward and has been designed to be completed by lay applicants.
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing her unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 28 March 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the day it took effect and 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
It is apparent from the information set out in paragraphs [12] to [14] above that the Applicant took some action to dispute her dismissal. This provides some weight to the Applicant’s argument that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant 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. 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.
The Applicant was dismissed for serious misconduct. The alleged serious misconduct involved threatening behaviour, swearing and aggressive behaviour. The Applicant denies making threats and calling her colleague a “cunt” but admits calling Mr Graham Grace “a fuckhead”. The Applicant says that Mr Grace was the aggressor and instigator of the verbal altercation which resulted in the Applicant “trading words” with Mr Grace. The Applicant says she felt threatened by Mr Grace’s aggressive attack on her character. The Applicant also points to what she considers was procedural unfairness in the investigation undertaken by the Respondent.
The Applicant commenced employment with the Respondent on 18 October 2023. She was dismissed on 20 February 2024. Accordingly, at the time of the Applicant’s dismissal, she had not been employed for the minimum employment period (6 months). It follows that the Applicant is not protected from unfair dismissal.
Having regard to all the circumstances, including the fact that the Applicant was not employed for the minimum employment period and admits to calling Mr Grace “a fuckhead”, I consider the merits of the Applicant’s unfair dismissal application to be weak. This weighs against a conclusion 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.
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
Taking into consideration 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. Although the Applicant took some action to dispute her dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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:
Mr Edge appeared for the Applicant.
Ms Swift appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
7 May.
[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]
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