Voula Karidis v Rescue Force Security Australia Pty Ltd
[2023] FWC 679
•22 MARCH 2023
| [2023] FWC 679 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Voula Karidis
v
Rescue Force Security Australia Pty Ltd
(U2023/978)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 22 MARCH 2023 |
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.
This decision concerns an application made by Ms Voula Karidis (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Rescue Force Security Australia Pty Ltd (the Respondent) was notified of her dismissal on 22 December 2022 and that it took effect on 16 January 2023. The unfair dismissal application was lodged by the Applicant on 7 February 2023.
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 16 January 2023 the period of 21 days ended at midnight on 6 February 2023. The application was therefore filed one 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 application for an extension of time to file the unfair dismissal application was set down for conference on 21 March 2023 in advance of which both parties filed material in accordance with directions issued. At the conference on 21 March 2023, the Applicant appeared on her own behalf and gave evidence. The Respondent was represented by Ms N Letunica and Mr S Woodford.
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]
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.
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.
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 and evidence
The Applicant commenced employment with the Respondent on 15 December 2020 as an Appointment Setter on a permanent part-time basis working on the basis of four days and twenty fours per week. She was employed under the Contract Call Centre Award 2020[3] (the Award) and at the time of her dismissal was in receipt of an hourly rate of pay of $26.35. On 24 October 2022, the Respondent wrote to the Applicant advising that her hours of work would be reduced on 2 November 2022 to three days and twenty hours per week. This action was, according to the Respondent, taken because of the difficult financial circumstances it confronted.
The Applicant states that she was advised verbally by the Respondent’s Director, Zoran Letunica, on 22 December 2022 of her dismissal. In doing so, Mr Letunica advised her that the Respondent could no longer afford to maintain her employment, advised that she was being retrenched with three weeks’ notice of her dismissal which would take effect on 16 January 2023. The Applicant claims that during the discussion with Mr Letunica, he had told her to “hold off for a couple of weeks that things may get better and I may still be there.” She further states that Mr Letunica used words like “hoping for a miracle” as he did not know if the company would still be open and trading in 2023.
The Applicant who is a single mother with three dependent children, further states that she was advised on 13 January 2023 that she was required to vacate the rental property she lived in by 23 March 2023. This she says led to her having to spend a large amount of time in January and February 2023 searching for suitable alternate rental accommodation for herself and her children. The Applicant was unable to find suitable accommodation, as a consequence of which she and her children are currently living with her parents. The Applicant also states that she attended the Respondent’s Christmas party on 13 January 2023 during which she spoke with Mr Letunica who she says again encouraged her to “hold off a few more weeks” in case urgent business emerged for the Respondent.
On 30 January 2023, the Applicant’s eldest child was taken to the emergency department at Monash Hospital[4] in relation to a non-life threatening injury following which she was required to undergo surgery on 2 February 2023[5].
The Applicant’s employment ceased on 16 January 2023 in accordance with the notice given on 22 December 2022. She did however attend a meeting on 23 January 2023 with Mr Letunica and Mr Andrew Thompson to discuss outstanding monies owed to her. When it came to discussing commissions she believed she was entitled to, the Applicant says Mr Letunica questioned her entitlement to such payments even though she claims to have received such commissions for appointments made in 2021. According to the Applicant, Mr Letunica agreed to consider the matter of claimed commissions further but did not subsequently respond to the Applicant.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 6 February 2023. The delay is the period commencing immediately after that time until 7 February 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[6]
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.[7] 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 delay[8].
The Applicant submits that in the period following her dismissal she had a number of matters she was dealing with that explained her delay in filing her application. She specifically relies on a number of grounds including; the shock and distress of being notified of her dismissal, her efforts to secure alternate accommodation following receipt of notice on 13 January 2023 to vacate her existing rental property by 27 February 2023, hospital admittance of her eldest child on 30 January 2023 and subsequent surgery, attempts by her to resolve outstanding commission payment entitlements with the Respondent and caring responsibilities for her three children.
I accept without reservation that the Applicant was upset at the loss of her employment in circumstances where she believed she was making a good contribution to the Respondent’s business. Being distressed or upset at the loss of employment is not however unusual or exceptional. In fact, I would regard it as quite normal and certainly not unusual to be upset and distressed at the loss of one’s employment. I also note that the Applicant was notified of her dismissal on 22 December 2022, worked out her notice period and attended the Respondent’s Christmas party on 13 January 2023 out of a desire to remain on good terms with the business owner and other staff members. To the extent that the Applicant may have been upset at her dismissal, she had a reasonable period of time to adjust to her changed circumstances prior to the dismissal taking effect. I am not satisfied in these circumstances that the Applicant’s claimed shock and distress satisfactorily explains her delay in filing the unfair dismissal application.
I also accept that being a single mother with caring responsibilities for three dependent children carries with it significant challenges. Those challenges and stressors will undoubtedly have been magnified in circumstances of the Applicant’s loss of employment. I do not however regard those caring responsibilities as unique, out of the ordinary, unusual or satisfactorily explained the delayed filing of the Applicant’s unfair dismissal application.
