Sonnie Kaluwin v Heritage and People's Choice Limited
[2023] FWC 787
•31 MARCH 2023
| [2023] FWC 787 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sonnie Kaluwin
v
Heritage And People’s Choice Limited
(U2022/12397)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 MARCH 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Ms Sonnie Kaluwin (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a dismissal of her employment by Heritage and People’s Choice Limited (the Respondent).
The Applicant began her employment on or around 25 November 2019. It is uncontentious that the Respondent terminated the Applicant’s employment on 6 September 2022. The application was lodged with the Commission on 30 December 2022.
Directions were issued for the jurisdictional hearing on 30 January 2023. The Applicant filed her submissions on 6 February 2023. The Respondent filed their submissions on 13 February 2023. The Applicant provided submissions in reply on 13 February 2023. The Applicant then provided further submissions on 26 February 2023. The jurisdictional hearing was held by telephone on 1 March 2023. Ms Kaluwin appeared on her own behalf. Mr Anthony Johns, Manager of Employee Relations appeared on behalf of the Respondent.
Preliminary matters
Respondent’s name
At the initiation of the application, the Respondent’s legal name was Heritage Bank Limited. Mr Johns requested that the name of the Respondent be changed to reflect the Respondent’s new legal name, being Heritage and People’s Choice Limited. The Respondent confirmed that Heritage Bank Limited had merged with People’s Choice Credit Union as of 1 March 2023. All of Heritage Bank Limited’s legal matters for which Heritage Bank was a participant were transferred to People’s Choice Credit Union. The Applicant did not object to the amendment. Therefore, I accepted the Respondent’s request and have amended the Respondent’s name.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged her application on 30 December 2022. She accepts that her application was made some ninety-four days outside of the 21 days required under s.394(2) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
The Applicant’s submissions
The Applicant submitted the following reasons for the delay:
(a)Batch Mewing Lawyers were assigned by the Commission on 12 September 2022 however, the representative did not make contact within the 21 days.
(b)On 24 November 2022, the Commission sent correspondence informing the Applicant that Batch Mewing Lawyers were no longer meeting with the Applicant and the Commission were attempting to find her a new representative.
(c)The Applicant’s termination required reliable legal guidance.
(d)The Applicant contacted Working Women Queensland (WWQ). They had no capacity to assist due to the public holiday and immediate work demands.
(e)Inability to lodge within the remaining days without confirming valid grounds for a successful unfair dismissal application.
(f)The impact to the Applicant’s reputation.
In summary, the reason for the delay was that she needed legal advice. She considered the matter complex and as she is not a lawyer, she required assistance to realise her unfair dismissal application.
The Applicant provided further oral submissions and explanation of the events from her dismissal to the lodgement of her application.
On 6 September 2022 at 5:00pm, the Applicant was dismissed during a meeting with the Chief Operations Officer and Senior Human Resource Business Partner. At the end of the meeting, she was handed a letter confirming her dismissal.
On 9 September 2022, the Applicant contacted the Commission’s Workplace Advice Service (WAS). WAS confirmed they would attempt to provide the Applicant with a lawyer. The Applicant then called Working Women Queensland (WWQ) and got in contact with Eloise Dalton. Ms Dalton provided the Applicant with the following:
(a)her contact details;
(b)the Commission’s contact details;
(c)an unfair dismissals benchbook;
(d)questions the Applicant needed to answer to ensure it was an actual unfair dismissal;
(e)a blank copy of the Form F2; and
(f)a reminder that the Applicant had a 21-day time limit to lodge her application and if she failed to submit within the 21 days, she may be prevented from lodging an application.
On 12 September 2022, she received an email response from WAS. Her request was allocated to Batch Mewing Lawyers. She read out the email which contained the following:
“We are pleased to advise you that a lawyer through the Workplace Advice Service was available to give you free legal advice. A lawyer from Batch Mewing Lawyers will contact you to organise your appointment within two weeks.
…
If you cannot attend your appointment: we receive lots of requests for legal help. Please tell us if you can’t make the appointment by replying to this email.
How can you prepare for your appointment? To help you get the most out of your free legal appointment, we’ve attached a checklist to assist you. It would be helpful for you to gather and review any relevant documents before your appointment. You should read these documents before your appointment so you can answer the right questions that the lawyer may ask you. Please do not send us these documents.
…
Getting the right help for you: the lawyer will advise you on your issue, including which agency can best deal with your issue. A request for legal help from workplace advice service is not an application. Some applications like the dismissal, has a 21-day limit. If you are dismissed and are nearing your 21 days, you should lodge an application with the Commission as soon as possible.”
A contact and employee checklist were also attached to this correspondence.
On or around 22 September 2022 to 27 September 2022, the Applicant had waited two weeks and had not heard from Batch Mewing Lawyers. The Applicant called Basic Rights Queensland (BRQ) and did not speak to anyone. She then contacted WWQ again. They were unable to provide their assistance due to the public holidays.
