Tarryn Van Romburgh v S. C. Johnson & Son Pty Ltd
[2023] FWC 376
•15 FEBRUARY 2023
| [2023] FWC 376 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tarryn Van Romburgh
v
S. C. Johnson & Son Pty Ltd
(U2023/430)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 FEBRUARY 2023 |
Application for an unfair dismissal remedy – application filed four days late – request for an extension of time – no exceptional circumstances – application dismissed.
Introduction
On 16 January 2023, Ms Tarryn Van Romburgh (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent employer to the Application is SC Johnson & Son Pty Ltd (Respondent).
Whilst there is a dispute between the parties as to whether the Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act), there is no dispute between the parties that the Applicant’s cessation of employment with the Respondent took effect on 22 December 2022, and that she was notified of her cessation of employment in writing on that date.[1]
In accordance with s.394(2)(a) of the Act, the Applicant should have filed her Application by 12 January 2023 to be within the 21-day time period. It follows that the Applicant has filed her Application four days late, or 25 days after her dismissal took effect.
An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 4 days outside of the statutory 21-day period, it is necessary that I determine whether to extend the time for the filing of the Application under s.394(2)(b) and (3) of the Act.
Statutory time limits are set down in legislation for good reason, and the starting point is they should be complied with.
At the hearing, the Applicant appeared for herself, and Mr Paul Brown, Partner, Baker & McKenzie lawyers, appeared with permission for the Respondent.[2]
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[3] (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance…”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(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 similar position.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[4]
In Mohammed Ayub v NSW Trains[5], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[6]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[7] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[9]
Whilst the Applicant did not file any witness statement evidence, the Applicant’s reasons for delay are set out in her Form F2,[10] her email dated 22 January 2023 (to the Chambers of Vice President Catanzariti), and in oral submissions made on her behalf at the Hearing on 15 February 2023.
The reasons for delay set out in the Applicant’s email dated 22 January 2023 (to the Chambers of Vice President Catanzariti) read:
“1. SC Johnson had Christmas shut down period and I was only able to get back in contact with them after this to discuss the details of the employment separation letter.
2. I am currently on maternity leave and caring full time for my child and this has impacted my availability to work through the matter promptly.
3. I got in contact with Fair Work Ombudsman on 12 January and 16 January to understand my legal work rights and during this time I was still trying to get a resolution with SC Johnson regarding my employment separation. Phone calls were made to SC Johnson on 23 December and 12 January to try and resolve the situation and get clarity on my termination and notice pay.
4. SC Johnson only clarified on Monday 16 January via email that I would not receive payment in lieu of my 6 week notice period. They also mentioned that they regard me as having brought my employment to an end however it was not a resignation from my side but rather a SC Johnson initiated termination due to not being vaccinated against Covid-19 (please see attached screenshot of last email received 16 January). Application was then filed once these details were clarified.”[11]
The Respondent made the following submissions in response to the foregoing reasons for delay advanced by the Applicant:
“The Applicant submits, in her contentions, that one factor or "rationale" relates to the Christmas shut-down period of the Respondent. The shutdown period of the Respondent's offices was 28 December 2022 to 30 December 2022. There is no evidence however of the Applicant corresponding or seeking to correspond in writing or by email prior to her email of 13 January 2023. Her evidence goes no higher than suggesting that she was "unable to get in contact to discuss details of the departure letter". In particular the Applicant claims that she wanted to discuss her termination pay and notice pay. The Applicant was on notice that the employment ceased on 22 December 2022. There is no evidence of any attempt to engage with the Respondent on the fact of the termination and/or the fairness of the termination.
To the extent that the delay is explained in terms of seeking legal advice the Applicant contends that this occurred on 12 January and 16 January 2023. The Applicant gives no indication of the advice (legal or otherwise) given and/or received. The Commission would infer that, as early as 12 January 2023, the Applicant had the benefit of advice as to her legal work rights and could have (presumably) acted on that advice and filed an Application for an unfair dismissal remedy within time.
The Applicant provides no evidence as to the fact that she did not seek legal advice in the period 22 December 2022 to 12 January 2023. The only email from the Applicant (dated 13 January 2023) dealt exclusively with a claim for six weeks' pay in lieu of notice. A claim for payment in lieu of notice is not, in the submission of the Respondent, evidence as to her disputing the fairness or otherwise of the termination.
The response of Ms Sarah Selva in the email confirmation of 16 January 2022 continued the same information conveyed on 22 December 2022, that being that the Applicant had brought the employment to an end.
To the extent that the Applicant contends that there was, in the circumstances, evidence of some confusion on her part, this confusion, on her own evidence, appeared to relate to her concerns about the alleged non-payment of what she described as her "notice period". Any such alleged confusion is not exceptional.
The Applicant has not provide any probative evidence of any incapacity that may explain the delay. "Maternity" leave is not a form of incapacity and the Applicant was not on a period of "maternity" leave on and from the date of the employment ending on 22 December 2022.
