Tamara Strudwick v BP Ardrossan
[2023] FWC 296
•21 FEBRUARY 2023
| [2023] FWC 296 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tamara Strudwick
v
BP Ardrossan
(U2023/725)
| COMMISSIONER PLATT | ADELAIDE, 21 FEBRUARY 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Ms Tamara Strudwick a further period for her unfair dismissal application (Application) to be made against BP Ardrossan (BPA or the Respondent).
At the conclusion of the hearing on 21 February 2023, I dismissed Ms Strudwick’s unfair dismissal application. These are the reasons for my decision.
Background
Ms Strudwick has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with BPA which her form F2 unfair dismissal application advised took effect on 15 December 2022. Ms Strudwick has contended that the dismissal occurred on 15 December 2022, or at the latest, 23 December 2022.
The application was lodged on 30 January 2023 (but was incomplete). It was lodged in a completed form on 2 February 2023. The Application is, on any measure, out of time.
On 2 February 2023, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 21 February 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.
On 7 February 2023, the Respondent lodged a form F3 Employer Response which indicated that the Applicant was not dismissed. This decision only deals with the extension of time issue.
Hearing
A hearing was conducted by way of telephone conference on 21 February 2023. A sound file record of the telephone conference was kept. Ms Strudwick represented herself at the hearing, whilst Mr Bhimavarapu represented BPA.
A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Ms Strudwick gave evidence at the hearing. Her position is summarised as follows:
· Ms Strudwick normally worked 5 days per week at BPA for a minimum of 4 hours per day. Sometimes Ms Strudwick worked with a manager.
· On 12 December 2022, she left the workplace prior to the completion of her shift.
· Ms Strudwick did not work after that date.
· The Respondent did not contact Ms Strudwick after he last shift. Ms Strudwick contends that she attempted to contact the Respondent but that they would not talk to her.
· On 16 December 2022, Ms Strudwick sent a text message critical of a person who she worked with.
· On 23 December 2022, she became aware that another person had been employed. Ms Strudwick considered that person was doing her work.
· Ms Strudwick contended that the dismissal took effect on either 12 December 2022, 15 December 2022 or at least 23 December 2022.
· Ms Strudwick signed her application on 8 January 2023 but did not lodge until 30 January 2023. Owing to the omission of a fee waiver documentation, her completed application was not received until 2 February 2023.
· Ms Strudwick suffered stress from the dismissal but did not seek medical assistance.
· Ms Strudwick suffered financial distress as a result of the dismissal.
· Ms Strudwick was not aware of the Fair Work Commission until she was advised by a friend, nor was she aware of the time limit associated with unfair dismissal applications.
BPA relied on its submissions and further contended that Ms Strudwick had left her employment on her own accord and was not dismissed.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 similar position.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]
On the information before me (and putting the Applicant’s case at its highest), I find that the employment ended on 12 December 2022 but that the Applicant was not aware of the cessation of employment until 23 December 2022.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
It is widely accepted that ignorance of the time limit is not an acceptable reason for the delay. Equally, it is accepted that it is not exceptional for a person to be stressed as a result of a dismissal, nor is it exceptional to suffer financial distress as a result of a dismissal.
Whilst I recognise that there was no dismissal letter (the Respondent contends Ms Strudwick affectively abandoned her employment), Ms Strudwick’s inaction after 23 December 2022 was not a result of exceptional circumstances. Ms Strudwick was unable to explain why her form F2 application was dated 8 January 2023 yet was not lodged for a further 22 days.
In my view, the Ms Strudwick has not provided a credible reason for the delay in filing the application. This factor weighs against of the granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
I have found that Ms Strudwick was not aware of the dismissal until 23 December 2022.
This factor weighs in favour of a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]
I accept that Ms Strudwick tried to contact the Respondent between 13 and 23 December 2022 but was unable to engage in a conversation with them. Whilst this may be true, the Applicant did not file for a further 38 days (assuming that she filed on 30 January 2023). I have already noted that the F2 application appears to have been completed on 8 January 2023.
This factor is a consideration slightly in favour of the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[11] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[12]
A long delay gives rise “to a general presumption of prejudice”.[13]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[14]
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[15] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[16] reflecting this decision will be issued.
COMMISSIONER
Appearances:
Ms Strudwick, the Applicant.
Mr Bhimavarapu for the Respondent.
Hearing details:
2023.
Adelaide (by teleconference):
February 21.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
[7] 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]
[8] [2016] FWCFB 349
[9] [2018] FWCFB 3288 at [35]-[45]
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[11] Ibid
[12] Ibid
[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
[14] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
[15] [2016] FWCFB 6963
[16] PR750953.
Printed by authority of the Commonwealth Government Printer
< PR750208>
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