Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - application made outside of the time prescribed - whether there are exceptional circumstances - whether discretion to extend should be exercised - extension of time refused - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 4 February 2021. Ms Lidia Li (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[2] The Applicant was, until her dismissal, employed by Slim Form Australia Pty Ltd (Respondent or company) as a Warehouse Supervisor. She had been employed with the Respondent for a period of approximately 32 years.

[3] On or about 21 December 2020, Ms Li received a written notice of her dismissal on what are said to be redundancy grounds. The reasons for the redundancy or dismissal on redundancy grounds are set out in a letter given to the Applicant on 21 October 2020 and carry that same date. In essence, the company said in this letter that as a consequence of the financial position that it has found itself in because of government restrictions on economic activity in response to the COVID-19 pandemic, that it has suffered a downturn and has made a decision that it will no longer require the position of Warehouse Supervisor. In the result, that position was redundant and the Applicant's employment was to be terminated as a consequence. The date on which the dismissal was to take effect was 25 November 2020, which provided Ms Li with five weeks' notice.

[4] It is apparent on the oral evidence that Ms Li's last day of attendance at work was 29 October 2020, that the company's premises were closed on 2 and 3 November because of Melbourne Cup public holiday and the Applicant provided a medical certificate indicating her unfitness to work from 4 November 2020, which remained the case until the day the employment ended on 25 November 2020.

[5] Applications for an unfair dismissal remedy under s.394 of the Act need to be made within the time specified in s.394(2), which is within 21 days after the dismissal took effect.

[6] Ms Li's application was lodged on 18 December 2020. Based on the date on which the dismissal took effect, a valid unfair dismissal application needed to be lodged by no later than 16 December 2020, with the consequence that the application is outside of the time prescribed - it is two days late. On the material available, it is evident that the application was posted on 17 December 2020, which is one day after the time for lodging a valid application had lapsed.

[7] The Act allows the Commission to consider extending the period within which an unfair dismissal remedy application may be lodged. It provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account several matters. These matters briefly are: the reason for the delay, whether the Applicant first became aware of the dismissal after it took effect, any action that the Applicant took to dispute the dismissal, any prejudice to the employer, the Respondent, including prejudice caused by the delay, the merits of the application and considerations of fairness as between the Applicant and any other person in a similar position.

[8] Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. Weight needs to be ascribed to each matter, taking into account the evidence. Individual matters might not, viewed in isolation, be particularly significant so it is necessary to consider not only those matters that I have identified individually but also collectively and then ask whether taking those matters into account there are exceptional circumstances. Exceptional circumstances, briefly, are circumstances that are unusual or special or uncommon, but they do not have to be unique. They do not need to be unprecedented. They do not have to be particularly rare. Nevertheless, I need to be satisfied that there are exceptional circumstances before I consider whether I should exercise my discretionary power to extend the time. I turn now to deal with each of the matters based on the material that I have before me and the submissions that the parties have made and the answers to the questions that I have asked.

[9] The first matter is the reason for the delay. The Act does not specify what reasons for delay might tell in favour of granting an extension of time or weighing in favour of the exercise of discretion to extend time. However, the Commission has in cases that it deals with referred to what might be described as an acceptable or reasonable explanation for the delay. The absence of an explanation for any part of the delay will usually weight against an assessment of whether there are exceptional circumstances, and a credible, reasonable explanation for the whole of the period of the delay will usually weigh in the Applicant's favour.

[10] In the present case, the Applicant contended both during the hearing and in her written application that in substance she was not aware of her right to make an unfair dismissal remedy application. She could not quite specify when she learned of that right during her oral submissions. In her written application, she contended that she only found out about the fact that she could make this application on 16 December 2020, which appears to be the last day on which a valid application could have been made. Generally, the explanation given amounts to an explanation that, 'I was ignorant of the law. I did not know what the law was, I did not understand what my rights were.' Ignorance of the law or of statutory time limits will not generally provide a reasonable or acceptable explanation for a delay in lodging an unfair dismissal remedy application under the Act. If a person is aggrieved by a dismissal, they bear some onus to make some inquiry about their rights.

