Fair Work Act 2009

s.394 - Unfair dismissal

The Trustee for The Trimatic Management Services Unit Trust

• [1] On 7 May 2024, Mrs Cheryl D'Rozario was dismissed from her employment with the Trustee for The Trimatic Management Services Unit Trust (Trimatic).

• [2] On 13 June 2024, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. Her application was seventeen days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.

Was the Application made within 21 days after the dismissal took effect?

• [5] The 21-day period does not include the day on which the dismissal took effect."[1] The dismissal took effect on 7 May 2024. The final day of the 21-day period was 28 May 2024 and ended at midnight on that day.

• [6] Mrs D'Rozario's application was filed at 9:21 PM (AEST) on 13 June 2024. It was made 17 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [7] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Mrs D'Rozario first became aware of the dismissal after it had taken effect;

(c) any action taken by Mrs D'Rozario to dispute the dismissal;

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

(f) fairness as between Mrs D'Rozario and other persons in a similar position.

• [8] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

• [9] Mrs D'Rozario explained the reasons for filing her application 17 days late in her written submissions and in oral evidence.

Lack of awareness of the Commission's jurisdiction and the time limit

• [10] In her written submissions she states she was not aware that "she could appeal my dismissal in the Fair Work Commission". She explained that initially she did not tell anyone outside of her family as she wanted to keep it to herself and was in "shock".

The time taken by her direct complaint to Trimatic about the dismissal

• [11] Mrs D'Rozario explains that some delay was caused by the time it took to contest her dismissal directly with Trimatic:

• On Friday 11 May 2024, four days after her dismissal, she sent an e-mail to Ms Feliz Carao at Trimatic contesting the reasons for her termination.
• On Monday 13 May 2024, Ms Carao responded and asked for a preferred time for a meeting to discuss the matter. Ms Rosario indicated she could meet on Wednesday 15 May 2024.
• On Wednesday 15 May 2024, a meeting occurred between Mrs D' Rozario and representatives of HR at Trimatic. At this meeting Mrs D'Rozario was given an opportunity to elaborate on her complaint that she was unfairly dismissed.
• On Monday 20 May 2024, Mrs D'Rozario and representatives of HR at Trimatic had a further meeting. She was told that they had investigated her complaints and reaffirmed the decision to dismiss her on 7 May 2024.
• The outcome of this meeting was confirmed by an e-mail sent at 6:22 PM on 20 May 2024 from Ms Emily Del Rosario, People Advisor at Trimatic.

• [12] On 20 May 2024, Mrs D'Rozario had unequivocally been told the decision to dismiss was being upheld. Mrs D' Rozario still had 8 days to file an application in time.

Commemorations related to her sister passing away

• [13] In her oral evidence, Mrs D'Rozario stated that circumstances related to the passing away of her sister was a reason for the delay. She explained she follows a cultural practice that, if a family member passes away, there are commemorative functions held forty days after the family member passes away. The forty-day time period ended during the time between her dismissal and the making of the application. Mrs D'Rozario explained this had two effects on her capacity to file an application. One was the time taken organising venues, making invitations and the like, the second was the psychological effect on her.

• [14] On 1 June 2024, she was informed by a friend that she could make an application to the Fair Work Commission. On 11 June 2024, ten days later, she contacted the Fair Work Commission to enquire about making an application. She completed an application and filed it on 13 June 2024.

• [15] Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.

• [16] The fact Mrs D'Rozario was unaware of her rights to pursue an application or, of the twenty-one-day time limit, are common circumstances and are in no way exceptional. The fact she complained directly to her employer about to her dismissal may give some explanation for the delay. After that avenue had been exhausted, she still could have filed an application in time.

• [17] The tragic passing away of her sister and the arrangements that needed to be made during this period could provide a good reason for some of the delay but does not explain the entire period.

• [18] On 1 June 2024, Mrs D'Rozario was informed by a friend of her rights to pursue an application. It took Mrs D'Rozario until 11 June 2024, another ten days, to enquire with the Commission. She filed her application on 13 June 2024.

• [19] Most of the reasons she provides for the delay cannot be regarded as exceptional circumstances. The arrangements for the bereavement functions, and the time she spent contesting her dismissal directly with her employer could provide good reasons for part but not all of the delay.

• [20] On 20 May 2024, after it was clear her employer would not reverse the decision to dismiss her, she still had 8 days to file the application in time. It took Mrs D'Rozario another 24 days to file the application.

• [21] The grief Mrs D'Rozario was no doubt feeling and the time taken organise the bereavement functions did not prevent her from contesting her termination with her employer. It does not adequately explain the ten-day gap between being informed of her rights to make and unfair dismissal application and her first enquiry with the Commission on 11 June 2024.

• [22] The reasons Mrs D'Rozario gives for the delay are for the most part, not exceptional. It follows this factor counts against an extension of time being made.

When did Ms D'Rozario first become aware of the dismissal after it had taken effect?

• [23] Mrs D'Rozario was notified of the dismissal on the same day it took effect. She had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by Ms D'Rozario to dispute the dismissal?

• [24] It is not contested that between 11 and 20 May 2024 Mrs D'Rozario disputed her dismissal directly with the HR function at Trimatic.

What is the prejudice to Trimatic (including prejudice caused by the delay)?

• [25] Trimatic conceded there would be no prejudice if an extension of time were to be granted.

