Tetyana Rezinska v Jewish Care (Victoria) Inc
[2024] FWC 2404
•4 SEPTEMBER 2024
| [2024] FWC 2404 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tetyana Rezinska
v
Jewish Care (Victoria) Inc
(U2024/8126)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 4 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – application filed 7 hours, 24 minutes out of time– representative error – extension granted.
On 21 June 2024, Ms Tetyana Rezinska was notified of her dismissal from employment with Jewish Care (Victoria) Inc (the Respondent) with immediate effect. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) for Ms Rezinska to make an unfair dismissal application ended, therefore, at midnight on 12 July 2024. Ms Rezinska’s application was filed outside this 21-day period, at 7.24am on 13 July 2024. As such, she requires the Commission to allow her an extension of time (s.394(2)(b)).
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]
Section 394(3) of the Act states that the Commission may allow a further period for the application to be made if the Commission 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.”
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.
Reason for the delay – s.394(3)(a)
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 an applicant’s favour, however all the circumstances must be considered.[3]
Evidence at the hearing confirmed that Ms Rezinska retained Mr Tom Koletsos of Just Relations Consultants as a paid agent on 2 July 2024, 11 days after her dismissal took effect, for the purposes of preparing and lodging of an unfair dismissal application on her behalf. Ms Rezinska submitted that the reason for the delay was representative error by Mr Koletsos that was not within her control and further, that she was blameless because she was entitled to rely on Mr Koletsos acting on her clear instructions to file her unfair dismissal application. In this regard, Ms Rezinska relied on the evidentiary account of Mr Koletsos that having prepared the unfair dismissal application for filing, his attempts to successfully lodge it on time were ultimately unsuccessful due to failed internet access and a dislodged power cord. Conversely, the Respondent submitted that the representative error by Mr Koletsos was only one of a number of factors to be considered by the Commission in deciding whether the discretion to extend time should be exercised.
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, which in this case ended at midnight on 12 July 2024. 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.[4] The Respondent submitted that a lack of action by Ms Rezinska in the period from 2 July 2024 to 12 July 2024 was a compounding factor that ought to weigh against the finding of exceptional circumstances. The Respondent argued that Ms Rezinska gave no reason or explanation for her failure during this period to provide the relevant contact name and email address of the Respondent for inclusion in her Form F2 – Unfair Dismissal Application (Form F2). However, it is not necessary for Ms Rezinska to demonstrate that she was “blameless” for the delay in the filing of her unfair dismissal application beyond establishing the fact that she gave appropriate instructions to Mr Koletsos in a timely fashion.[5] I am satisfied she did. Further, while it took from 2 July 2024 until 1.36pm on 12 July 2024 for Ms Rezinska to provide the contact details for the Respondent’s contact person, I do not consider this contributed to or caused the delay. Mr Koletsos held instructions to lodge Ms Rezinska’s unfair dismissal application and by 1.36pm on 21st day after Ms Rezinska’s dismissal took effect, possessed all of the necessary information in order to do so. For an experienced paid agent, completing the steps required to lodge the application should have then been relatively straightforward and yet Mr Koletsos failed to do so within the prescribed time period in s.394(2)(a).
I am satisfied the late filing of Ms Rezinska’s unfair dismissal application was due to representative error on the part of Mr Koletsos, who was imprudent and careless upon receipt of the requested information because he failed to give the task of lodging Ms Rezinska’s unfair dismissal application the highest priority. Instead of inserting the contact details he had received into the Form F2 upon receipt and then immediately lodging it with the Commission, Mr Koletsos focussed on collecting his wife from work at 3.00pm. Even after arriving home at 5.00pm, Mr Koletsos did not sit down and file the Form F2, instead going out to dinner until 11.15pm and leaving little room for error as the midnight deadline approached. At approximately 11.15pm, Mr Koletsos discovered his home had no internet connection and despite making several attempts, was not able to file Ms Rezinska’s Form F2 before midnight. It was only the next morning that it occurred to Mr Koletsos to check his modem. Upon doing so, he discovered that it was not displaying an internet connection because it had become disconnected from its power source. Having discovered this, Mr Koletsos remedied the situation and immediately lodged the Form F2. Mr Koletsos accepts, and I am satisfied, that he was at fault for the late filing of Ms Rezinska’s unfair dismissal application. I am also satisfied the circumstances of the delay were outside Ms Rezinska’s control.
