Tony Lowrey & Chantelle Lowrey v Milyirrtjarra Aboriginal Corporation
[2024] FWC 1466
•5 JUNE 2024
| [2024] FWC 1466 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tony Lowrey & Chantelle Lowrey
v
Milyirrtjarra Aboriginal Corporation
(U2024/4535 & U2024/4534)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 5 JUNE 2024 |
Application for an unfair dismissal remedy – extension of time
Issue and outcome
On 19 April 2024, Mr Tony Lowrey and Mrs Chantelle Lowrey (the Applicants) applied for an unfair dismissal remedy having been dismissed from the Milyirrtjarra Aboriginal Corporation (the Respondent) on 28 March 2024. The Respondent objected to the applications on the basis that the applications were lodged outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The applications had been made one day outside of that statutory period. This decision deals with that objection.
The Applicants had been employed as Store Managers in the Warburton Aboriginal Community from 5 December 2022 up until the date of their dismissal. As Store Managers of the Warburton Store, the Applicants were said to have had significant responsibility for the financial well-being of the store.[1] Their dismissals arose in circumstances where it was alleged that over the course of the last two financial years, the Respondent’s store had gone from a net position of holding a surplus to being in deficit. Further, issues appeared to have purportedly plagued the Applicants in the performance of their roles, including poor stock management and mismanagement of operating hours, amongst other issues. Having been dismissed on 28 March 2024, the Applicants lodged their unfair dismissal applications one day late.
Section 396 of the Act provides that the Fair Work Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested that the unfair dismissal applications were made out of time. For the applications to now proceed, it is necessary for the Applicants to obtain an extension of time in which to make their applications. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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 Applicants contend that their circumstances are exceptional based on them having taken a screenshot on 18 April 2024 showing completed unfair dismissal applications, albeit that the Commission did not receive their applications until 19 April 2024, rendering their applications one day late. The Applicants gave evidence that they were travelling at the time, and their applications may not have sent due to a weak signal or some other ‘glitch’.[2] Further, according to Mr Lowrey, the Applicants had delayed making their applications, as they were awaiting communication from the Respondent in respect of the financial aspect of their dismissals.
With the consent of the parties, both applications were heard together. At the start of the hearing, I informed the parties that the issue to be determined was whether the Applicants’ circumstances were exceptional, and if so, whether it was fair and equitable for extensions of time to be granted. The parties were directed to address the factors in s 394(3) of the Act and were permitted to provide viva voce evidence given the paucity of material filed in the lead up to the hearing.
Shortly stated, when I consider all the evidence and the matters that I am obliged to take into account individually and collectively, I am not satisfied exceptional circumstances exist in respect of the Applicants’ applications. As detailed in my reasons that follow, the Applicants have not, in my view, provided plausible reason for the delay, and the other factors I am obliged to take into account under s 394(3) of the Act do not lead to a finding of exceptional circumstances. As such, it is unnecessary for me to consider whether I should exercise my discretion. However, were it necessary to do so, based on the findings that follow, I am not persuaded it is fair and equitable that time should be extended. Accordingly, I decline to grant the Applicants an extension of time, and therefore their applications for an unfair dismissal remedy must be dismissed. Orders[3] to that effect issue concurrently.
Background
The broader context giving rise to the dispute has been gleaned from the materials tendered into evidence and the Applicants’ viva voce evidence at hearing. The Respondent relied on its written materials.