3 October 2022 was the Queen’s Birthday holiday.
On 24 November 2022, the Applicant received a notification (Reference number: C000-007-533) cancelling her appointment with Batch Mewing Lawyers.
On 25 November 2022, WAS notified the Applicant that they were unable to find an appointment for her.
Throughout December 2022, the Applicant attempted to contact WWQ and other professional services but was unable to gain assistance due to holiday closures.
On 24 December 2022 to 26 December 2022 was the Christmas Break.
On 30 December 2022, the Applicant had been unable to contact any other legal representative. She believed she had a valid unfair dismissal matter and filed her Form F2 application with the Commission.
The Applicant relied on two authorities to advance her submission that legal representation is required. The first is O’Grady v Royal Flying Doctor Service of Australia (South Eastern Section) (O’Grady).[1] The Applicant objected to the Respondent being legally represented in a hearing on a jurisdictional matter. Deputy President Leary determined that legal representation would be granted to both parties for the argument of jurisdiction only. The Deputy President determined that jurisdiction is a legal issue and not a simple factual contest, Representation will allow the matter to be dealt with more efficiently. The Applicant asserts that as this is a jurisdictional hearing, she needed legal representation to deal with the matter.
The other authority the Applicant relies on is Rollason v Austar Coal Mine Pty Ltd (Rollason).[2] Commissioner Stanton determined in an interlocutory proceeding regarding representation that the factual matrix was sufficiently complex to require the granting of representation to the Respondent. As the dismissal concerned a “workplace right”,[3] and the Applicant’s case also applies to a workplace right, the Applicant should be allowed to seek legal advice to assist in making her application.
The Applicant concedes that she did not dispute her termination. She considered it but did not go back to the organisation to dispute it. She asserts that she was told during her meeting on 6 September 2022 that she could seek external advice but not to contact anyone internally regarding her dismissal.
Finally, the Applicant submits that with the merger between Heritage Bank Limited and the People’s Choice Credit Union will give the Respondent a larger legal team and provide further resources to the Respondent to handle unfair dismissal applications.
The Respondent’s submissions
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.
In his evidence-in-chief, Mr Johns corrected two typographical errors in the Respondent’s Submission – Jurisdictional objection. The first was at paragraph [47], sub-paragraph (d). The relevant sentence was:
“The Applicant was advised of this on 15 August 2022 was provided with the opportunity to provide written reasons why this should occur.”
The sentence is amended to read as follows:
“The Applicant was advised of this on 15 August 2022 was provided with the opportunity to provide written reasons this should not occur.”
(emphasis added)
The second amendment was at paragraph [47], sub-paragraph (f). The relevant sentence in the paragraph was:
“The Respondent considered the Applicant’s reasons why termination of employment should occur and their responses to the Respondent’s concerns.”
The sentence is amended to read as follows:
“The Respondent considered the Applicant’s reasons why termination of employment should not occur and their responses to the Respondent’s concerns.”
(emphasis added)
The Respondent submits that the Applicant failed to discharge her onus in demonstrating exceptional circumstances exist to warrant the Commission exercising its discretion pursuant to s.394 of the Act.
The Respondent identified two limbs in the Applicant’s submissions that they contend. The first being their inability to access legal advice for an extended period of time due to reasons outside of their control. The second being their apparent inability to find alternate employment due to being dismissed. Neither limb individually or in combination establish an acceptable or credible reason for any part of the delay.
The Respondent relies on Mr Keith Long v Keolis Downer T/A Yarra Trams (Long).[4] In Long, the Full Bench stated:
“[60] Further, the Applicant’s submission put is contrary to principle. An applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by. As the Respondent put it:
‘Mr Long sitting on his hands for several weeks while waiting for JN Zigouras lawyers (not yet his representatives) to call him back is an omission by Mr Long to take further steps, and therefore it is Mr Long’s inaction which has caused the delay in him obtaining legal representation’.”
The Applicant’s actions are central to consideration of the reasons for the delay. It is evident that the Applicant did not pursue the provision of legal advice diligently or with any vigour. It appears that the Applicant passively waited for contact to be made with little apparent regard for the time limit on lodging their application.
The Applicant was put on notice in the emails of 9 September 2022 and 12 September 2022 of the importance of lodging their unfair dismissal application within the 21-day time limit. The email dated 12 September 2022 from WAS specifically informed the Applicant that a request for advice was not an application. Further, it ought to have been apparent to the Applicant that an application could be lodged without the benefit of legal advice.
Therefore, the claim that she required legal advice should be rejected. These did not prevent the Applicant from lodging their unfair dismissal application prior to 28 September 2022. This also did not stop her from lodging her application without the benefit of legal advice on 30 December 2022.
Further, the Applicant’s apparent reliance on their inability to find alternate employment as an acceptable or credible reason for the delay is misplaced. It is not uncommon or unusual for dismissed employees to have difficulty in securing alternate employment following dismissal. By its very nature, the adverse effect of dismissal in finding alternate employment would take some time to be realised. In the present matter, it appears that this occurred at some stage after 27 September 2022 and does not assist the Applicant.
