Shiralee Bothe v Castlemaine Community House
[2020] FWC 5738
•28 OCTOBER 2020
| [2020] FWC 5738 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shiralee Bothe
v
Castlemaine Community House
(U2020/13124)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 28 OCTOBER 2020 |
Application for an unfair dismissal remedy – application filed out of time – application dismissed.
[1] This decision concerns an application by Ms Shiralee Bothe for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act).
[2] On 21 October 2020, following hearing from the parties, the matter proceeded by way of determinative conference.
[3] Ms Bothe contends that her employment with Castlemaine Community House (Respondent) ceased on and from 25 January 2020 1 following an email from the Respondent on 25 January 2020 which stated relevantly, “[t]he Nalderun Executive Committee met yesterday to formalise all staff employment contracts. I regret to advise that there is no position or contract of employment for you in 2020. To this end, please immediately cease all work you are doing at Castlemaine Secondary College. This also means you should not attend at the school in this capacity.”2 The Respondent contends that Ms Bothe’s employment with the Respondent ceased on 31 December 20193 at the expiration of her employment contract. The unfair dismissal application was lodged on 2 October 2020.
[4] 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 section 394(3). At the latest, the period of 21 days ended at midnight on 17 February 2020. 4 The application was therefore filed at least 228 days outside the 21 day period. Ms Bothe seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.
[5] 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. 5 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.6
[6] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 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.
[7] 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.
[8] 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.
Reason for the delay
[9] 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. 7
[10] As identified at paragraph [3] above, the date upon which Ms Bothe’s employment with the Respondent ceased is contested. Two contracts of employment between Ms Bothe and the Respondent have been filed in the Commission. The first is dated 16 December 2018 the term of which is 1 January 2019 to 31 December 2019 (2019 Contract). The second is also dated 16 December 2018 however the term of that contract is 1 January 2019 to 31 December 2021 (2021 Contract). Both contracts are signed by Ms Bothe and the Respondent, although the 2021 Contract is not signed by all parties of the Respondent. Ms Bothe says that the 2021 Contract applied to her employment. The Respondent says that the 2019 Contract applied to Ms Bothe’s employment. For completeness I note that Ms Bothe also relies upon a variation of contract document, 8 dated 7 August 2018, which is stated to apply until 31 December 2021 (Variation). However, at the determinative conference Ms Bothe conceded that the Respondent was not a party to the Variation and the Variation was made between her and her previous employer, Castlemaine Community Health. She also agreed that her employment with Castlemaine Community Health was terminated at the end of 2018. Accordingly, the Variation is not relevant for present purposes.
[11] For the purposes of the extension of time matter currently before me, I do not make any findings as to which contract of employment applied to Ms Bothe’s employment with the Respondent, nor whether Ms Bothe’s employment ended by way of dismissal or otherwise. The Respondent contends that Ms Bothe’s employment ceased on 31 December 2019 upon the expiry of the 2019 Contract. 9 However, it is not disputed that on 25 January 2020, an email was sent from the Respondent to Ms Bothe advising her that she was to immediately cease all work for the Respondent (25 January Email). It is clear that Ms Bothe’s employment with the Respondent ceased by 25 January 2020 at the latest and therefore, Ms Bothe’s application was lodged at least 228 days out of time.
[12] In her materials Ms Bothe says that the reasons for the delay in lodgement were manifold.
[13] Firstly, Ms Bothe says that the cessation of her employment put her in a position where she had “financial issues and received no income for months”. 10 Secondly, Ms Bothe says that she has been disconnected from close friends, indigenous family members and colleagues which put her in a position where she “did not want to deal with it in the medium term”.11 At the determinative conference Ms Bothe’s evidence was that she was in absolute shock by the cessation of her employment and that she “couldn’t deal with challenging the irrationality” of her dismissal prior to October 2020. She says that a combination of COVID-19 related restrictions and the cessation of her employment disconnected her from society, friends and the Aboriginal Community.12 She says that she became “depressed, introverted, [and] emotionally drained” and struggled to survive day to day.13 Thirdly, Ms Bothe says that she engaged the assistance of a friend and barrister, Mr Bill O’Donnell, to assist with mediation between herself and the Respondent. Ms Bothe says that she expected the matter to be resolved within 21 days, however the Respondent was “not willing to respond and assist with us trying to reach some compromise and give me a reason why my contract was not honoured”.14 She says that the mediation attempts went on for “too long”.15 Ms Bothe says that the parties spent “weeks and months” attempting mediation.16 Ms Bothe says that she expected there would be some outcome or compromise as a result of the mediation.17 Ms Bothe also says that her husband is unwell18 and has undergone numerous surgeries between March and September 2020 related to cardiovascular disease.19 Ms Bothe says that on each occasion, her husband ended up in the intensive care unit and there was an issue with one of his operations.20 Ms Bothe says that her husband’s surgeries, having a dependent child at home, being her 17 year old son undertaking Year 12, and financial pressures impacted upon her ability to deal with her “contract not being honoured”.21 Finally, at the determinative conference Ms Bothe said that she was unaware of the time limit that applies to making an application for a remedy for unfair dismissal.