The Applicant also relies on what she believes were delaying tactics on the part of the Respondent designed to discourage or delay her making an unfair dismissal application. This she submits may be seen in comments of the Respondent on 22 December 2022 and 13 January 2023 to the effect that she “should hold off for a few weeks” in which the prospect of her retaining or regaining employment was held out by Mr Letunica. The Applicant also refers to Mr Letunica agreeing in the 23 January 2023 meeting to further consider the commission payments she was seeking. The Applicant submits that these actions discouraged her from pursuing her unfair dismissal application at an earlier point as she held out the hope that she would either retain or regain her employment or obtain the commission payments she believed she was entitled to.
I accept that the Applicant may have been reluctant to pursue an unfair dismissal application in circumstances where she was trying to resolve claimed outstanding commission payments with the Respondent and where she also thought there may have been some chance of her job continuing. While these circumstances may have discouraged her from initially pursuing her application, there was nothing before me to suggest the Respondent coerced the Applicant into not making her application at an earlier time then she did. Those matters were not a barrier to her making an application at an earlier time and do not adequately explain why she failed to file her application within the 21-day period.
Turning to the admission of the Applicant’s eldest daughter to the emergency department of Monash Health at Clayton on 30 January 2023 following an accident near her home, the Applicant agreed that the injuries suffered by her daughter were not life threatening and that her daughter was released to go home after treatment at the hospital although she was required to return to undergo some plastic surgery on 2 February 2023. While the admission of a child to hospital can be a distressing event for a parent, the evidence before me does not indicate the Applicant’s daughter’s condition was so serious or debilitating that it prevented the Applicant from making her application at an earlier time. I also note the injury occurred on 30 January 2023 by which date the Applicant had already had two weeks within which to file her application.
Turning finally to the Applicant’s efforts to secure alternate accommodation following notice to vacate her rental accommodation by 27 February 2023. The Applicant claims that she “spent the whole period looking for houses, searching for properties online, doing weekday and weekend inspections and packing my home for myself and my children”. Beyond that broad assertion, no details were provided of the number of rental applications made, the number and dates of property inspections attended or the dates on which she commenced packing up her furniture and possessions, noting that the date required to vacate her property was 27 February 2023, some three weeks after the 21-day filing date for her unfair dismissal application. In the absence of more compelling evidence, I am unable to conclude that the Applicant’s search for alternate accommodation prevented or delayed the filing of her unfair dismissal application.
I accept the Applicant’s submission that she was dealing with a number of matters in the wake of her dismissal on 16 January 2023 including her family caring responsibilities, seeking new rental accommodation and pursuing with the Respondent what she believed were outstanding commission payment entitlements. She was also anxious to preserve a relationship with her former employer and was consequently reluctant to pursue an unfair dismissal application. All of these circumstances may assist explain why she did not prioritise her unfair dismissal application. However, they do not adequately explain why she did not file her application at an earlier time in circumstances where she agreed she was aware of the 21-day time period and acknowledged that completion of the application form took less than ten minutes.
In the above circumstances I do not accept the explanations provided as having prevented the Applicant from lodging the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant was notified of her dismissal on 22 December 2022 and that her employment ceased on 16 January 2023. In these circumstances I am satisfied that she 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
While the Applicant met with the Respondent on 23 January 2023 to discuss outstanding monies owed to her, it is not apparent that the Applicant took any action to contest her dismissal after it took effect on 16 January 2023, 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
The application was filed one day outside of the 21-day period. It is not in dispute, and I find in the circumstances, 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
The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that the dismissal was unfair on a number of grounds including that she was not advised that her job was at risk because of a shortfall in sales being generated and that her sales and commission targets were not made clear to her during a meeting on 7 November 2022. She further argues that the role of generating sales is still required by the Respondent, she was not given training on camera CCTV equipment and costing information, she was the only staff member in Australia generating sales, she believed she was progressing well and was not given any warnings or opportunities to improve her performance. Finally, she states that the dismissal was not a genuine redundancy, she was not offered redeployment and was not given any written notice of her termination.
The Respondent rejects that the dismissal was unfair. It argues that it became apparent in February 2022 that the Applicant’s role was not meeting the needs of the business. A meeting was held with the Applicant on 7 November 2022 to discuss changing her role including revising her commission payments structure. It was, according to the Respondent, foreshadowed at the November 7 meeting that if matters did not improve, the Applicant’s employment would be at risk. In these circumstances the Respondent contends that the Applicant was on notice regarding the risks to her employment.
It is evident to me that the merits of the Application are likely to 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. 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
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.
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
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 and outlined above, 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) of the Act. 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 Karidis, Applicant.
N Letunica and S Woodford for the Respondent.
Hearing details:
2023.
Melbourne.
March 21.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] MA000023
[4] Exhibit A3, Medical Certificate issued by Monash Health for Catherine Paris, dated 30 January 2023
[5] Exhibit A5, Medical Certificate issued by Monash Health for Catherine Paris, dated 2 February 2023
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[8] Ibid at [40].
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