Sukhee Choi v HAA Education Pty Ltd t/a the Love Heart Early Education Centre St Ives Chase
[2024] FWC 3115
•12 NOVEMBER 2024
| [2024] FWC 3115 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sukhee Choi
v
HAA Education Pty Ltd t/a The Love Heart Early Education Centre St Ives Chase
(U2024/9891)
| COMMISSIONER SLOAN | SYDNEY, 12 NOVEMBER 2024 |
Application for an unfair dismissal remedy
HAA Education Pty Ltd t/as The Love Heart Early Education Centre St Ives Chase (“HAA”) operates a childcare centre. It employed Sukhee Choi as an Educator.
On 18 July 2024, one of Ms Choi’s co-workers made a report to the director of HAA, Boyang Han, that Ms Choi had placed a cot containing a 9-month-old child into a storeroom. Ms Han subsequently reviewed CCTV footage of the day. The footage did not show the cot being placed into the storeroom. However, Ms Han considered that it showed Ms Choi shaking the child and shaking the cot when the child was in it. Ms Han reported the incident to the NSW Department of Education, the Office of the Children’s Guardian and NSW Police. She also informed the child’s parents.
On 23 July 2024, Ms Han sent an email to Ms Choi, which attached a letter dated that day (“Dismissal Letter”). The Dismissal Letter informed Ms Choi that HAA had decided to terminate her employment effective 27 July 2024. HAA subsequently changed the dismissal date to 30 July 2024.
The dismissal took effect on 30 July 2024.
Ms Choi filed an unfair dismissal application with the Fair Work Commission.[1] Such an application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 20 August 2024, but Mr Choi’s application was filed on 21 August 2024. As a result, Ms Choi requires the Commission to allow her an extension of time to file the application. She applies for such an extension.
HAA opposes Ms Choi being granted an extension of time.
What is the question to be answered?
The Commission may only allow Ms Choi an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account: [3]
a.the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[4] In this case, one day;
b.whether Ms Choi first became aware of the dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Ms Choi being informed of her dismissal, which may account for the delay in filing the application;
c.any action taken by Ms Choi to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time; [5]
d.prejudice to HAA (including prejudice caused by the delay);
e.the merits of the unfair dismissal application. That is, the prospects of Ms Choi succeeding on her claim; and
f.fairness as between Ms Choi and other persons in a like position.
Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[6] Exceptional circumstances may include:
a.a single exceptional matter;
b.a combination of exceptional factors; or
c.a combination of ordinary factors which, when taken together, are seen as exceptional.[7]
The test of “exceptional circumstances” establishes a high hurdle for a person seeking an extension.[8] The onus is on Ms Choi to demonstrate that exceptional circumstances exist.[9]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[10]
Therefore, I need to answer two questions:
a.Do exceptional circumstances exist in this matter, taking into account the criteria at [7] above?
b.If so, should I exercise my discretion to allow Ms Choi an extension of time?
For the following reasons, the answer to both of those questions is yes.
Why I have found the circumstances to be exceptional
I will explain my decision by reference to the criteria at [7] above.
There was an acceptable explanation for the delay
Ms Choi does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]
Ms Choi submitted that the delay was the result of representative error.
These are the relevant facts:
a.On 24 July 2024, Ms Choi’s husband, Richard Lau, sent an email to Executive Law Group, asking whether the firm could assist Ms Choi with an unfair dismissal case.
b.Mr Lau and Ms Choi sent a further email to Executive Law Group on 26 July 2024.
c.Also on 26 July 2024, Executive Law Group wrote to HAA challenging the dismissal. Executive Law Group and HAA exchanged correspondence until 30 July 2024.
d.Kayla Brander, a solicitor with Executive Law Group, sent an email to Mr Lau on 1 August 2024. The email informed Mr Lau that there is a 21-day time limit to make an unfair dismissal claim.
e.Ms Brander sent a further email to Mr Lau on 5 August 2024, stating that Ms Choi had until 21 August 2024 to lodge an unfair dismissal claim.
f.Mr Lau sent an email to Ms Brander on 6 August 2024, which referred to Ms Choi having “till the 20th to lodge”.
g.Mr Lau sent a further email to Ms Brander on 11 August 2024. In that email, Mr Lau instructed Ms Brander to lodge an unfair dismissal claim and to represent Ms Choi in the proceedings. It also raised Ms Choi’s concern that the 21-day time limit may have commenced on the date she received notice of termination (23 July 2024), meaning that the time to commence proceedings would expire on 12 August 2024.
h.Ms Brander responded to Mr Lau’s email on 13 August 2024. In her reply email, Ms Brander twice stated that Ms Choi had until 21 August 2024 to file her unfair dismissal application.