• [26] Trimatic operates a call centre business. It contracts to provide call centre staff and infrastructure to take calls for other businesses. The contract Trimatic has with its clients specify rigid KPIs in relation to the manner in which its call centre staff handle calls. This includes KPIs such as:

"• A caller cannot be placed on an answering machine for longer than ten seconds.

• An operator is required to advise clients that calls are being recorded within 30 seconds.
• There are also parameters around answering in bound calls."

• [27] These contractual terms between Trimatic and its clients have consequences for the staff employed by Trimatic. The call centre staff are compelled to comply with these rigid KPIs. For example, a failure to place a caller on an answering machine within 30 seconds is regarded as a "Critical" Level 4 infraction which could be a "customer complaint driver", have "impact on a client", may lead to "brand damage" and is regarded as equivalent to "fraud or a privacy breach"[3]. If staff do not advise a client they are being recorded within 30 seconds, it is regarded as a "substantial" Level 3 infraction.

• [28] Mrs D'Rozario was a team member who had worked for Trimatic (through a transfer of business) and its predecessor for a total of nineteen years. In her written submissions she states, "she had been praised on many occasions for her exceeding KPIs".

• [29] Mrs D'Rozario was subject to a disciplinary process related to Level 3 and Level 4 infractions. She was given a verbal warning on 5 February 2024, had a further meeting on 2 April 2024 and was provided with a "formal warning and due diligence form".[4] On 7 May 2024, her employment was terminated as a result of a call audit which Trimatic alleged established that "between 22 April 2024 to 3 May 2024 she had not actioned ten answering machine calls within 10 seconds", and "she had not responded when a call was answered on 26 April 2024".

• [30] Mrs D'Rozario says her dismissal was unfair for a number of reasons:

• The decision to dismiss her was motivated by a bullying complaint she made concerning a former team leader;
• No consideration was made for the nineteen-year service she had given to Trimatic and its predecessors;
• In the week before she was terminated she was moved out of the work area known as "Client Care" and into a work area called "Variable" which was not familiar to her;
• No attempt was made by her team leader or anyone else to retrain her and help her to understand how to end a call more quickly; and
• No option was given for her to return to "screenings" an area where she excelled and worked for most of her career.

• [31] Trimatic in its submissions and its oral evidence argues:

• Mrs D'Rozario was given multiple opportunities to correct her behaviour.
• Mrs D'Rozario was "subjected to multiple disciplinary actions" for what Trimatic called "work avoidant behaviour". This description is an overstatement - it can more accurately be described as failures to meet its KPIs.
• Trimatic argues she was given an opportunity to respond at each formal meeting.
• The Commission should take into account the post-employment investigation of Mrs D'Rozario's complaint on the matter of procedural fairness.

• [32] There are a number of matters which were not satisfactorily explained in the determinative conference. Trimatic argue the Level 3 and Level 4 infractions on which it based its decision to dismiss Mrs D'Rozario were part of its "policy" known by her. No document was before me to show it was part of the policy other implicitly from general statements within Mrs D'Rozario's position description and its broad policy documents. None of these documents make a specific reference to the particular call management infractions.

• [33] In the determinative conference I was unable to obtain a complete account of the factual circumstances which Mrs D'Rozario claims make her dismissal unfair. At first glance, to terminate the employment for the reasons relied on by Trimatic in the circumstances of her lengthy employment period may be harsh.

• [34] On the basis of the material before me I am unable to assess adequately the process followed by Trimatic leading up to the termination. It is evident that a warning process was undertaken but I had no direct evidence from Trimatic as to what transpired at the various disciplinary meetings.

• [35] As a result of the limited evidentiary material before me I cannot reach an adequate conclusion as to the merits of the application as a factor in determining whether I should grant an extension of time. A definitive conclusion would only be possible at a full hearing where the evidence may be comprehensively heard and weighed.

Fairness as between Ms D'Rozario and other persons in a similar position

• [36] Neither party made submissions on this issue. There is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• Reasons for Delay: The reasons for delay do not provide an adequate explanation for the length of the delay. Some of the reasons such as the time taken in disputing her termination with Trimatic and the reasons relating to the passing away of her sister provide good explanations for part of the delay but they do not explain the entire period. The ten-day period between when she was informed of her rights to make an application and her enquiry to the Commission is not adequately explained. Therefore, this factor counts against an extension of time under s 394(3)(a).
• Action to dispute the dismissal: It is not contested that Mrs D' Rozario took action to dispute the dismissal directly with Trimatic. This factor counts in favour of an extension of time being granted under s 394(3)(c)

• [37] The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Mrs D'Rozario was notified of her dismissal on the same day her dismissal took effect. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
• Prejudice to the employer: There is no evidence of prejudice against Trimatic.
• Merits: On the untested and limited evidence before me, I am not able to make an assessment of the merits as a factor in determining whether I should grant an extension of time. In those circumstances, the merits of the application are a neutral consideration under s 394(3)(e).
• Fairness between persons No submissions were made on fairness arising between Mrs D'Rozario and other persons in a similar position.

• [38] I conclude the reasons for the delay under s 394(3)(a) counts against an extension of time. The action Mrs D'Rozario took to dispute her dismissal with Trimatic count in favour of an extension of time under s 394(3)(c). All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [39] Only one factor counts in favour of an extension of time being granted. One counts against and the rest are neutral considerations. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[5]

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] It was unclear whether this document was before me at the determinative conference.

[5] PR777175.

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