In summary, I am satisfied that there was representative error in this case and that it was wholly responsible for the delay of 7 hours and 24 minutes. I am not persuaded that Ms Rezinska contributed either to Mr Koletsos’ representative error or to any period of the delay. The representative error provides an acceptable explanation for the whole of the period of the delay and so weighs in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied that Ms Rezinska was aware she had been dismissed with immediate effect on 21 June 2024 and, therefore, had the full period of 21 days to lodge her application. This consideration is a neutral consideration.
Any action taken to dispute the dismissal – s.394(3)(c)
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[6] Ms Rezinska submitted she took no other action other than to first seek advice and give instructions for an unfair dismissal application to be made within 5 days of the dismissal, but this should not weigh against the granting of an extension of time.[7] The Respondent claims that Ms Rezinska took no action to dispute the dismissal before the lodgement of her application,[8] and that this matter is a neutral consideration that does not weigh in favour of granting an extension of time.[9]
Other than lodging her unfair dismissal application, there was no action taken by Ms Rezinska to dispute her dismissal in the form of dialogue or correspondence with the Respondent. The consideration is a neutral consideration in this case.
Prejudice to the employer – s.394(3)(d)
Ms Rezinska submits that there is no prejudice to the Respondent that would arise from the relatively short delay, or, if there was any prejudice, it would be minimal.[10] The Respondent argues that prejudice would be occasioned to the Respondent if an extension of time would be granted by the “incursion of time and further costs for legal representation associated with defending the Application”.[11]
The Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.
Merits of the application – s.394(3)(e)
I am required to take into account the merits of the application in considering whether to extend time. Some assessment of the merits must be made but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period as required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
The Respondent submitted that the Commission is able to make a prima facie assessment that the application lacks merit and that Ms Rezinska’s prospects are weak. It submitted that Ms Rezinska was dismissed for serious misconduct following an investigation which had concluded that serious allegations that Ms Rezinska had booked two shifts for the provision of unfunded services to a discharged and deceased client, with whom she had a personal connection, and about which she was dishonest during the investigation process, had been substantiated. The Respondent further submits that it afforded Ms Rezinska procedural fairness.[12] Ms Rezinska disputes the Respondent’s reasons for the dismissal and argued the asserted misconduct was founded on inferences that were without basis. She stated she had never received warnings relating to her conduct or capacity prior to the termination of her employment and claims her summary dismissal was unduly harsh.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[13] Having reviewed the material, I consider the merits of Ms Rezinska’s application ultimately turn on some contested points of fact that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits of the case to be a neutral consideration.
Fairness as between the person and other person in a similar position
Although extension of time cases will generally turn on their own facts, the fairness consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between an applicant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided or may concern the position of an applicant and the dismissal of other employees of the respondent at or around the same time. Ms Rezinska did not point to any fact, circumstance or case which might be relevant to this consideration.[14] I note, however, that in Sean Rojas v Fredon Security Pty Ltd,[15] a decision dated 22 December 2023 in which Commissioner Perica determined to extend time, Mr Koletsos was found to have lodged an unfair dismissal late. The Commissioner concluded the two-minute delay in the filing of the application was entirely the fault of Mr Koletsos and that this constituted representative error and an exceptional circumstance, which of itself justified an extension of time.[16] I consider that the application of consistent principles, so as to ensure fairness between Ms Rezinska and the applicant in Sean Rojas v Fredon Security Pty Ltd, weighs in favour of an extension of time in this case.
Conclusion
The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[17] which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[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.”[18]
Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs (b) - (e) are neutral while paragraphs (a) and (f) weigh in favour of the grant of an extension. Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Ms Rezinska to make the application to 13 July 2024. An order[19] to that effect will be issued with this decision and the matter will now be the subject of further directions.
DEPUTY PRESIDENT
Appearances:
T Koletsos for the Applicant
G Raptis for the Respondent
Hearing details:
2024
Melbourne (by video link)
August 27.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[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] See Walton v DS Opco Pty Ltd [2020] FWC 3031 at [12].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[7] CB22 at [31]-[32].
[8] CB75 at [26].
[9] Ibid at [28].
[10] CB22 at [33].
[11] CB75 at [30].
[12] CB61; CB78 at [42].
[13] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[14] CB23 at [46]-[47].
[15] [2023] FWC 3281.
[16] Ibid at [49] and [58].
[17] [2018] FWCFB 901.
[18] Ibid.
[19] PR778974.
Printed by authority of the Commonwealth Government Printer
<PR778970>
0
0
0