Mr Lau responded to Ms Brander later on 13 August 2024. He stated that he would take Ms Brander’s guidance on the question of the time limit.
j.On 14 August 2024, Ms Brander sent an email to Mr Lau stating that she would provide a draft unfair dismissal application for review “ahead of the deadline on Wednesday 21 August”.
k.Ms Brander sent a draft unfair dismissal application to Ms Choi and Mr Lau late in the evening of 20 August 2024.
l.At 3.17pm on 21 August 2024, Ms Brander sent an email to Ms Choi and Mr Lau attaching a “finalised” unfair dismissal application. The email stated that unless Ms Choi or Mr Lau required further amendments, Ms Brander would file the application at 4.00pm.
m.In an email sent to Ms Brander at 3.54pm on 21 August 2024, Mr Lau confirmed Ms Brander’s instruction to file the application.
The principles that guide the Commission when considering representative error in the context of an application to extend time are well known.[12] Representative error may be a sufficient reason to grant an extension of time. But it is necessary to consider the conduct of the applicant. The Commission will view an applicant who provides clear and timely instructions to a representative, so to enable an application to be filed within time, differently to one who does not.
However, it is not necessary for an applicant to show that they were “blameless” for the delay, beyond establishing that they gave appropriate instructions to their representative in a timely fashion.[13] At the same time, having instructed their representative, an applicant cannot then sit on their hands for an extended period while the prescribed time for filing the application passes by.[14]
Further, error by an applicant’s representative is only one of a number of factors that must be considered by the Commission is deciding whether to allow an extension of time.
Ms Brander submitted that fault for the delay rested with her. She stated that she had miscalculated the date by which the application needed to be filed. That is, she understood that the 21-day period commenced from the day after the dismissal. Consequently, she said that she provided incorrect advice to Ms Choi, on which Ms Choi relied. She expressed the opinion that Ms Choi did not contribute to the delay. She described Ms Choi as being blameless in respect of the delay.
HAA disputed that submission. It pointed to the absence of evidence from Ms Choi and Mr Lau as to the extent to which they relied on Ms Brander’s advice, or why they did not independently take steps to confirm the deadline for filing and instruct Ms Brander accordingly. HAA also pointed to periods in which there was no communication between Ms Choi or Mr Lau and Ms Brander. It was suggested that these periods revealed a failure to instruct Ms Brander in a timely fashion. HAA further observed that Mr Lau appears to have determined that the application had to be filed by 20 August 2024 (the correct date) and there was no evidence as to how the conflict between his understanding and Ms Brander’s advice was resolved.
I do not accept HAA’s submissions. The correspondence between Ms Brander and Ms Choi and Mr Lau reveals several things:
a.Ms Choi (through Mr Lau) instructed Executive Law Group and Ms Brander in a timely manner.
b.Ms Choi (through Mr Lau) was active in providing instructions and seeking advice from Ms Brander. This included advice regarding the time limit for filing the application.
c.Ms Brander repeatedly advised Ms Choi that the deadline was 21 August 2024.
d.Ms Choi relied on that advice. This can be seen in Mr Lau’s email of 13 August 2024, where he stated that he would accept Ms Brander’s advice on the matter.
e.There were periods in which there was no communication between Ms Choi and Ms Brander. However, I do not consider that these suggest that Ms Choi was “sitting on her hands”. I note in particular that on 14 August 2024, Ms Brander told Mr Lau that she would prepare an application and provide it to him and Ms Choi prior to the deadline for filing. That it took her until 20 August 2024 is not the result of Ms Choi’s inaction.
I am satisfied that Ms Choi has provided an acceptable explanation for the delay.
Choi was not informed of her dismissal after it took effect
Ms Choi received one weeks’ notice of her dismissal. This factor is not relevant.
Choi took action to dispute her dismissal
Ms Choi disputed her termination on 26 July 2024, through a letter from Executive Law Group to HAA. The employer was “on notice” of a potential unfair dismissal claim from that time. That supports a finding of exceptional circumstances.
No evidence of prejudice to HAA
HAA effectively conceded that it would not suffer prejudice were I to grant Ms Choi an extension of time. I might be able to infer some prejudice, in that HAA would be denied the benefit of the limitation period.[15] But even were I to find no prejudice, that would not be a factor which of itself would support a finding that exceptional circumstances exist.[16]
I do not consider this factor to be of any significance in this case.
