Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - unfair dismissal application filed out of time - circumstances not exceptional.

• [1] This decision concerns an application by Ms Lauren Elise Moutafis under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (the application). She was employed as a Sales and Marketing Coordinator by IA Support Pty Ltd T/A Imaging Associates (the Company) from 1 July 2014 until her employment with the Company ceased on 14 January 2022. Ms Moutafis does not dispute that she resigned but says that she was forced to do so because of the actions of the Company. It in turn contends there was no dismissal because Ms Moutafis resigned. Alternatively, the Company contends that if there was a dismissal, the application was filed out of time and the Fair Work Commission (the Commission) should not grant an extension.

• [2] Section 394(2) of the Act provides that an applicant for an unfair dismissal remedy must lodge an application within 21 days after their dismissal took effect. However, the Commission may allow a further period for lodgement in exceptional circumstances.

• [3] I must decide whether I should exercise my discretion to allow Ms Moutafis a further period of lodgement of her application.

• [4] After taking into account the views of Ms Moutafis and the Company regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference.

• [5] At the determinative conference on 8 April 2022, Ms Moutafis was self-represented, and the Company was represented by HR Legal.

• [6] Ms Moutafis gave evidence on her own behalf.

• [7] Ms Silvia Cseh, People & Culture Manager, gave evidence on behalf of the Company.

• [8] In this case, if there was a dismissal, it occurred on 14 January 2022. Ms Moutafis submitted that she resigned from her job by way of a letter dated 17 December 2021. The reason she gave was that, after a period of maternity leave, she believed that she would be returning to work in a significantly inferior role to the one she held prior to taking maternity leave. Ms Moutafis says, "I have never argued that I was dismissed, I resigned as a result of my employer's adverse action - as I clearly stated in my resignation letter."[1] For the purposes of considering whether the application was filed within time and, if not, whether an extension of time should be granted, I will proceed on the basis that the date of dismissal was 14 January 2022, as Ms Moutafis contends.

• [9] The 21-day period for lodging an unfair dismissal application, therefore, ended at midnight on 5 February 2022. Ms Moutafis' application was lodged on 22 March 2022. It was 46 days out of time. In order for Ms Moutafis' application to proceed, she requires an extension of time.

• [10] Section 394(3) of the Act sets out a range of factors that are to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

• whether the person first became aware of the dismissal after it had taken effect;

• any action taken by the person to dispute the dismissal;

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

• fairness as between the person and other persons in a similar position.

• [11] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but not necessarily circumstances that are "unique, or unprecedented, or very rare".[2]

• [12] The Act does not specify what reason 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]

• [13] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[4]

• [14] At the determinative conference, Ms Moutafis stated that there was "no single exceptional circumstances. It was just a lot of little things that led to the lateness".

• [15] Ms Moutafis says that the main reason for her delay was that she was misled. She says specifically that the information given to her by a representative was incorrect because she had been told she was ineligible to pursue an unfair dismissal claim as she had resigned. At the determinative conference, she said that her reference to a "representative" was not a paid representative but someone she had spoken to at "FairWork". Ms Moutafis was unable to say if this person was from the Commission or from the Fair Work Ombudsman (FWO). She admits that "[i]t could have been a miscommunication between us. At the time, I didn't find the information particularly helpful and didn't get a reference of the conversation."[5]

• [16] Ms Moutafis says that she made this call to "FairWork" during 15 January to 22 January 2022, whilst isolating for COVID-19 reasons and that she did so to assess her options. She says her goal was to get an independent review of her employer's conduct. Ms Moutafis says the conversation was brief and she was asked to make contact again when she had her employment contract on hand. Although Ms Moutafis did locate the contract, she did not call back to continue the conversation.

• [17] She says her enquiries about any applicable time limits to make an application arose from discussions she had on Christmas Day at a family function where it was suggested to her that she pursue an unfair dismissal claim. As per paragraph 15 above, Ms Moutafis says she was told by "FairWork" that she was ineligible because she resigned, so the 21-day time limit did not apply.