The Commission would comfortably find that the Applicant was clearly on notice as to the fact that the employment had come to an end on 22 December 2022. It is the submission of the Respondent that, to the extent that on or about 13 January 2023, the Applicant took steps to engage with her previous employer, the purpose and intent of that engagement was her concerns about the alleged non-payment of the six week notice period. There was no attempt, in the submission of the Respondent, to engage on the fairness or otherwise of the dismissal. It was, in the circumstances, a monetary claim being advanced by the Applicant. There is no evidence on behalf of the Applicant that rises to the description of action taken by the Applicant to dispute the dismissal (section 394(3)(c) of the FW Act).”[12]
The Applicant’s email to Ms Sarah Selva of the Respondent on 13 January 2023 (8:18am) reads:
“Hi Sarah
I hope you are well.
As discussed yesterday, please could you come back to me regarding my 6 week notice period and payment in lieu.
The advice that I have been given is that notice period and approved leave (regardless of unpaid)cannot run concurrently and as such, I am entitled to payment in lieu of notice.
Absence of a notice period would deprive me of my benefit of maternity leave. The purpose of the notice period is to enable me to seek alternative work whilst my current maternity leave (within my12 month allowance) is to care for my son.
Additionally, I had also elected to be on paid leave in January until my return.
I have also been informed that payment must be paid no later than 7 days after the day on which my employment terminated and thus should be in this payment cycle.
Thank you,
Tarryn”[13]
Ms Sarah Selva’s response email (dated 16 January 2023) reads:
“Hi Tarryn,
Further to your email below, we respect your decision and your views not to be vaccinated for COVID-19. As a result of your personal decision, we regard you as having brought the employment to an end, therefore from a contractual notice period perspective there is no payment in lieu of notice period.
Thank you for confirming the collection and hand over of your SCJ assets. Pls let me know if there if you have any other questions.
Thanks, Sarah”
It is well established before this Commission, including in cases such as Ryan v Power & Data Support Services Pty Ltd[14] (Ryan’s case) that settlement inquiries or negotiations are not an acceptable reason for the delay in the filing of an application. In Ryan’s case, Sams DP (at [15]) observed that whilst the parties were engaged in settlement negotiations: “It was open to [an] applicant to lodge [their] application within the statutory 21 day time period and to continue these discussions with the respondent’s representative… If settlement is reached, a discontinuance of the application is a simple process and can be made over the phone”.
Whether a person decides to avail themselves of legal advice or representation is a matter for them. It is not a matter that explains a delay in filing an application. The Commission’s website (running 24/7) has a wealth of information going to the filing of applications (especially unfair dismissal applications) absent the ‘need’ for legal advice or representation.
All in all, on the evidence before me, I conclude that that the Applicant’s reasons, for the four day delay in filing her Application, are unsatisfactory. The reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain her delay. The Applicant was not suffering an “incapacity” that prevented her from filing her Application within the 21-day time limit.[15] Nor do I accept that the Respondent’s cessation of employment letter dated 22 December 2022 displays any confusion or ambiguity as to the Applicant’s employment being at “an end”, with the Respondent confirming that “today [22 December 2022] [is] your [the Applicant’s] last day of employment”.[16]
I find that the Applicant’s reasons for delay are such that they weigh against any finding as to the existence of exceptional circumstances in this case.
Whether the Applicant become aware of the dismissal after it had taken effect[17]
The Applicant was aware of her cessation of employment with the Respondent on the day that it took effect. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[18]
There is some evidence that the Applicant raised concerns with the Respondent as to the cessation of her employment on 23 December 2022, on 12 January 2023 (by telephone) and 13 January 2023 (via email).[19] I consider this criterion to be a neutral consideration that weighs neither for nor against a finding as to the existence of exceptional circumstances.
Prejudice[20]
The next criterion to be considered is any prejudice to the Respondent occasioned by the Applicant’s four day delay in filing her Application. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[21] In this case, I treat this criterion as a neutral consideration that weighs neither for nor against a finding as to the existence of exceptional circumstances.
Merits[22]
The Respondent made the following submissions as to the merits of the Applicant’s unfair dismissal case:
23. Whilst these Submissions address the issue as to out of time, as part of the consideration of the Commission, there must be reference to the merits or otherwise of the underlying claim for unfair dismissal. The Respondent contends that there was no "dismissal" in that the Applicant brought the employment to an end as a result of the Applicant's repeated and ongoing reluctance and ultimately the Applicant's informed refusal to take the necessary steps to be vaccinated as part of her return to work from "maternity" leave. These facts and circumstances are set out in the documents relied upon by the Applicant and filed with the Commission and, in particular, the following email exchange between the Applicant and her employer on 15 December 2022 and 16 December 2022, where the Applicant on 15 December 2022 states as follows:
"My decision not to be vaccinated still stands based on the current risks associated with the mRNA vaccine.”
This same email also contains the following:
"Looking at the WHS laws, my understanding is that this is governed by public health orders and regulations, which there are currently none since November 2022. The advice is that people can also attend their workplaces, even with Covid and 110 longer need to isolate. Which specific law is guiding the SCJ policy?