The Applicant’s failure to provide an acceptable or credible reason for any part of a substantial ninety-four-day delay in lodging their unfair dismissal application should weigh heavily against a finding of exceptional circumstances.
The Applicant was dismissed on 6 September. She met with Mr Daniel Dredge (Chief Operations Officer) and Ms Susan Jackson (Senior Human Resources Business Partner). During that meeting, the Applicant was verbally informed of their dismissal and that it would take effect on 6 September 2022. Therefore, the Applicant had the benefit of the full 21-day time period, and this should weigh against a finding of exceptional circumstances.
The Applicant did not take any action that put the Respondent ‘on notice’ that the Applicant was actively contesting their dismissal prior to the Applicant lodging an unfair dismissal application.
Regarding prejudice to the employer, the Respondent submits that it would be forced to expand resources and time in defending an unfair dismissal application lodged well outside of the 21-day time limit. The Respondent relies on Rodney Price v CDC Ballarat Pty Ltd (Price)[5] and Mohammed El Samman v Sydney Trains (Sydney Trains).[6] In Sydney Trains, a seventy-nine-day delay was found to be “beyond that ordinarily encountered by an employer faced with an unfair dismissal application filed within time”. The subsequent prejudice was considered to weigh against a finding of exceptional circumstances.
Further, the Respondent submits that the merger of the Respondent with People’s Choice Credit Union on 1 March 2023 would also prejudice its ability to defend the substantive unfair dismissal application. If it was lodged in time, the matter was likely to be resolved prior to the merger. In reply to the Applicant’s contention that the merger would allow for more resources to handle an unfair dismissal application, the Respondent asserted that the Chief Operations Officer and the Senior Human Resources Business Partner are integral to the merger and would not be easily available to give evidence at a hearing.
Finally, regarding fairness between the person and other persons in a similar position, the Respondent submits that there are no other employees in a similar position to the Applicant.
Therefore, the other factors under s.394 of the Act should be weighed against or be given neutral weight in a finding of exceptional circumstances.
Consequently, the Applicant’s unfair dismissal application should be dismissed.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(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 like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[7] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[8] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.
Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[9] or a reasonable explanation.[10] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[11] the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[12]
The Applicant’s two main reasons she was unable to lodge her application in time was that she was seeking legal advice to make a valid claim and that she could not find alternative employment because of damage to her reputation.
I am not satisfied that the explanation provided by the Applicant sufficient reason to meet the high threshold of establishing exceptional circumstances.
The authorities of O’Grady and Rollason provided by the Applicant to support her claim that she required legal assistance relied were not on point. These decisions pertain to permission to appear under s.596 of the Act. Therefore, these are not relevant to the issue of exceptional circumstances. In this case, I am persuaded by the Respondent’s reliance of Long to support their submission that waiting for legal representation to make an unfair dismissal application is not exceptional. The Applicant was informed of the importance of lodging within the 21-day time limit on 6 September 2022 and 9 September 2022 and still waited until 30 December 2022 to file her application.
Regarding the Applicant’s submission that the delay was also caused by her inability to find alternate employment is also not exceptional. In this instance, I accept the Respondent’s contention that this is not exceptional and any damage to reputation appeared to have occurred after the initial 21-day time limit.
In considering the totality of the matters raised by the Applicant, on balance I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of her dismissal on 6 September 2022 by way of a meeting with the Chief Operations Officer and a Senior Human Resources Business Partner. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant noted that she did not dispute her dismissal with the Respondent. Therefore, I consider this factor to not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made two submissions in relation to this factor. The first being that the delay is beyond that which should normally be considered by an employer. The second being that the Respondent cannot afford the extra allocation of resources due to currently undergoing a merger with People’s Choice Credit Union.
The Respondent relied on Price and Sydney Trains. I note that in Price, Commissioner Lee determined that a long delay does give rise to a general presumption of prejudice.[13] However, with the added prejudice of the merger between Heritage Bank Limited and People’s Choice Credit Union, I am persuaded that there is sufficient prejudice.
The Applicant’s assertion that the Respondent now has further resources to handle an unfair dismissal application has legs. However, given the lateness of the delay, and the Respondent’s answer that the key players who are required to give evidence are integral to the merger, I am satisfied that there is sufficient prejudice to consider this factor to not weigh in favour of an extension of time.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[14] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[15]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[16]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I Order that the application be dismissed.
DEPUTY PRESIDENT
[1] [2010] FWA 1143 at [25]–[29] per Leary DP.
[2] [2010] FWA 4863 at [18]–[20] per Stanton C.
[3] Ibid at [2].
[4] [2018] FWCFB 4109 at [59]–[63].
[5] [2020] FWC 3390 at [16].
[6] [2022] FWC 2778 at [24]–[25].
[7] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[8] [2019] FWC 25.
[9] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[10] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[11] [2018] FWCFB 901 at [39].
[12] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[13] [2020] FWC 3390 at [16].
[14] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[15] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[16] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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