s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time.

• [1] Ms Kerry Grey (Ms Grey or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is CBH Group (CBH or the Respondent).

• [2] Ms Grey's application says she was notified of her dismissal on 27 November 2021 but that her dismissal took effect in May 2021. The application was made on 6 January 2022.

• [3] The Respondent's response states the Applicant's dismissal took effect on 28 May 2021.

• [4] The Respondent objects to the application on the grounds that it asserts the Applicant was not dismissed, the Applicant's employment does not meet the minimum employment and the application is lodged more than 21 days after the dismissal took effect.

• [5] The application has been made more than 21 days after the alleged dismissal took effect.

• [6] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

• [7] Consequently, on 14 January 2022 the Fair Work Commission's staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

• [8] The Applicant subsequently provided a written response.

• [9] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

• [10] In the application as filed the Applicant explains that the past practice of the Respondent has been to contact herself in late October or early November with the start date for the season. Work usually continues on to April or May of the following year. On receiving no contact from CBH she rang on 26 November 2021 and was informed her contract had been cancelled in May 2021.

• [11] In short, the Applicant was not aware in May 2021 that her contract in her words had been cancelled.

• [12] It is apparent the Applicant was a casual employee.

• [13] In a letter attached to the application addressed to the Fair Work Commission the Applicant explains that after she was informed on 26 November 2021 that her contract had been cancelled, she spoke with CBH staff who told her they would look into the situation but later told her that HR were in charge. Then when she contacted HR on 30 December 2021, she was told they will no longer speak to her and ended the call.

• [14] In the further explanation the Applicant provided to the Fair Work Commission by email on 17 January 2022, the Applicant repeats the explanation of her enquiries she made with CBH both on-site, by phone and by email. She also states that she was ignorant of the timeframe to submit an unfair dismissal.

• [15] Considering the Applicant's reasons for the delay in making the application I accept that the Applicant not being aware that her contract had been "cancelled" in May 2021 until 26 November 2021 is an acceptable explanation for that part of the delay in making the application.

From 26 November 2021 until the date of making the application there are however no acceptable reason given for the delay.

• [16] It is well-established that employees not being aware of the timeframes in the legislation is not an acceptable reason for delay. The choice the Applicant made to pursue her concerns directly with the Respondent between 26 November 2021 and the end of December 2021 did not in any way prevent her making this application during that time. Further, no explanation is provided for why the application was not made immediately after 30 December 2021 when the Respondent would no longer speak to her.

Did the Applicant first became aware of the dismissal after it had taken effect?

• [17] The Applicant was only made aware of her dismissal which allegedly occurred in May 2021 on 26 November 2021.

• [18] The Applicant did speak to the Respondent disputing her alleged dismissal.

Prejudice to the employer (including prejudice caused by the delay)

• [19] In this case the lengthy delay is not likely to cause real prejudice to the Respondent if a further period to apply was allowed.

• [20] In her materials the Applicant submits that she was not what she calls a harvest casual but was a "permanent casual" who remained employed until April or May of each season. She says she fully expected to start work for the 2021 - 2022 harvest.

• [21] She says she did not receive any phone calls or voice messages from CBH in May 2021 on her mobile phone. She says it is not correct that she was unable to be contacted at this time.
• [22] She says that knowing that work will be available for the grain harvest she did not seek work elsewhere during the year rather waiting for the five to six solid months of work she would have with CBH.

• [23] The Respondent's position is that in addition to objecting on the grounds that the application is made out of time it submits the Applicant does not meet the minimum employment for continuous service. It submits she was engaged by the hour from time to time when work was offered, and the Respondent provided no guarantee of ongoing employment.

• [24] The Respondent submits the Applicant's casual employment was not on a regular and systematic basis and she could not have a reasonable expectation of continuing employment on a regular and systematic basis.

• [25] The Respondent submits the Applicant worked irregular hours which does not demonstrate a clear pattern or set roster of hours. It submitted the Applicant had a number of extensive breaks where she would not perform a shift for the Respondent for several months. It is submitted that typically the Applicant was not advised of her work hours until the day prior to a shift.

• [26] The Respondent submits the employment came to an end in May 2021 when the Applicant was unable to be contacted by the Respondent. It is submitted that the contract therefore was not ended at the Respondent's initiative.

• [27] Considering the merits of the application is apparent that there are a number of additional jurisdictional hurdles the Applicant would have to successfully overcome before the merit of her application could be considered at any substantive hearing of this application.

• [28] On its face seasonal agricultural casual employment such as this, by its very nature, is unlikely to meet the requirements of section 384 (2) of the Act. Consequently, it is more likely than not that this aspect of the Respondent's further jurisdictional objections would succeed. This weighs against granting an extension of time.

• [29] The balance of the arguments between the parties are neutral considerations given the limited material before the Fair Work Commission.

Fairness as between the person and other persons in a similar position

• [30] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

• [31] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for her to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.

• [32] Consequently, the Fair Work Commission is not empowered to extend time for the Applicant to make this application.

• [33] This application has been made out of time and so must now be dismissed. An Order [PR739129] to that effect will now be issued.

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