[14] I accept that following the cessation of her employment Ms Bothe suffered financial distress. However, financial distress is an unfortunate consequence of the loss of one’s employment. It is not usual, special or uncommon. I also accept that Ms Bothe was shocked and emotionally drained following the cessation of her employment. However, shock and distress following the cessation of one’s employment are common and understandable reactions. As to Ms Bothe’s asserted depression and other emotional difficulties, Ms Bothe provided no probative evidence of these matters nor any evidence that they precluded her from lodging her application in time. These matters do not provide an acceptable or reasonable explanation for the delay.
[15] Upon being advised by the Respondent on 25 January 2020 that “there is no position or contract of employment for [her] in 2020” 22Ms Bothe almost immediately contacted Mr O’Donnell for assistance.23 Ms Bothe’s evidence is that Mr O’Donnell assisted her on a volunteer basis. It is uncontested that Mr O’Donnell wrote to the Respondent on 27 January 2020 forwarding a copy of the 2021 Contract and stating that he expected it to be honoured.24 It is also uncontested that sometime between 27 January 2020 and 14 February 2020 Mr O’Donnell met with Mr Shaddick, Manager of the Respondent, to discuss the cessation of Ms Bothe’s employment. Mr Shaddick’s uncontested evidence is that Mr O’Donnell arrived without notice or an appointment and Mr Shaddick met with him. Accordingly, it is not the case that this meeting was part of an agreed process to seek to resolve Ms Bothe’s dispute with the Respondent. No resolution was reached as a result of that meeting and Ms Bothe’s evidence is that this was communicated to her by Mr O’Donnell sometime before 14 February 2020 and most likely on the afternoon of the meeting or on the following day. On 14 February 2020 she wrote to Mr Shaddick asserting that the 2021 Contract applied to her employment and seeking reasons why her “contracts have not been renewed” (14 February Letter).25 It is uncontested that Mr Shaddick did not respond to the 14 February Letter and Ms Bothe’s evidence at the determinative conference was that she had no contact with Mr Shaddick or the Respondent after 14 February 2020. Ms Bothe says that after the 14 February Letter she left the matter in “[Mr O’Donnell’s] hands”. In this regard her evidence was that she left a couple of voice messages for Mr O’Donnell in late February 2020 asking him to follow up with the Respondent in relation to the 14 February Letter and spoke to him in early March 2020, again asking him to follow up. However, her evidence is that she doesn’t believe that Mr O’Donnell made any further contact with the Respondent, nor did she engage further with either the Respondent or Mr O’Donnell in relation to the 14 February Letter or the cessation of her employment. Ms Bothe’s evidence is that she had “a couple” of text communications with Auntie Julie McHale (an elder of the Nalderun Executive Committee) during February 2020 and that she hoped that her relationship with Auntie Julie would lead to a resolution of her dispute with the Respondent. However, her evidence was that Auntie Julie ceased those communications “for legal reasons” in late February 2020. Ms Bothe’s evidence at the determinative conference was that by March 2020 she realised she would not be able to resolve her dispute with the Respondent through discussion. Accordingly, on Ms Bothe’s own evidence all communication with the Respondent ceased on 14 February 2020 and by March 2020 she was aware that her dispute with the Respondent would not resolve through discussion. Notwithstanding that, she did not lodge the application for a further seven months, during which she took no steps to engage with the Respondent or Mr O’Donnell further. Accordingly, Ms Bothe’s asserted “mediation attempts” do not provide an acceptable or reasonable explanation for the delay until October 2020 to lodge her application.
[16] Ms Bothe contends that her husband’s ill health and surgeries related to cardiovascular disease were a reason for the delay in lodgement. The medical documentation before the Commission indicates that Mr Bothe was admitted for a day surgery procedure on 27 March 2020 26 and was admitted to Warringal Private Hospital from 13 April 2020 to 16 April 202027 and again from 13 August 2020 to 23 August 2020.28 There is no other probative evidence before the Commission regarding Mr Bothe’s ill health. I accept that Mr Bothe’s hospital admissions and surgeries would have been stressful events for Ms Bothe. However, in my view, given the number, frequency and length of those admissions, I do not consider they provide an acceptable or reasonable explanation for Ms Bothe’s failure to lodge the application for a period of almost (at least) eight months. Further, I do not consider the need to care for and support one’s child through Year 12 to be special, usual or uncommon.
[17] Finally, as to Ms Bothe’s lack of awareness regarding the time limits that apply to the application, it is well established that ignorance of one’s rights is not an acceptable explanation for a failure to lodge on time.
[18] In these circumstances, I do not consider that Ms Bothe has provided an acceptable or reasonable explanation for the not insignificant delay in lodgement of the application. 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
[19] The Respondent submits that the cessation of Ms Bothe’s employment took effect on 31 December 2019 29 with Ms Bothe notified of this on 15 April 2019, upon her signing the 2019 Contract.30 Ms Bothe submits that the dismissal took effect on 25 January 2020 and she was notified of this on that day, by way of the 25 January Email.31
[20] In the circumstances, I consider this is a neutral consideration.
