s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of the time prescribed in s.394(2) - consideration whether to allow a further period within which application should be made - whether there are exceptional circumstances - not satisfied there are exceptional circumstances - no basis to consider exercising discretion to allow a further period to make application - application dismissed.

[1] Krisloula Brackman (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). She commenced employment with Dressed 4 Success Pty Ltd (Respondent) on or about 2 September 2013 as a sales assistant.

[2] The Applicant's employment was terminated by the Respondent with effect from 26 March 2020. The reason given by the Respondent for the decision to terminate the Applicant's employment was that, in the context of the COVID-19 pandemic, the business would cease trading and consequently be unable to continue to pay the Applicant's wages. According to the Applicant, an employment separation certificate subsequently given to her by the Respondent identified the reason for dismissal as "redundancy".

[3] The Applicant lodged her application on 19 May 2020. 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 Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 16 April 2020. The application was therefore lodged 33 days after that period had elapsed. The Applicant asks the Commission to allow a further period for the application to be made under s.394(3).

[4] I heard the matter, by telephone, on 29 May 2020. Ms Brackman made submissions in support of her application for an extension of time. The Respondent chose not to participate in the hearing and at the date of this decision has, despite a direction to do so, filed no material in relation to either the application for an unfair dismissal remedy or the application for an extension of time.

[5] 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]

[6] 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]

[7] 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.

[8] 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.

[9] 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 consider these matters in the context of the application.

[10] The Act does not specify what reason or reasons for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]

[11] The Applicant raised several matters as reasons for the delay in lodging the application. The Applicant said that she received ambiguous messages about whether her employment had been terminated. The Applicant says that at no time did the Respondent use the words 'dismissed' or 'terminated' and she was initially of the view that she had been stood down rather than dismissed. The Applicant accepted that the Respondent did not tell her that she had been stood down.

[12] The Applicant said that she first became aware that she had been dismissed rather than stood down on 26 April 2020, when she became aware that the Respondent had not nominated her for the JobKeeper payment and had failed to reply to a text message sent by the Applicant in relation to her employment. She said that after realising that her employment had been terminated she was initially unaware that she was entitled to make an application for unfair dismissal and only became aware that an unfair dismissal application could be made after making enquires with the Commission and seeking advice from a friend. The Applicant said that when she became aware that an unfair dismissal application could be made she also understood the timeframe within which such an application must be made, and critically, she became aware that the time for making such an application had already passed by 11 May 2020. That was the date on which she had first attempted to lodge the application. She understood that she would need to seek an extension of time.

[13] I find the Applicant's explanation about her uncertainty whether she had been dismissed on 26 March 2020 unpersuasive and consequently I am not satisfied that the reasons given for the subsequent delay following the expiration of the prescribed lodgement period provide a satisfactory explanation for the delay. In her application, the Applicant states that she was advised on 26 March 2020 of the Respondent's need to "...let me go..." in the context of the COVID-19 pandemic. She was also told on that day of the possibility that she might be reengaged in the future by the Respondent. In common parlance when a small business employer tells an employee that he or she will be "let go", the employer is dismissing the employee. Accompanying the application is a pay slip dated 26 March 2020 that includes amounts paid in lieu of notice and accrued entitlements. In addition, the Applicant said that she received a separation certificate from the Respondent which specified the reason for the dismissal as "redundancy". This is consistent with the reason given by the Respondent at the time the Applicant was told that the Respondent would need to let her go. In the circumstances, I am not satisfied that there was a reasonable basis for the Applicant to conclude that she had been stood down rather than dismissed. I consider the language used by the Respondent in notifying the Applicant of the decision to terminate the Applicant's employment including the suggestion that she might at a later stage be "reengaged", the separation certificate and its contents and the payment in lieu of notice and accrued entitlements is all consistent with a dismissal, not a stand down. The Applicant could not reasonably have concluded otherwise.

[14] In addition, correspondence sent to the Respondent by the Applicant on 11 May 2020, asserting that her dismissal was unfair and alerting the Respondent to the fact that the Applicant would lodge an unfair dismissal remedy application, makes no mention about any confusion about the dismissal or the date it took effect.

