Tarana Khan v Red Energy Pty Ltd
[2023] FWC 1043
•3 MAY 2023
| [2023] FWC 1043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tarana Khan
v
Red Energy Pty Ltd
(C2023/1459)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 3 MAY 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection -application made 30 days outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – application dismissed.
On the 15 March 2023, Ms Tarana Khan (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 23 January 2023 by Red Energy Pty Ltd (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raises a jurisdictional objection to the Application, that being it was made outside the statutory time period of 21 days (the jurisdictional objection).
Following allocation of the matter to my Chambers on 11 April 2023, Directions were subsequently issued to the parties for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objections was listed for 3 May 2023. At the hearing Ms Khan appeared on her own behalf and gave evidence. The Respondent was represented by Ms A Costi of the Respondent.
Background and Evidence
On 25 July 2022, the Applicant commenced employment with the Respondent as a Customer Solutions Consultant.
On 23 January 2023, the Applicant was notified by the Respondent during an on-line meeting of the termination of her employment within the 6-month probationary period. The Applicant received one week’s pay in lieu of notice and the dismissal took immediate effect on 23 January 2023. The Termination of Employment Letter relevantly stated as follows;
“…………….
As advised today, we have elected to terminate your employment with Red Energy within the probationary period specified in your employment agreement, Monday 23 January 2023. In line with clause 9.1 of your employment agreement, you will receive 1 week payment in lieu of notice.
As discussed, this decision was based on your continued inability to meet our performance expectations within the probationary period, and a number of internal and external complaints regarding your interactions with customers and other team members.
…………….”
In the Applicant’s Form F8, she described the circumstances that led to her dismissal and the actions of the Respondent. The matters referred to by the Applicant include that;
she had worked from home throughout her employment by the Respondent;
had never met her manager face to face or attended the office;
her manger had taken a dislike to her from the start of her employment;
requests made by her for additional training were not met; and
a customer complaint regarding an exchange with the Applicant was escalated to her manager resulting in the Applicant receiving negative feedback from her manager.
The Applicant also claims that prior to her dismissal she had sought assistance through the Employee Assistance Program (EAP) in relation to what she believed was ‘toxic behaviour’ of her manager and had also reached out to HR for assistance. In attending the meeting held on 23 January 2023, she believed that the issues of concern could be resolved but was told during the meeting that she was not ‘fit for the role’ and ‘was not meeting requirements’. She also states that she was told there had been various complaints from her colleagues about her and that the Respondent’s concerns regarding her performance had never been raised with her prior to dismissal.
The Applicant states that in the period prior to and following her dismissal she suffered from an ongoing respiratory infection which affected her ability to file the Application within the statutory time period. She produced a medical certificate from Dr Stephen Williams dated 19 April 2023[1] which stated that in the period from 10 December 2023 to 10 March 2023 she had been a patient at Dr Williams’ clinic and had been assessed and treated for a “persistent chest infection complicating chronic obstructive pulmonary disease”. The medical report also stated that during this period the Applicant was “frequently unwell and unable to work or perform other similar tasks”.
During cross-examination, the Applicant confirmed that while she was suffering from a respiratory illness from at least early December 2022, she did not take any personal leave in the period between 10 December 2022 and the date of her dismissal on 23 January 2023. She claimed however that her illness deteriorated following her dismissal and that she was at times bedridden and consequently unable to focus on researching, then making the Application. The Applicant conceded however that she became aware of her rights to pursue an application to the Fair Work Commission (the Commission) for a remedy for her dismissal when researching her options during February 2023.
The Applicant also states that she had caring responsibilities for her partner Ramin Farhood for a six-week period following an injury suffered by him on 15 January 2023. A Discharge Summary[2] from Western Health for Mr Farhood was provided in evidence which revealed that Mr Farhood had received a laceration to his left forearm and a 15% brachioradialis tear that needed to be repaired. The Discharge Summary further indicates that Mr Farhood was discharged from the hospital the same day of admission on 15 January 2023, was required to wear a sling for two weeks and leave the dressing dry and intact until a scheduled review.
The Applicant confirmed during cross-examination that Mr Farhood was mobile following his injury but did require some assistance with normal daily activities and because of their financial position following her loss of employment, Mr Farhood returned to work on or about 30 January 2023. She also confirmed that in the period between the date of Mr Farhood’s injury on 15 January 2023 and her dismissal on 23 January 2023 she did not take any time off work and was able to combine her normal work from home commitments with her caring responsibilities for Mr Farhood.
On 8 March 2023, the Applicant filed an incomplete unfair dismissal application with the Commission (U2023/1798). The Applicant confirmed in cross-examination that during a discussion with a staff member of the Commission on 9 March 2023 she was made aware that her unfair dismissal application was liable to be dismissed because she had not met the six months minimum employment period. She was also made aware that the unfair dismissal application had been made outside the 21-day period. The Applicant confirmed during her conversation with the Commission staff member on 9 March 2023 that she wished to discontinue her unfair dismissal application. The Applicant was unable to properly explain why it then took a further week to file the Application following the withdrawal of her unfair dismissal application.
Statutory framework
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.