• [18] Ms Moutafis says that she found out about "constructive dismissal" in mid-February 2022 from a response to an online post she had made on 9 February 2022. Ms Moutafis says that during the weekend of 19 March to 20 March 2022, she asked her friend who works in Human Resources (HR) about constructive dismissal, and he advised her that this would fall under unfair dismissal laws with the Commission. She says she was surprised by this information as she previously had been told she was ineligible due to the fact that she had resigned and was not dismissed. Ms Moutafis says this meant the 21-day time limit did apply. She says that it was only when she found the Form F2 Application and information about unfair dismissal and the term "constructive dismissal" regarding employees who resign on the FairWork website that she was made aware that the 21-day rule did apply to constructive dismissal claims. She says she asked her mother to look after her children and she completed her application.

Primary carer for young children and family illness

• [19] Ms Moutafis submits that she is the primary carer for her young children and that she runs her household. She says her resignation has also meant that she has had to update contact details with various organisations, update her resume and search for a new role. Ms Moutafis says that, during this time, her family had vaccinations and contracted colds and "gastro"' a few days apart between 20 February and 5 March 2022.

• [20] Ms Moutafis says that whilst she was trying to process her emotions, she continued her research. This research was aimed at finding how she could instigate an independent review into the Company's behavior.

• [21] Ms Moutafis says she has never claimed that she had been dismissed, rather that she resigned as a result of her employer's adverse action as she says she clearly stated in her resignation letter.

• [22] The Company submits that none of the reasons as articulated in the application are "exceptional", as they are not "out of the ordinary course, unusual, special, or uncommon".

• [23] The Company submits that many persons are primary carers and, as such, the notion of being a primary carer in itself is not "exceptional". Therefore, it submits that this is not something that justifies a significant delay in filing an application.

• [24] The Company submits that in the matter of Knott v MSS Security,[6] the Commission held that the applicant's carer responsibilities, which required him to look after his wife after she was discharged from the hospital with a back injury, did not amount to exceptional circumstances. Further, the Company says that in the matter of Hoger v Bondall Pty Ltd,[7] where the applicant was required to care for her mother and grandmother whilst her father was hospitalised, the Commission came to the same conclusion; that the applicant's carer responsibilities did not constitute exceptional circumstances.

• [25] The Company submits that these cases show that there is a high standard required to demonstrate that carer responsibilities amount to exceptional circumstances justifying an extension of time.

• That Ms Moutafis' lack of understanding about her ability to challenge her own resignation and the assertion that Ms Moutafis was initially unaware of the concept of "constructive dismissal" are not exceptional. The Company contends that Ms Moutafis is clearly capable of filing an application and informing herself of the ability to file an application. The Company submits that, further, as per the witness statement from Mr Rickardo Rocco Costa filed by Ms Moutafis, she had the ability to obtain advice in relation to her resignation; she simply seemingly only chose to seek this advice from Mr Costa on or about 19 March 2022. Therefore, the Company submits that Ms Moutafis' ignorance in relation to the statutory time limit with respect to the filing deadline is not exceptional.

• Ms Moutafis' assertion that she relied on advice from a "representative" about the circumstances of her employment and her ability to have this independently reviewed do not amount to "exceptional circumstances". The Company submits that:

• The advice Ms Moutafis seemingly relied upon is not incorrect. A person who has resigned their employment is not "dismissed" within the meaning of the Act and, if Ms Moutafis was seeking an "independent review", such a review is not necessarily subject to a time limit;

• Ms Moutafis has not provided any evidence of relying on advice from a representative (apart from her witness statement dated 4 April 2022), she has not provided evidence as to the capacity in which the representative was engaged and she has not provided evidence of when exactly the advice was provided;

• Whilst Ms Moutafis has stated she spoke to "FairWork" in relation to the resignation between 15 January and 22 January 2022, Ms Moutafis has failed to provide particulars or evidence in relation to this conversation; and

• Ms Moutafis' assertion that the delay could have been due to "a miscommunication between [Ms Moutafis and the representative]" is not exceptional.