[15] However, even if I were to accept the Applicant's explanation for the delay between the period 17 April 2020 and 26 April 2020, the Applicant has provided no acceptable explanation for that part of the delay after 26 April 2020, the date she says she first became aware that she had been dismissed rather than stood down. The Applicant's evidence was that she became aware that she had been dismissed on 26 April 2020 and became aware of her right to make an unfair dismissal application and the time limit prescribed in s.394(2) of the Act on 11 May 2020. I do not accept, as the Applicant contends, that the period 26 April 2020 to 11 May 2020 was a reasonable or necessary period for the Applicant to inform herself of her rights and obligations in relation to an unfair dismissal application. Moreover, I do not accept that on learning of her right to make an application for unfair dismissal and the fact that her application would be lodged outside of the time prescribed for such applications, the Applicant required a further period from 12 May 2020 to 19 May 2020 to complete the application and lodge it. The Applicant has provided no persuasive explanation for the delay between 26 April 2020 and 19 May 2020. One would expect the Applicant, on learning that she had been dismissed rather than stood down and of her right to make an application for unfair dismissal and the fact that her application would be lodged outside of the time prescribed for such applications, to act promptly. In truth, I consider that the Applicant took no step to lodge an unfair dismissal application initially, because she hoped that she might be re-employed if and when the Respondent's business picked up. When it because clear to the Applicant after 26 April 2020, that the Respondent might not honour the promise to reengage her, the Applicant began making enquires and ultimately made this application - some 33 days after the prescribed time for doing so had lapsed.

[16] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for any period of the delay. Consequently this is a matter that weighs against the Applicant in this case.

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

[17] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. That this is so might normally weigh against the Applicant because she had the benefit of the full 21-day period to lodge an application. As I have earlier indicated, I do not accept the Applicant's contention that there was some uncertainty about whether she had been dismissed or stood down. I see no reason why that weighting should change. If the Applicant was genuinely confused about whether she had been dismissed or stood down, such confusion could readily have been clarified by a short conversation or brief correspondence with the Respondent. Nothing of that nature occurred.

[18] The Applicant gave evidence that after 26 April 2020, on first becoming aware that she had been dismissed rather than stood down, she endeavoured to take some steps to dispute her dismissal. In a letter addressed to the Respondent dated 11 May 2020, the Applicant set out factors which she wanted the Respondent to take into consideration, including an absence of consultation prior to her employment being terminated. The Applicant contends that she sought advice from the Commission and a friend who advised the Applicant about the process involved in making an application for unfair dismissal. Further, the Applicant says that she sent the Respondent a text message in relation to her employment.

[19] While I find that the Applicant did not take any immediate action to dispute the dismissal, she did take some steps after 26 April 2020. Those steps were taken well after the time for lodging the application had expired. The written communication was dispatched contemporaneously with an attempted lodgement of the application.

[20] In the circumstances I consider this factor to be neutral.

[21] I cannot identify any prejudice that would accrue to the Respondent if I were to allow a further period within which the application could be lodged. The Respondent elected not to participate and so did not advance any matter going to prejudice. The mere absence of prejudice is not a factor by itself that would point in favour of the grant of extension of time. The absence of prejudice does however favour the Applicant and I would attribute this factor a slight weighting.

[22] I am required to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[23] In essence, the Applicant's contention is that the Respondent failed to fulfil its consultation obligations under the relevant industrial instrument and denied her procedural fairness.

[24] Taking the Applicant's case in a favourable light, it is possible the absence of consultation might result in a conclusion that the dismissal was unfair as well as providing a basis for overcoming a genuine redundancy jurisdictional objection. However, the impact of an absence of consultation on an assessment of whether the dismissal was unfair might be diminished by the circumstances in which the decision needed to be taken. Overall, on the limited material, the Applicant's case is not without merit. That this is so weighs in the Applicant's favour in assessing whether there are exceptional circumstances.

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

[25] 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.

[26] The Applicant did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral

[27] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[28] 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. In my view, this is so, whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay and I consider the confusion explanation as baseless given the content of the dismissal conversation, the payment arrangements and the written separation certificate. In these circumstances this factor weighs significantly against a conclusion that there are exceptional circumstances. I have concluded that Ms Brackman's application for a remedy is not without merit and so this is a favourable consideration. That there is no identifiable prejudice that would accrue to the employer, while not a factor by itself that would point in favour of the grant of extension of time, does favour the Applicant. The other matters which I am required to take into account either weigh against a conclusion that there are exceptional circumstances or are neutral for the reasons stated. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case, attribute weight as I have done and look at those circumstances individually and collectively, I am not satisfied that there are exceptional circumstances.

[29] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to consider exercising my discretion to allow an extension of time. I decline to allow a further period under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

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

Printed by authority of the Commonwealth Government Printer