Vicki Crowe v The Professional Golfers Association of Australia Limited (“PGA”)

[2021] FWC 6234

[2021] FWC 6234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicki Crowe
v
The Professional Golfers Association of Australia Limited (“PGA”)
(U2021/8830)

DEPUTY PRESIDENT MASSON MELBOURNE, 29 OCTOBER 2021

Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.

Introduction

[1] This decision concerns an application made by Ms Vicki Crowe (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Professional Golfers Association of Australia Limited (the Respondent) from 16 September 2014 and asserts in her Form F2 application that her employment with the Respondent was terminated with effect from 13 September 2021. The unfair dismissal application was lodged on 5 October 2021.

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2). As the dismissal took effect on 13 September 2021 the period of 21 days ended at midnight on 4 October 2021. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the Act. The Respondent opposes this request.

[3] The matter was listed for Hearing/Conference on 29 October 2021 in advance of which both parties filed material in accordance with directions issued. After hearing from the parties, I determined to conduct the matter by way of a conference pursuant to s 398 of the Act. The Applicant appeared on her own behalf and gave evidence while Mr S. Hergt (Chief Operations Officer) appeared for the Respondent and called Mr Gavin Kirkman (Chief Executive Officer) to give evidence.

[4] 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

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[6] Section 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] 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.

Background

[8] The Respondent is a not-for-profit organisation that provides services to its membership which is comprised of tournament playing golf professionals and club professionals working in golf facilities throughout Australia and overseas. 3 The revenue earned by the Respondent is largely derived from golf tournaments it conducts across Australia. The impact of the Covid pandemic in terms of state and international border restrictions along with the uncertain operating environment has placed the Respondent under financial pressure through cancellation of planned tournaments. The forecast financial loss for 2021 is in excess of $400,000.4

[9] The Respondent and Golf Australia are peak bodies for golf in Australia and, while not related entities, have decided to co-locate their head offices at the recently established Australian Golf Centre at Sandringham. Through co-location the Respondent and Golf Australia have sought efficiencies through alignment of like departments within each organisation, with the Respondent seeking such efficiencies to mitigate forecast financial losses. 5

[10] The Applicant commenced employment with the Respondent on 16 September 2014 in the role of Human Resources Administrator. From the 30 April 2018 up until the date of her dismissal the Applicant was employed in the role of HR Manager – People and Culture. During her employment with the Respondent the Applicant provided assistance to the Respondent’s members in respect of various matters before the Fair Work Commission at which she appeared up to twenty-five times 6. The Applicant confirmed in her oral evidence that she is an experienced HR practitioner with over 30 years employment in the field of human resources and is very familiar with the Commission’s unfair dismissal jurisdiction. At the date of her dismissal the Applicant worked four days per week and was in receipt of a salary of $88,377 (inclusive of superannuation).

Reason for the delay

[11] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 October 2021. The delay is the period commencing immediately after that time until 5 October 2021, although circumstances arising prior to that day may be relevant to the reason for the delay. 7

[12] 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. 8 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 delay9.

[13] The Applicant attributes the delay in filing the application to problems she experienced with her laptop. According to the Applicant she started installing a software update on her laptop on 26 September 2021. She says that the upgrade failed to install properly on that day, the laptop ‘crashed’ and despite calls to the Apple Support Team on the 27, 29 & 30 September the issue remained unresolved. 10 This led her to close the “support case” with Apple and turn elsewhere for assistance. She says she was aware of the 21-day statutory timeframe for filing an unfair dismissal application and was becoming increasingly anxious and frustrated.

[14] The Applicant says she made enquiries with Mac data recovery companies on 30 September 2021 but was advised there was a three week wait for home support technicians and there were no Apple shops open due to Covid restrictions. She then resorted to relying on her son who is experienced in Apple Mac computers. The Applicant says her son picked up her laptop on 1 October 2021 and during the period 1-3 October 2021 was able to recover most of the data/files and reload the operating system 11.

