Taylah Whyburn v Grove Racing
[2023] FWC 944
•9 MAY 2023
| [2023] FWC 944 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Taylah Whyburn
v
Grove Racing
(U2023/2523)
| COMMISSIONER WILSON | MELBOURNE, 9 MAY 2023 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed
This decision concerns an application made by Taylah Whyburn alleging unfair dismissal against Grove Racing Pty Ltd (Grove Racing or the Respondent). Ms Whyburn was dismissed on Friday 23 December 2022. Ms Whyburn’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Friday 24 March 2023.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Ms Whyburn’s application was made outside of the statutory time limit, with it having been made after the expiry of the 21-day time period allowed for by the FW Act, which ended on Friday 13 January 2023.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Whyburn’s application. Grove Racing object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
Evidence was received from Ms Whyburn on her own behalf and from Mr Brenton Grove for the Respondent. Ms Whyburn’s father, Mr Geoffrey Whyburn, also participated in the proceedings and spoke on her behalf.
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[1] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[2]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Ms Whyburn’s case and that an extension of time should not be granted for the making of her unfair dismissal application.
BACKGROUND
Ms Whyburn commenced full-time employment with the Respondent on 2 May 2022, and according to the contract of employment was employed as a mechanic. She had participated in an unpaid work placement at Grove Racing for a short period of time before May 2022.
The work Ms Whyburn performed was in relation to a Super2 class team however the contract of employment was not so specific as to say that was a term of her engagement. In early November 2022 Grove Racing decided to end its Super2 team. Ms Whyburn submits that on or about 8 November 2022 she spoke with her supervisor, David Cauchi, about the decision and was told that Grove Racing did not know at that time what would be happening with her position. However, on 24 November 2022 she was told she would be dismissed as her position was no longer required and that the dismissal would be with effect from Friday 16 December 2022.
Ms Whyburn’s actual date of termination though was a week later, on Friday 23 December 2022 after she and her father, Mr Geoffrey Whyburn, reminded Grove Racing that the contract of employment required 4 weeks’ notice to be given.
While she initially accepted the end of her employment Ms Whyburn submits that her dismissal was not a case of genuine redundancy as in February 2023, she was advised by a friend who is an employee of the Respondent, that Grove Racing had employed an apprentice mechanic in January 2023. Ms Whyburn contends that the apprentice mechanic performs duties that were a part of her role.[3]
Grove Racing states that the business reduced from a four-car racing program to a two-car racing program in 2023. It submits Ms Whyburn was employed to perform mechanical work on the Super2car and that the Super2car program ceased at the end of the 2022 season therefore making her position redundant.[4] Further, Grove Racing submits that the individual Ms Whyburn contends was employed by the Respondent in January 2023 is employed as a sub assembly technician and not a mechanic role.[5]
On 24 February 2023 Ms Whyburn contacted the Fair Work Ombudsman about her situation and was advised to contact JobWatch for legal advice.[6]
Ms Whyburn submits that she was unable to contact JobWatch until 23 March 2023 and that she submitted her application the day after speaking to JobWatch.[7]
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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 time limit in s.366(1)(a) is not an exceptional circumstance.” [8]
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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[9]
In considering whether an extension of time should be granted to Ms Whyburn, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[10] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[11] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[12] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[13]
The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Ms Whyburn’s case the relevant period to be considered is that after the last day for a lodgement to be within time, namely Friday 13 January 2023.
In her evidence, Ms Whyburn set out that the reason for the delay in filing the application was that she was terminated prior to Christmas 2022 and in February 2023 she was advised that Grove Racing had employed another person with lesser qualifications into her former position in January 2023.[14] Ms Whyburn then contacted the Fair Work Ombudsman on 24 February 2023 and was instructed to contact JobWatch for advice. She further submits “Job Watch information line has been really busy and I have only just been able to contact them on Wednesday 23rd March”[15].
The Respondent submits that there are no exceptional circumstances “that led to her claim being lodged another 28 days after she believes she had grounds to make a claim.”[16]
Ms Whyburn had no reason to query the basis of her termination until after the statutory period for making an unfair dismissal application had passed. She began to query her dismissal in early February 2023 but ultimately did not lodge an unfair dismissal application for another 6 or more weeks. In the intervening period she took some weeks from the time she first heard from a friend within Grove Racing that another person had been engaged to make contact with the Fair Work Ombudsman. That contact did not take place until 24 February 2023 with her then being referred to JobWatch which then took another month before she received advice about her situation. It was only when she spoke with JobWatch that an application was made – promptly it seems, following their advice.
