Tahlia Taverna v The Trustee for Solomos Family Trust
[2023] FWC 3144
•29 NOVEMBER 2023
| [2023] FWC 3144 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tahlia Taverna
v
The Trustee For Solomos Family Trust
(U2023/10292)
| COMMISSIONER CIRKOVIC | MELBOURNE, 29 NOVEMBER 2023 |
Application for unfair dismissal remedy – application made outside of statutory time frame – circumstances not exceptional - application dismissed.
This decision concerns an application by Ms Tahlia Taverna (Applicant) for an unfair dismissal remedy (application) pursuant to s.394 of the Fair Work Act 2009 (Act).
The matter was listed for hearing on 28 November 2023. The Notice of Listing and subsequent correspondence regarding the hearing were sent to the same email address used by the Applicant throughout the matter to file her material and correspond with the Commission. Despite my Associate making four attempts to contact the Applicant by telephone and leaving a voicemail message asking the Applicant to urgently contact chambers, the hearing did not proceed due to the Applicant’s non-attendance. Following this, I sent correspondence to the parties requesting that the Applicant provide a reason for her non-attendance at the hearing. I also indicated in that correspondence that I considered the matter was capable of being dealt with on the papers based on the written submissions filed by the parties. I directed the Applicant to reply to that correspondence by 12.00pm on 29 November 2023.
The Applicant failed to respond to the correspondence by the midday deadline. I note that this correspondence was sent to the Applicant’s usual email address. There is nothing before me to suggest that the Applicant’s correspondence with the Commission prior to 28 November 2023 has not been received. On 29 November 2023 at approximately 1.51pm, my Associate attempted to contact the Applicant on the phone number provided to the Commission and left a voicemail asking the Applicant to urgently contact chambers. The Applicant has failed to respond to that correspondence. The Respondent consents to the matter being determined on the papers. In light of the Applicant’s failure to respond and the Respondent’s consent, I have determined the application on the material before me.
The Applicant submits that her employment with The Trustee For Solomos Family Trust (Respondent) was terminated with effect from 15 September 2023. 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 Fair Work Commission (Commission) allows pursuant to s 394(3).
It is not in dispute that the Applicant was terminated effective 15 September 2023. The unfair dismissal application was lodged at 4.39pm on 19 October 2023. As the Applicant was terminated on 15 September 2023, the last day to lodge the application was 6 October 2023, and was therefore lodged 13 days out of time. 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 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.
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 now consider these matters in the context of the Application.
Reason for the delay
The delay required to be considered in section 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]
The Applicant proffers several reasons for the delay in filing her application in her written submissions. These reasons can be distilled as follows:
· She was ‘threatened by a member of staff of this company that if she were to take things further I would be banned from attending the gym as a customer’.
· She was ‘facing extreme stress resulting in the regular consultation of medical professionals’.
· She had to defend herself against false and very serious allegations, resulting in having to report to police and seek a protection order.
· Following her dismissal, she experienced bullying from the Respondent, and was not provided with requested CCTV footage.
· Due to ‘poor mental health’ and ‘having to fight against defamation claims’ made by members of staff of the Respondent, she was not in a sound mental state to submit a claim within the 21-day period.
· She intended on submitting a claim immediately after being notified of her termination, however, was not given a reason for her termination, her case was not heard thoroughly, and she was completely unsupported during multiple attempts to contact the Respondent throughout the course of her employment.
The Respondent submits that a number of the Applicant’s allegations are unsubstantiated and, in any event, do not either, individually or collectively, offer a credible reason for the delay in filing her application.
Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I note that there is no medical evidence before the Commission as to the effect of the Applicant’s stress and poor mental health on her capacity to file her application on time. There is insufficient material before me to make a finding that the Applicant’s stress and poor mental health prevented her from filing her application within 21 days.
I additionally note that the Applicant has not provided any evidence as to any interactions with, or reports to police, nor how they are capable of explaining the 13 day delay in filing her application.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for most of the delay in filing her 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
It is not in dispute the Applicant became aware on 15 September 2023 that she was terminated, effective immediately. Although the Applicant contends that she did not receive a termination letter or a reason for termination, she accepts that she was informed in a Zoom meeting on 15 September 2023 that her termination was effective immediately.
The Respondent submits that the Applicant was informed of her termination immediately on 15 September 2023 in person, and then was emailed a copy of the letter confirming the termination. The Respondent submits that that the email was sent to the same address as the disciplinary meeting invite and Zoom outcome meeting. This email was provided to the Commission.
Although there is some inconsistency in the material as to whether the disciplinary meeting of 15 September 2023 occurred on Zoom or in person, I am satisfied on the evidence before me that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal.
Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[6]
The Applicant submits that she has made verbal enquiries regarding unpaid superannuation and underpayments.
The Respondent submits that the Applicant took no action to dispute her dismissal.
As the Applicant has not taken any action to dispute the dismissal other than lodging an unfair dismissal application. In this matter, I find this factor weighs slightly against exercising my discretion to allow the further period for the applicant to lodge her application.
Prejudice to the employer
Prejudice to the employer will go against a granting of an extension of time.[7]
The Applicant did not provide any submissions on this point.
The Respondent submits that the exercise of discretion to extend the time for filing the Application causes prejudice to the Respondent because of the unnecessary time and costs associated with having to defend it.
I cannot identify any 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 Respondent submits the Applicant was summarily dismissed from her employment on account of her conduct in that she ‘engaged in threatening behaviour towards a customer’.
The Applicant submits that she was harassed, treated unfairly, and that the CCTV footage substantiating the allegations of serious misconduct against her was heavily edited. The Applicant additionally submits that her refusal to unban a friend of the Respondent’s owner from attending the gym ‘played a role in her unfair dismissal’.
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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case 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
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
Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Hearing details:
Matter determined on the papers.
[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].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[7] Ibid
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