[15] The laptop was returned to the Applicant on the evening of 3 October 2021 12 following which she says that while able to download the Form F2 from the Commission’s website13 she was unable to commence filling it in as there was no software installed on her laptop. She says that she then spent all day on 4 October 2021 installing new software, locating and transferring documents from the back-up folder following which she then started setting up her emails which took overnight. It was not until 5 October 2021 she says that she was able to complete and lodge her F2 application.

[16] The Applicant confirmed that she was unaware of the alternate means of lodging an unfair dismissal application set out on the Commission’s website and acknowledged that she had not checked the relevant section of the website regarding filing an unfair dismissal application. She also acknowledged that she had use of her Apple iPhone during the period she was experiencing difficulties with her laptop but had not considered whether she could download, complete and return the F2 to the Commission through use of her smart phone.

[17] I accept that the Applicant had problems with her laptop which she was seeking to remedy over the 7-day period immediately preceding the expiry of the 21-day period following her dismissal. I also accept that as an experienced HR professional she was acutely aware of the statutory time period within which her application needed to be filed. She also says that she did not have access to another computer during the period from 26 September 2021 to 3 October 2021 although I note that she could conceivably have sought her son’s assistance in the period to download and complete the F2. She chose not to as she had not anticipated the problems with the laptop would extend beyond the 21-day deadline.

[18] The Commission’s website sets out the means by which an application for an unfair dismissal remedy may be made, that is by email, fax, post or telephone. The latter method has one caveat in that while an application may be initiated by telephone it will not be progressed until a form F2 is submitted. The reality is that desktop/laptop computers and internet connections are not infallible and are prone to unreliability at times. The fact that one means of filing an application may be problematic is largely alleviated by the alternate options that are available. Access to and/or use of a laptop is not essential to filing an application for an unfair dismissal application. A smart phone may also be used as an alternative to complete and lodge an application. The Applicant could also have contacted the Commission by telephone. She did not avail herself of these alternatives despite claiming to have a good understanding of the unfair dismissal jurisdiction.

[19] I also note that in her oral evidence the Applicant stated that she knew that in filing her application on 5 October 2021 it had been filed late. That evidence could not be reconciled with her Form F2 where she stated in response to question 1.5 that the application had been filed within the 21 calendar days of her dismissal. No reasons for the late filing of her application were advanced in the form F2.

[20] I accept that the Applicant may have been unable to use her own laptop to file her unfair dismissal application in the period immediately prior to the expiry of the 21-day timeframe following her dismissal. There were however alternatives means of filing the application that were readily available to the Applicant. As an experienced HR professional, it ought to have been within her capability to use one of those alternatives had she taken the step of reviewing the Commission’s website.

[21] The late filing of the application may be attributed to the Applicant’s laptop software issues which on one view weighs in favour of a finding of exceptional circumstances. However, there were alternate means available to the Applicant to file her unfair dismissal application which she neither informed nor availed herself of. In these circumstances I accord little weight to the reason advanced by the Applicant for her delay in filing her unfair dismissal application.

Whether the person first became aware of the dismissal after it had taken effect

[22] It was not in dispute, and I find, that the Applicant was notified of her dismissal on the same day that it took effect on 13 September 2021 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[23] The Applicant states that for the first two weeks following her dismissal she was in discussions with the Respondent in an attempt to settle the matter. Beyond those discussions which were initiated by the Respondent, it is not apparent that the Applicant took any action to contest her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[24] The application was filed one day outside of the 21-day period. In these circumstances I find there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

Merits of the application

[25] The Act requires me to take into account the merits of the application in considering whether to extend time.

[26] The Applicant states that in or around late May 2021 she was diagnosed with chronic anxiety predominantly as a result of exhaustion and burnout and was placed on anti-anxiety medication. Despite her medical condition, the Applicant says she continued to work from home at full capacity and that the Chief Executive Officer (the CEO) was initially supportive of her. That changed, she says, during July 2021 when she noticed that she started to be excluded from meetings and discussions and that the CEO’s behaviour towards her also changed. It was around the same time the Applicant says she noticed that the Respondent’s Chief Operating Officer had started undertaking HR tasks. She formed the view that the CEO was no longer prepared to make adjustments for her mental health condition.