These circumstances do not amount to an acceptable explanation on Ms Whyburn’s part. This is not a situation in which Ms Whyburn moved rapidly from the point she learned of Grove Racing’s employment of another person in early February and lodged an unfair dismissal application within the following day or two. It took some weeks for her to then contact the Fair Work Ombudsman and then more weeks to speak with JobWatch. Upon learning of the changed information it was incumbent on Ms Whyburn to immediately take steps to receive advice and then challenge the dismissal.
As a result, I am not satisfied that Ms Whyburn has provided the Commission with an acceptable explanation for the delay in making her unfair dismissal application.
Accordingly, consideration of this criterion does not resolve in favour of Ms Whyburn for the granting of an extension of time for the making of her application.
2. Whether the person first became aware of the dismissal after it had taken effect
Ms Whyburn submits she was notified of her dismissal on 24 November 2022.
While Grove Racing submits that Ms Whyburn was notified of her dismissal on 8 November 2022 at a meeting and was then provided with a termination letter on 24 November 2022 the evidence to support notification on 8 November 2022 is unclear, with Mr Grove not being directly involved in the discussion with Ms Whyburn.
Irrespective of this discrepancy it is clear from the evidence that Ms Whyburn had at least four weeks from the point of notification of termination until the date it took effect. This is therefore not a circumstance in which Ms Whyburn only became aware of Grove Racing’s decision after it had taken effect. Accordingly, this is a neutral factor in my consideration.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[17]
The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[18] (underlining added).
Ms Whyburn did not question or argue against the dismissal after she became aware of it,[19] however she or her father had discussions with Grove Racing about the termination as it was later agreed the date of termination would be extended to meet the requirements of the contract of employment. While so, this contact was not a disputation of the termination.
Accordingly, this also is a neutral factor in my consideration of whether an extension of time should be granted for the making of the unfair dismissal application.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 70 days.
The Respondent does not point to any prejudice that would arise to it if the Applicant were granted an extension of time for the filing of his application.
As a result, consideration of this criterion is also a neutral factor in considering whether there were not exceptional circumstances.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[20] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[21]
Ms Whyburn’s case turns on the information she learned in February 2023 to the effect that a person had been employed by Grove Racing into her job, meaning the reason given for her termination, that her “role is no longer required” could not be sustained. The Respondent though points to several problems with this contention, including that the person nominated by Ms Whyburn as having replaced her had in fact been engaged into a different position. In this respect Mr Grove notes the new employee is employed as a sub assembly technician and not a mechanic role.[22] On another contention put forward by Grove Racing, and relevant to the matter of remedy in the event an unfair dismissal was found, Ms Whyburn concedes she has obtained alternative employment after leaving Grove Racing, but submits that the position is not the same as her former employment and that she is not engaged on a full-time basis.
It is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Ms Whyburn’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[23] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[24] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.[25]
Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Whyburn.
As a result, Ms Whyburn’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms T. Whyburn for herself with Mr G. Whyburn
Mr B. Grove for the Respondent
Hearing details:
Melbourne (via video conference);
28 April;
2023.
[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[3] Exhibit A1, Applicant Outline of Submissions: Extension of Time, item 7.
[4] Exhibit R2, Form F4, Objection to Unfair Dismissal Application, item 1.2.
[5] Ibid.
[6] Exhibit A4, Applicant Witness Statement.
[7] Ibid.
[8] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[12] Ibid, [40].
[13] Ibid, [41].
[14] Form F2, Application for Unfair Dismissal, item 1.6; Exhibit A1, Applicant Outline of Submissions: Extension of Time, item 4.
[15] Form F2, Application for Unfair Dismissal, item 1.6.
[16] Exhibit R2, Form F4, Objection to Unfair Dismissal Application, item 1.2.
[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[18] Ibid.
[19] Exhibit A1, Applicant Outline of Submissions: Extension of Time, item 5.
[20] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[21] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[22] Exhibit R2, Form F4, Objection to Unfair Dismissal Application, item 1.2.
[23] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[24] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[25] Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].
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