The Applicants gave evidence that they were both employed as Store Managers in the Warburton Aboriginal Community. Around 20 February (presumedly 2024), the Respondent’s ‘finance’ came to briefly ask them questions as to why the store had a high purchase figure and low comparative sales. Mr Lowrey said that at that time, the Applicants did voice their concerns that this may have been because of improvements made to the store or the provision of cash advances.[4] The Applicants said that they did not hear anything more from the Respondent until 16 March 2024 when they were served with a Notice of Suspension – Financial Management and Performance Concerns.[5]
By letters dated 13 March 2024, the Applicants were asked to show cause why their employment should not be terminated for their financial management of the store and their performance.[6]
The Respondent submits that on 19 March 2024, responses to the ‘show cause’ letters were received from the Applicants. Those responses were, according to the Respondent, duly considered.[7]
The Respondent submits that on 27 March 2024, the Applicants were individually requested to attend a ‘Show Cause Outcome meeting’ on 28 March 2024. However, the Applicants sought to have a single outcome meeting, and the Respondent accommodated the request.[8]
The Respondent further submits that the Applicants were dismissed on 28 March 2024 during the course of the outcome meeting which was held by MS Teams. The Respondent understood that at the time of the meeting the Applicants were located in Perth. Written confirmation of the termination of employment was provided to the Applicants at 1.23PM on that day, by email.[9]
Consideration
There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[10]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[11] Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[12] 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 can be considered exceptional.[13]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[14]
3.1 Reasons for the delay in filing the applications
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[15] 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.[16]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[17] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[18]
The Applicants pressed that one of the reasons for the delay in making their applications was due to them travelling at the time and their applications may not have been sent online as of 18 April 2024, due to a weak signal or some other glitch.
The Respondent drew the Commission’s attention to the decision of Commissioner Williams in Parker v Hire Intelligence International Pty Ltd (Parker)[19] where the Commissioner observed that the applicant, a Mr Parker, had been placed in an awkward position of having been dismissed the day before he was about to leave the country on his planned holiday to Europe. However, the Commissioner expressed that whilst it may have been a difficult decision for Mr Parker, he did have the option of remaining in Australia and making his unfair dismissal application rather than leaving the country or continuing with the holiday but making his application whilst away. The Commissioner noted that the Commission allows unfair dismissal application to be made by telephone, online lodgement, email, or post, and that it was more likely than not that throughout his time in Europe, the Applicant would have been able to access a telephone or computer.[20]
It is to be appreciated that the lodgement of an unfair dismissal application via the Commission’s online portal is not the only way to make an unfair dismissal application. As observed by the Commissioner in Parker, the application can be submitted online, or by filling out the form in Word or PDF format and emailing it to the Commission,[21] or sending the application to the nearest Commission office. In addition, circumstances arise where the Commission will accept an application over the phone.[22]
It is accepted that technical internet or web related problems are not necessarily exceptional, uncommon, or unusual.[23]
The Applicants were cognisant of the date their employment ended, and yet they left the lodgement of their application until the last day on which to make their application. In my view, it was not reasonable for the Applicants to leave lodging their unfair dismissal applications online until the final day of a 21-day period in which to make their unfair dismissal applications, particularly without having found out whether there was an alternative means by which they could have lodged their applications if they encountered technical difficulties when travelling, such as sending their applications to the Commission, emailing their applications to the Commission or making their applications by telephone to the Commission.[24]
The Applicants further referred to having delayed the making of their applications as they were waiting to hear back from the Respondent regarding the financial aspect of their dismissals. However, again, this is not a plausible reason for delaying the making of the applications. It is not suggested that the information sought from the Respondent was necessary for the completion of the unfair dismissal applications. As it is, the Form F2 requires very little information and an applicant is not required to file evidence at the time of lodgement.
I do not accept that the matters relied upon by the Applicants to be an acceptable or reasonable explanation for the delay in filing their unfair dismissal applications. Whilst the period of the delay was one day, as was observed in Ozsoy v Monstamac Industries Pty Ltd[25] the fact that an application was lodged only one day late, is not the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.[26]
On balance, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances. In arriving at this finding, I have considered the relevant period to be the period after the 21-day timeframe for lodging the application,[27] but have, in addition, considered the circumstances from the time of the dismissal.
3.2 Whether the Applicant became aware of the dismissal after it took effect
At all material times, from the time the Applicants were dismissed until the date the unfair dismissal applications were made, the Applicants knew they had been dismissed as of 28 March 2024. I consider this to be a neutral factor.