[27] While acknowledging the impact Covid restrictions had on the Tournament Division of the Respondent, the Applicant states that the Respondent posted a profit during 2020, mainly due to JobKeeper funding. According to the Applicant the CEO advised her in or around November 2020 that the Respondent would post a loss in 2021 but despite this forecast loss the Respondent employed eleven (11) new employees between March 2021 and September 2021. She says that seven (7) of these hires filled newly created positions.

[28] The Applicant says she was notified of her termination for reasons of redundancy on 13 September 2021. She states that she was not consulted prior to the decision being made and was not given an opportunity to discuss potential redeployment opportunities. Nor were the Respondent’s internal redundancy policies followed by the CEO according to the Applicant. She also states that she has learnt since her dismissal that Golf Australia and the Respondent have aligned and will share the same office in the future although they remain separate entities. She understands that the HR Manager of Golf Australia will also manage the Respondent’s internal HR as well as that of Golf Australia. The Applicant claims there are several dual roles across both of these two organisations and no other employees of the Respondent have been made redundant.

[29] The Applicant resists the Respondent’s argument that as a Human Resources Manager she was not covered by a modern Award. She refers to the Sporting Organisations Award 2020 14 (the Award) as being applicable and contends that her role was one of an administrative and clerical nature which is captured by the clerical administrative staff classification stream15. The Applicant also refers to the Employment Agreement that she entered into 2017 which specifically included an Individual Flexibility Agreement (IFA) made pursuant to the IFA clause in the Award. She states that both parties proceeded on the basis that the Award covered her in her employment with the Respondent.

[30] The Applicant claims that the various circumstances, including the failure of the Respondent to consult regarding her dismissal, means that the dismissal was not a genuine redundancy and furthermore was unfair.

[31] The Respondent states that confronted with the financial pressures outlined above at [8], it identified that efficiencies in respect of the Applicant’s role could be achieved, those being;

(i) Day to day tasks undertaken by the Applicant such as recruitment and supporting the Respondent’s members could be absorbed by other existing employees; and

(ii) Other more ad-hoc tasks undertaken by the Applicant could be undertaken by Golf Australia at no cost to the Respondent. 16

[32] The Respondent determined based on its review and reallocation of the Applicant’s duties that it no longer required the Applicant’s role to be performed by anyone because of changes in its operational requirements. It further states that as the Applicant was employed as HR Manager – People and Culture, she was not covered by a modern award or an enterprise agreement, the consequence being that there was no obligation to consult pursuant to s.389(1)(b) of the Act. The Respondent says that it nonetheless considered whether there were any redeployment opportunities. It concluded that as there were no open roles with either the Respondent or the PGA International Golf Institute, it was not reasonable in all the circumstances to redeploy the Applicant within the Respondent or an associated entity. 17

[33] 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

[34] 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[35] 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

[36] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

V Crowe, Applicant.

S Hergt for theRespondent.

Hearing details:

2021.
Melbourne (By Microsoft Teams):
29 October.

Printed by authority of the Commonwealth Government Printer

<PR735354>

1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

2 Ibid.

 3 Exhibit R1, Witness Statement of Mr Gavin Kirkman dated 27 October 2021 at [4].

 4 Ibid at [5].

 5 Ibid at [6].

 6   Ibid at [7]-[8].

 7   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 9 Ibid at [40].

 10   Exhibit A6, phone records of Applicant’s calls to Apple Support, A7, emails from Apple Support.

 11   Exhibit A3, Witness Statement of Mr Ben Crowe, dated 18 October 2021.

 12   Ibid at [8]-[9].

 13   Exhibit A1, Download of F2.

 14   MA000082.

 15   Ibid at Schedule A.

 16   Exhibit R1 at [11]-[12].

 17   Ibid at [13]-[15].