It is uncontested that the Applicant’s dismissal took effect on 23 January 2023. Therefore, the period of 21 days ended at midnight on 13 February 2023 and as the Application was made on 15 March 2023, it was filed 30 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2) of the Act.
The Act allows the Commission to extend the period within which a general protections dismissal dispute application can 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.[3] 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.[4]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 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 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like 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 turn to consider these matters in the context of the Application.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 February 2023. The delay is the period commencing immediately after that time until 15 March 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[7].
The Applicant contends that the delay in the filing of the Application is explained by the medical condition she suffered from between 10 December 2022 and 10 March 2023 and her caring responsibilities for her partner Mr Farhood after he injured himself on 15 January 2023.
Turning firstly to the Applicant’s medical condition, Dr Williams’ medical report states that between 10 December 2022 and 10 March 2023 the Applicant was frequently unwell and unable to work or perform other similar tasks. The report does not indicate the days or periods between 10 December 2022 and 10 March 2023 that the Applicant was debilitated to the point of being unable to attend work or perform other similar tasks. In any case, the statement by Dr Williams is simply not borne out by the Applicant’s own evidence that in the period from 10 December 2022 to 23 January 2023 she did not take any personal leave. I consequently approach with caution the Applicant’s claims of being so disabled in the wake of her dismissal as to have been unable to prepare and file the Application in circumstances where she was able to deal with her normal work duties in the period between 10 December 2022 and 23 January 2023 despite her reported medical condition.
The Applicant claims however that her medical condition deteriorated following her dismissal to the point she was bedridden. However, Dr William’s report does not identify that her condition deteriorated at the point of the Applicant’s dismissal and nor does it identify a point at which the Applicant may have recovered sufficiently to prepare and file the Application. In these circumstances, there is insufficient evidence before me that establishes the Applicant was unable to complete the Application earlier than she did. The Applicant herself concedes that she researched her options to pursue a remedy for her dismissal during February 2023 which indicates that she had the presence of mind and capacity to explore her options at a point much earlier than the date the Application was filed.
With respect to the Applicant’s caring responsibilities, there is no evidence before me that those responsibilities were so overwhelming that she was unable to prepare and lodge the Application during the 21-day period following her dismissal. I accept that the Applicant’s partner sustained an injury to his left arm which required medical treatment on 15 January 2023. The fact that the Applicant’s partner was discharged from the hospital on the same day of admission and was then required to use a sling for a two-week period following his discharge is not probative of him requiring 24-hour care by the Applicant. In fact, the evidence from Ms Khan confirmed that her partner was ambulant during his recovery period and returned to work on or about 30 January 2023. Finally, it is telling that the Applicant’s partner sustained his injury a week before the Applicant’s dismissal, and she continued to perform her normal duties for the Respondent during the week following her partner’s injury despite her caring responsibilities.
That the Applicant was able to perform her normal duties for the Respondent in the week immediately following Mr Farhood’s injury and that Mr Farhood returned to work on or about 30 January 2023 tells against the Applicant’s claim that her caring responsibilities were such that in the wake of her dismissal she was unable to file the Application earlier than she did. Nor can the Applicant’s claims of significant caring responsibilities be easily squared with her evidence that she was bedridden due to her illness following her dismissal. I am consequently not persuaded that the Applicant’s caring responsibilities explains any of the delay in the filing of the Application.
The Applicant was also unable to explain why having been alerted by a Commission staff member on 9 March 2023 that in filing an unfair dismissal application she had filed the wrong application which she then immediately withdrew, why she then took a further week to file the Application.
Having regard to all the above circumstances, I do not accept the explanations provided either individually or collectively acted to prevent the Applicant from lodging the Application on time or at a time earlier than the date on which it was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
As stated above, the Applicant filed an incomplete unfair dismissal application on 8 March 2023 and then withdrew that application on 9 March 2023. I note the unfair dismissal application was also filed outside the 21-day statutory time period. No other action was taken by the Applicant to contest her dismissal. The fact that the Applicant filed and then withdrew an unfair dismissal application leads me to conclude that such action to contest her dismissal does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Application was filed 30 days outside of the 21-day period. While such a delay is not insignificant, there is no material before me to suggest that such delay would cause significant prejudice to the employer. This factor weighs neutrally in my consideration.
Merits of the application
The Act requires me to take into account the merits of the Application in considering whether to extend time. The Applicant contends she was subject to bullying behaviour by her manager during her employment with the Respondent and that following her raising concerns with HR regarding that behaviour, the Respondent terminated her employment. The Respondent rejects the assertions of the Applicant as to the reasons for her dismissal and states that the Applicant’s dismissal within the probationary period was based on performance concerns.
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 an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case 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 a general protections 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. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because 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 s 366(2) of the Act. Accordingly, the application for a general protections dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
T Khan, Applicant.
A Costi for the Respondent.
Hearing details:
2023.
Melbourne:
May 3.
[1] Exhibit A1, Medical report from Dr Stephen Williams, dated 19 April 2023
[2] Exhibit A2, Discharge Summary for Ramin Farhood from Western Health, dated 15 January 2023
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Ibid at [40].
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