The merits of the unfair dismissal application
For present purposes, it is sufficient for Ms Choi to show that her unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[17] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[18]
HAA led evidence as to the circumstances of Ms Choi’s dismissal. This included CCTV footage of the incident on 18 July 2024. It also included a letter from the NSW Department of Education to HAA, which stated that the incident had involved contraventions of the Children (Education and Care Services) National Law (NSW). That letter reflected a finding by the Department that during the incident the child was “excessively shaken and moved in a cot and isolated in a storage room in an attempt to get her to sleep”. HAA submitted that it would be difficult to imagine a more fundamental breach of the duties of an educator in a childcare centre.
HAA conceded that Ms Choi was not afforded procedural fairness in the dismissal process. However, it contended that the Commission would not find that the dismissal was unfair as a result. Rather, the seriousness of the misconduct outweighed any procedural faults.[19]
Ms Choi did not lead evidence regarding the merits of the case. She relied on the contents of her unfair dismissal application. In that document, she denied having engaged in misconduct and relied heavily on the lack of procedural fairness given to her. She also submitted that the CCTV footage showed another employee of the centre being present at the time of the incident on 18 July 2024 and taking no action to intervene. She stated that this called into question the seriousness of Ms Choi’s alleged misconduct.
The findings of the Department of Education are serious. If sustained, they would appear to provide a valid reason for the dismissal. But the Commission is not necessarily bound to accept those findings. Even were it to do so, it does not inevitably follow that HAA was entitled to dismiss Ms Choi, and certainly not without affording Ms Choi procedural fairness.
HAA conceded that there was “not a lot of procedural fairness”. Ms Choi was first made aware of the allegations against her in the Dismissal Letter, which also informed her that the allegations had been substantiated and that she was dismissed as a result. HAA denied requests from Executive Law Group to view the CCTV footage prior to the dismissal taking effect.
The questions that will ultimately have to be determined are whether Ms Choi engaged in misconduct; if so, whether it was so serious as to warrant her dismissal; and further, whether it warranted HAA effecting the dismissal in the manner it did. Any finding of misconduct may also have a bearing on the remedy that Ms Choi might be awarded.[20] It is not possible for me to determine at this stage how these matters might be determined.
Ms Choi faces some challenges in demonstrating that her dismissal was harsh, unreasonable or unjust. But I cannot conclude that her application is wholly lacking in merit.
Fairness as between Choi and other persons in a similar position
This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]
Ms Choi provided me with no basis on which to find that fairness between herself and other persons in a similar position favours the granting of an extension of time. I am not aware of any other cases before the Commission that might be relevant.
I do not consider this factor to be of any significance in this case.
Conclusions
Having regard to the matters discussed above, I am satisfied on balance that exceptional circumstances exist. The circumstances of this case are out of the ordinary course, unusual, and special. An applicant can reasonably expect that if they engage a solicitor to act on their behalf, their solicitor will know how to determine, and comply with, the 21-day time period.
The representative error offers an acceptable explanation for the delay. The delay is short and causes no prejudice to HAA, which was on notice from 26 July 2024 of the possibility of an unfair dismissal claim being made. The application is not wholly without merit. Further, in the circumstances of this case it is in the interests of justice that Ms Choi be permitted to pursue her unfair dismissal claim.
These matters lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.
Order
I order that the time for Ms Choi to make her unfair dismissal application be extended to 21 August 2024.
COMMISSIONER
Appearances:
Kayla Brander, for the Applicant
Glenn Fredericks, for the Respondent
Hearing details:
2024
Sydney (by video)
1 November
[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). (All legislative provisions referred to in this decision are references to provisions of the Act.)
[2] Section 394(2)
[3] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]
[4] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In this case, the Ful Bench considered the meaning of “exceptional circumstances” in the context of s 394(3), which is relevantly analogous to s 774(2).
[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[9] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[10] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]
[12] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-419. That case was decided in the context of s 170CE(8) of the Workplace Relations Act 1996, which was in significantly different terms to those of s 394(3). However, the Full Bench has confirmed that Clark provides appropriate guidance for the purposes of the Fair Work Act: Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]
[13] Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers[2019] FWCFB 2759 at [17]
[14] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [60]
[15] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J)
[16] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[17] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
[18] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[19] Relying on Siriwardana Dissanayake v Busways Blacktown Pty Ltd[2011] FWA 3549 at [98], confirmed on appeal in Dissanayake v Busways Blacktown Pty Ltd[2011] FWAFB 6487 at [16]
[20] Having regard in particular to s 392(3), noting that Ms Choi does not appear to be seeking reinstatement.
[21] James Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29]
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