It is my understanding that I will be terminated should I not he vaccinated, is this correct?" (Our emphasis)
24. Ms Sarah Selva responded to the Applicant on 19 December 2022 in the following terms:
"Hi Tarryn,
Thanks for the email and sharing your views.
With respect to the NSW Workplace Health & Safety legislation we are obliged to have regard to the obvious changes to health associated with COVID-19 and to take steps to minimize this risk.
We have also had regard to what has been referred to recently as a "spike" in COVID-19 cases. It remains a position that the vaccination for COVID-19 is and remains the most effective form of protection against COVID-19.
We will continue to monitor the level of risk in NSW We appreciate that your views may differ however SCJ must make decisions for the benefit of all employees, and for this reason we have not elected to change the current settings.
I will contact you in mid-January to assess the situation at the time.
I wish you and your family a lovely Christmas and new year.
Take care, Sarah"
25. Having regard to the limited information before the Commission with respect to the background of the decision of the Respondent to regard 22 December 2022 as the last day of employment, it is apparent from the documents filed by the Applicant that there was an ongoing and unambiguous refusal of the Applicant to take the necessary steps to be vaccinated in circumstances where the Respondent repeatedly and unambiguously imposed the lawful and reasonable requirement to the effect that any return to work of the Applicant would, in the circumstances, require the Applicant to be vaccinated for COVID-19 . The underlying Application is lacking in merit.”[23]
The principles stated Kyvelos v Champion Socks Pty Ltd[24] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[25]
In Kornicki v Telstra-Network Technology Group,[26] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“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.”[27]
The merits of the Applicant’s case, by reference to her assertions (that she was dismissed by the Respondent absent a valid reason), and the Respondent’s counter assertions (that the Applicant ended her own employment because she was unable to undertake the inherent requirements of her role by virtue of her refusing to have the COVID-19 vaccination injections), were not tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application).[28]
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[29]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[30] Neither party made any relevant submissions as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration that weighs neither for nor against a finding as to the existence of exceptional circumstances.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria (s.394(3)(a)), considered individually, points towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no reason for me to be satisfied that exceptional circumstances exist (i.e. one criteria (s.394(3)(a)) weighs against any finding as to the existence of exceptional circumstances, and the remaining criteria (s.394(3)(b)-(f)) are neutral).[31]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file her Application.[32] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Tarryn Van Romburgh, Applicant, appeared for herself.
Mr Paul Brown, Partner, Baker & McKenzie lawyers, appeared with permission for the Respondent.
[1] See correspondence from the Respondent to the Applicant dated 22 December 2022, signed by Ms Sarah Selva, Human Resources Manager. It is unnecessary for me to resolve the question as to whether or not the Applicant was “dismissed’ by the Respondent in these out of time proceedings (given that both parties agree that the Applicant relevantly ceased her employment with the Respondent on 22 December 2022). Should the Applicant be successful in obtaining an extension of time, the question as to whether or not the Applicant was “dismissed” by the Respondent would immediately require resolution in order to determine whether the Commission has jurisdiction to hear and determine the Applicant’s unfair dismissal application.
[2] The Applicant did not oppose the Respondent being granted permission to appear at the hearing. I granted permission for the Respondent to be legally represented (on transcript) having regard to the criteria under ss.596(2)(a) and (c) of the Fair Work Act 2009.
[3] [2011] FWAFB 975.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[5] [2016] FWCFB 5500.
[6] Section 394(3)(a) of the Act.
[7] [2021] FWC 3903.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[9] Ibid, at [40].
[10] Form F2, dated 13 January 2023, filed 16 January 2023, Item 1.6.
[11] These reasons were repeated orally by the Applicant at the Hearing on 15 February 2023.
[12] Respondent’s written submissions, 7 February 2023, at [16]-[22].
[13] This email was sent after the Applicant first left a telephone message for Ms Selva on 12 January 2023.
[14] [2015] FWC 2430.
[15] Carer’s responsibilities for a child do not constitute a medical incapacity.
[16] See correspondence from the Respondent to the Applicant dated 22 December 2022, signed by Ms Sarah Selva, Human Resources Manager.
[17] Section 394(3)(b) of the Act.
[18] Section 394(3)(c) of the Act.
[19] The 13 January 2023 was already one day past the 21-day statutory time limit.
[20] Section 394(3)(d) of the Act.
[21] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[22] Section 394(3)(e) of the Act.
[23] Respondent’s written submissions, 7 February 2023, at [23]-[25].
[24] (1995) 67 IR 298.
[25] Ibid, at 299 to 300.
[26] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[27] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[28] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33]. See Emails between Applicant and Sarah Selva, Subject “Re: CONFIDENTIAL – SC Johnson”, “Today at 08:18” and “Today at 11:33”; Email trail between Applicant and Sarah Selva between 15 November 2022 (9.33am) and 19 December 2022 (9.31am); Email from Applicant to Sarah Selva, Subject “Re: Return to work queries”, 15 October 2022 at 12:28 and 21 October 2022 at 4:52pm; Form F3 Employer Response, at Items 2.2.1 and 3.1.1.
[29] Section 394(3)(f) of the Act.
[30] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[31] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[32] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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