• [27] The Company further submits that Ms Moutafis is required to provide credible reasons for the whole of the period in the delay (i.e. all 46 days). The Company submits that Ms Moutafis has failed to do so.

• [28] Ms Moutafis says that the reasons for the delay were family illness, that she received inaccurate advice and had caregiving duties, as well as "a lot of little things".

• [29] Ms Moutafis had been on parental leave. Whilst appreciating Ms Moutafis' challenging situation in her being the main carer for her two young children, her circumstances are not out of the ordinary.

• [30] There is no evidence that Ms Moutafis' carer's duties changed after her dismissal or beyond the prescribed 21-day period for making an application. Her carer's duties are an ongoing responsibility. The period from 20 February to 5 March 2022 is nominated by Ms Moutafis as a period during which the family variously had vaccination shots, colds and "gastro". Caring for young children includes caring for them during illness and, in the absence of any evidence that the illnesses or any caregiving involved matters that were out of the ordinary or exceptional, this is not an acceptable reason for the delay.

• [31] In her submissions, Ms Moutafis referred to receiving advice from a "representative". Ms Moutafis gave evidence that her reference to a representative was not to a paid agent but to an employee at "FairWork" and that this could have been the Commission or the FWO. The current matter does not involve representative error.

• [32] Ms Moutafis may have been given inaccurate information by a government agency but, other than her assertion, there is no other evidence to that effect. In any case, Ms Moutafis qualifies her statement that she was given inaccurate information when she refers to the relevant conversation and says, "it also could have been a miscommunication between us. I didn't find the information particularly helpful and did not get a reference of the conversation."[8] There is insufficient evidence for a finding that either the Commission or the FWO gave incorrect advice to Ms Moutafis.[9]

• [33] In her evidence, Ms Moutafis says that she first received advice regarding the time limit to make an unfair dismissal application on Christmas Day. She made a phone call the day after her last day of employment and says that she was looking at webpages from both the Commission and FWO and was confused by both of them.

• [34] Ms Moutafis says that in mid-February 2022 she became aware of the concept of "constructive dismissal"; and she believed that this could be relevant to her circumstances. She waited until the weekend of 19 to 20 March 2022 to ask a friend who works in HR about constructive dismissal before filing her application on 22 March 2022. These are not exceptional circumstances explaining the delay beyond the 21-day period.

• [35] There was no representative error. The reason for the delay given, being unfamiliarity with the relevant law, is not a good reason for the delay. There are copious resources on the Commission's website and Ms Moutafis gave evidence that she started to look at this and the FWO website the day after her resignation took effect.

• [36] Ms Moutafis says that, after 7 years of service, the events that unfolded were a significant adjustment and shock for her. She says she was adapting to life with two children while preparing herself to go back to work.

• [37] I accept that stress accompanied the circumstances in which Ms Moutafis' employment ended and that Ms Moutafis was upset and exercised about it during some or all of the period of the delay. However, absent any medical evidence detailing the impact that any anxiety or other illnesses had on Ms Moutafis' capacity to lodge the application, I do not accept the explanation as preventing Ms Moutafis from lodging the application on time or at a time earlier than the date on which this application was lodged.

• [38] I am not satisfied that Ms Moutafis provided an acceptable or reasonable explanation of the delay. Although the circumstances to which Ms Moutafis refers are difficult ones, I do not consider them, individually or together, to be exceptional. This factor weighs against an extension of time.

When did Ms Moutafis first become aware of her dismissal?

• [39] Ms Moutafis resigned in a letter dated 17 December 2021, giving notice that her last day at work would be 14 January 2022. The resignation was accepted by the Company. This issue is not in dispute and Ms Moutafis had the full period of 21 days to lodge the unfair dismissal application. This factor does not weigh in favour of a grant of additional time to make the application.