Action taken to dispute the dismissal
[21] It is uncontested that subsequent to the 25 January Email, Ms Bothe took action to dispute her dismissal. It is uncontested that Ms Bothe sought the assistance of Mr O’Donnell to dispute her cessation of employment, 32 that Mr O’Donnell wrote to the Respondent on 27 January 2020 on Ms Bothe’s behalf,33 met with Mr Shaddick sometime prior to 14 February 2020 (most likely in early February 2020) and that Ms Bothe sent the 14 February Letter.34 This weighs in favour of the granting of an extension of time.
Prejudice to the employer
[22] The Respondent submits that it will suffer prejudice as a result of the delay. In addition to the time and cost it will incur in defending the claim if an extension of time is granted, it says that the passage of time will impair the recollections of witnesses. I accept that the delay is of some duration, however I do not consider it is of such a length as to affect the recollection of persons who may be required to give evidence, such that the Respondent would be prejudiced in its ability to defend the application. Further, that the Respondent would be required to defend the application does not, in my view, establish prejudice. Accordingly, I do not consider there is any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.
Merits of the application
[23] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The Act nonetheless requires me to take into account the merits of the application in considering whether there are exceptional circumstances. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed. I do not repeat them here save to say that Ms Bothe contends that her employment was subject to the 2021 Contract, her dismissal was unfair as no reason was provided for her dismissal, she was never given a performance appraisal, and she was given assurances that the 2021 Contract would be honoured. 35 The Respondent contends that Ms Bothe’s employment ceased by effluxion of time upon the expiration of the 2019 Contract36 due to funding limitations.37 The parties accept that the 2019 Contract and the 2021 Contract are both in existence. The Respondent contends that the 2021 Contract was issued to Ms Bothe in error, that she was advised of this by Ms Coff and subsequently issued with the 2019 Contract, which she, Mr Shaddick and Ms Coff then signed. They say that notwithstanding this Ms Bothe subsequently signed the 2021 Contract and provided it to Mr Shaddick, who erroneously signed it. They say that Ms Coff identified that Mr Shaddick had erroneously signed the 2021 Contract and it is for this reason that the 2021 Contract is not also executed by Ms Coff. They submit, therefore, that the 2021 Contract did not apply and that Ms Bothe was not dismissed for the purposes of section 386 of the Act. Ms Bothe strenuously disputes the Respondent’s version of events regarding the provision and execution of the two contracts. She maintains that her employment was governed by the 2021 Contract and that she was therefore dismissed on 25 January 2020.
[24] Having considered the materials filed and heard from the parties at the determinative conference, it is evident that the merits of the application turn on significant contested points of fact which would need to be fully tested under oath. In these circumstances it is not currently possible to make any firm or detailed assessment of the merits. I do not consider the merits of the application to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[25] 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. In relation to this consideration Ms Bothe submitted that the Respondent has a business practice and culture of poor process, a lack of financial transparency and “chop and change” employees’ contractual entitlements at will. She referred to another employee whose employment terms and conditions she asserted had been unilaterally varied by the Respondent on a number of occasions. I do not consider these submissions to be of assistance. The Respondent did not bring any matters to my attention in relation to this consideration nor am I aware of any. I therefore consider this to be a neutral consideration.
Conclusion
[26] Having regard to the matters I am required to take into account under section 394(3), and all of the matters raised by Ms Bothe, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. As 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 section 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
S Bothe on her own behalf
M Shaddick for the Respondent
Hearing details:
2020.
Melbourne (by telephone):
21 October.
Printed by authority of the Commonwealth Government Printer
<PR724011>
1 Exhibit A1 at q.1.4
2 Exhibit A1, Attachment 3
3 Exhibit R1 at q.1.4
4 See Acts Interpretation Act 1901 (Cth) s.36(2)
5 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
6 Ibid
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
8 Exhibit A1, Attachment 2
9 Exhibit R1 at q.3.1
10 Exhibit A2 p.1
11 Exhibit A2 p.1
12 Exhibit A2 p.1
13 Exhibit A2 p.3
14 Exhibit A2 p.1
15 Exhibit A2 p.1
16 Exhibit A1 at q.1.5
17 Exhibit A2 p.3
18 Exhibit A2 p.1
19 Exhibit A2 p.3
20 Exhibit A2 p.4
21 Exhibit A2 p.4
22 Exhibit A1, Attachment 3
23 Exhibit A1, Attachment 4; Exhibit A3 and A4
24 Exhibit A1, Attachment 5; Exhibit A6
25 Exhibit A7
26 Exhibit A8
27 Exhibit A9
28 Exhibit A10
29 Exhibit R1 at q.1.4
30 Exhibit R1 at q.1.3
31 Exhibit A1 q.1.3 – 1.4
32 Exhibit A4 and A5
33 Exhibit A6
34 Exhibit A7
35 Exhibit A1, q.3.2
36 Exhibit R1 at q.3.1
37 Exhibit R1 at q.3.2
0
1
0