3.3 Action taken 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.[28]
The Applicants conceded that they did not take action to dispute their dismissals because they considered that the Respondent had already made up its mind and had organised replacements for them.
Having considered the evidence and submissions of the Applicants and the Respondent and finding that the Applicants did not dispute their dismissal, I consider this to be a neutral factor.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. I therefore consider this to be a neutral factor in the present case.
3.5 Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2), and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[29] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.[30]
Concerning the substantive applications, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge her application.[31] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.
It is evident that there is a factual dispute between the parties regarding the purported underperformance or misconduct of the Applicants, in addition to whether they were afforded procedural fairness. Were it the case that the assertions of the Respondent were of substance -such that the findings made aligned with what the Respondent purported occurred, then it would be highly unlikely that the Applicants would be successful with their cases. However, at this stage the merits have not been fully tested and it is not the case that I can conclude that the Applicants’ applications are absent merit. It is for these reasons I have considered this factor to be neutral.
3.6 Fairness between the person and other persons in a similar position
The Deputy President in Morphett v Pearcedale Egg Farm considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[32]
Based on the materials filed, it is not apparent there are matters that are relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)). However, while this consideration may relate to the position of various employees of an employer responding to an unfair dismissal application, it may extend to matters currently before the Commission or to matters previously decided by the Commission. Prior cases of this Commission, as cited in this decision, have considered circumstances where there have been technical difficulties in online lodgement of application forms (such as with unfair dismissal applications) and whilst all turn on their own facts,[33] it has been accepted that online lodgement difficulties may not necessarily constitute exceptional circumstances. However, as each case does turn on its own facts, I consider that in the circumstances of this case, this factor neither weighs toward or against a finding of exceptional circumstances.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicants have not provided a satisfactory explanation for the whole period of the delay in making their applications. The remaining matters I need to consider are otherwise neutral. However, having considered the submissions and evidence, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. As such, in the absence of a finding of exceptional circumstances, it is unnecessary to consider whether it is fair and equitable to grant an extension.
The applications were made outside the time limit imposed by the Act, and therefore, they are not in accordance with the Act. As noted, the applications for an unfair dismissal remedy are therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Tony Lowrey and Chantelle Lowery, the Applicants
Dean McAuliffe of the Respondent
Hearing details:
2024
Perth (by telephone):
28 May.
[1] Digital Hearing Book, 13 (DHB).
[2] Ibid 18.
[3] PR775712, PR775713.
[4] DHB (n 1) 5-6 and 11-12.
[5] Ibid
[6] Ibid 35 and 60.
[7] Ibid 80 and 103.
[8] Respondent’s Submissions dated 23 May 2024, [1(b)] (Respondent’s Submissions).
[9] DHB (n 1) 166.
[10] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[11] (2011) 203 IR 1, 6 [15].
[12] Ibid 5 [13].
[13] Ibid 5–6 [13].
[14] (2018) 273 IR 156, 165 [38] (emphasis in original).
[15] Ibid 165 [39].
[16] Ibid.
[17] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).
[18] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).
[19] [2015] FWC 215 (Parker).
[20] Ibid [10].
[21] Fair Work Commission Rules 2024, r 16-17.
[22] Ibid r 69.
[23] Miller v DPV Health Ltd [2019] FWC 3979, [18]; Cullity v Cronus Pty Ltd[2021] FWC 4447 (Cullity); Collins v Bunnings Group Limited[2016] FWC 7080, [34].
[24] Cullity (n 23). .
[25] [2014] FWC 479, [30] (Ozsoy).
[26] Ibid.
[27] Long (n 17) 371 [40].
[28] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[29] (1997) 140 IR 1.
[30] Ibid.
[31] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[32] [2015] FWC 8885, [29].
[33] Johnson v Joy Manufacturing Co Pty Ltd[2010] FWA 1394.
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