Any action taken by Ms Moutafis to dispute the dismissal

• [40] Ms Moutafis says that she contacted "FairWork" and attempted to get an "independent review" of the conduct of her employer in relation to the reason for her resignation.

• [41] The Company submits that since Ms Moutafis's employment ceased, there is no evidence that she sought to rescind, or in any other way challenge, the resignation.

• [42] The Company notes that Ms Moutafis claimed she sought advice from a representative in relation to the resignation. The Company submits that this in itself is not "action taken" to dispute the resignation. It submits that, at best, this may be viewed as Ms Moutafis receiving advice in relation to her employment rights.

• [43] The Company submits that this weighs against granting an extension of time for Ms Moutafis to file the application.

• [44] I do not consider the steps taken by Ms Moutafis to constitute "action to dispute the dismissal".

• [45] This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [46] Ms Moutafis submits that the Company would not suffer prejudice if an extension of time were granted because "they have a whole team of lawyers looking into this and I think my application is quite strong".

• [47] The Company submits that it would suffer prejudice if an extension of time were granted because a 46-day delay is a long delay, but the Company does not identify the precise nature of the prejudice. It further submits that, should the Commission find that there is an absence of prejudice to the Company, a mere absence of prejudice is an insufficient basis to grant an extension of time.

• [48] I cannot identify any prejudice that would accrue to the Company if an extension of time were granted. The absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [49] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here.

• [50] Ms Moutafis says that even though she filed her application late, she made the application because she felt she had been treated unfairly. She says she was misled and blindsided.

• [51] Ms Moutafis says that she was due to return to work from maternity leave on 1 February 2022 and that her position was changed with limited communication explaining the changes and how she would be affected. She says she was under the impression there were laws in place that protected employees on maternity leave.

• [52] Ms Moutafis says that, despite her title, she performed all the Marketing Manager roles and responsibilities but that this role was not offered to her. She says she resigned as the role proposed for her was significantly inferior to her previous position and she feels she was penalised for taking time away to have children. Ms Moutafis says she voiced these concerns in her resignation letter and at her exit interview.

• [53] The Company says that Ms Moutafis acknowledges that she resigned from her employment.

• [54] The Company says that Ms Moutafis seemingly submits that she believes she had no other choice but to resign after the Company sought to discuss with her potential changes to her role in light of structural changes in the Company's business.

• [55] The Company submits that this is misconceived. It says there were several other options apart from resigning available to Ms Moutafis and that an employer is entitled to engage in workplace change, even if those affected by the change are absent from work at the time.

• [56] The Company submits that on multiple occasions it sought to ensure Ms Moutafis was content with her decision to resign.

• [57] The Company submits that, based on the above and Ms Cseh's witness statement, Ms Moutafis' case is not strong and lacks merit. Specifically, it contends that, should the Commission find there are exceptional circumstances justifying an extension of time for the application to proceed, Ms Moutafis still needs to prove she was dismissed within the meaning of s.386 of the Act.

• [58] Having examined these materials, 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. Ms Moutafis has a prima facie case, to which the Company raises an apparent defence. I do not consider the merits of the present case to 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

• [59] In relation to this consideration, Ms Moutafis said, "in allowing this to proceed it actually benefits other people in my situation because the process isn't easy...especially when you have young children and you're on parental leave". However, this does not relate to the question of "fairness as between the person and other persons in a similar position".

• [60] The Company submitted this was not a relevant factor in this matter.

• [61] 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. In the present case, neither party brought 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 consideration.

• [62] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Moutafis, I find that there are no 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.

• [63] An order to this effect will be issued with this decision.

[2] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [39].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349, [29]-[31].

[6] [2017] FWC 6491.

[7] [2017] FWC 6067.

[9] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1, [27].

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