[11] In this case, apart from the conversation she had with her friend sometime in late December 2020, there were resources available to her where she could have asked about her rights. The Applicant had communications with the CFMMEU, of which she was a member, and which made representations to the company about the circumstances. If the Applicant was aggrieved about the circumstances of her dismissal, given how early the union became involved in this matter, there were opportunities for her to make representations to the union about her dismissal. Had she done so, it would doubtless be the case, given the union's experience in this jurisdiction, it would have said to her at least, 'You can make an application for an unfair dismissal remedy.'

[12] It is not enough to simply say, 'I did not know about the law,' because that is probably the position of a many people who have been dismissed. Ignorance of the law or of statutory time limits does not in and of itself provide an acceptable explanation for the delay. There is no other explanation that is given for the delay.

[13] The inadequacy of the explanation is compounded by the fact there was opportunity, because the company gave such a long period of notice before the dismissal took effect, for Ms Li to seek advice for a period much longer than 21 days. There was the period of five weeks before the dismissal took effect and there was the period of up to 21 days after the dismissal took effect. The Applicant knew she was to be dismissed well before the date the dismissal took effect but made no inquiry about her rights. In that context, an explanation that 'I was not aware of my rights,' does not provide me with satisfaction that there was a reasonable or acceptable explanation for the delay. Consequently, I am not satisfied that there was an acceptable explanation for any part of the delay and in the circumstances of this case that matter weighs against the Applicant.

[14] Next is the question of whether the Applicant became aware of the dismissal after the date it took effect. On the undisputed facts in this case, Ms Li became aware of the dismissal five weeks before it took effect. She had notice in advance and in these circumstances, the fact that she was aware of the dismissal in advance and did not become aware of it afterwards, is a factor that weighs against the Applicant.

[15] The next matter that I need to take into account is whether the Applicant took any step to dispute her dismissal. It is certainly the case that representations were made by the union on the Applicant's behalf about the dismissal. These are set out in correspondence between the union and Mr Moss for the Respondent on or about 22 October 2020. I am prepared to accept that that at least amounts to a step to dispute her dismissal but the substance of the disputation in the letter disputes not the fact of the redundancy or the fairness of the dismissal but rather the absence of consultation or alleged consultation and proposes a course to resolve that matter by the payment of some additional sum. The company agreed to that course of action and paid the additional sum sought, and so to the extent that there was some action taken, given the nature of the protest and its resolution, I consider that matter to be neutral.

[16] As to prejudice, Mr Moss, appearing for the company, properly conceded that no prejudice would be suffered if an extension of time were granted and I accept that. The absence of prejudice in and of itself is not a basis for extending time but I am prepared to accept that the absence of prejudice weighs in favour of the Applicant.

[17] The next matter concerns the merits of the application. Because cases involving applications for extension of time are necessarily dealt with on an interlocutory basis there is not the usual opportunity to test evidence about the merits of the case. Nonetheless, I am required to make some assessment and I do. The principal basis upon which the Applicant alleges that her dismissal was unfair concerns the fact that she had been employed for a significant period of time. Doubtless, that is the case in a general sense and it must be accepted that a period of lengthy employment with an employer is a relevant consideration in assessing the unfairness of a dismissal. But it is not the only matter. In this case, the employer alleges that there was a dismissal because of redundancy. It also contends the dismissal was a case of genuine redundancy within the meaning of the Act. If it is able to establish it no longer required the job to be performed by anybody because of changes to its operational requirements, that it complied with its obligation under the relevant award to consult about the redundancy and that it was not reasonable in the circumstances to redeploy the Applicant, then it will have made good that contention and the application would be dismissed in any event. But even if it is not able to establish that the dismissal was a case of genuine redundancy in a technical sense, it nonetheless appears on the face of the materials that I presently have that there was a redundancy as that term is commonly understood. That is, the employer faced financial difficulties, brought about by the trading or economic circumstances that were imposed on it because of government restrictions in its response to the COVID-19 pandemic. It was not the only business affected by it. Its trading position was plainly affected by it, given that, according to Mr Moss, the employer qualified for JobKeeper, and indeed its workforce was the subject of a reduction of hours direction made under the special provisions inserted into the Act to deal with the coronavirus response. It seems to me that the employer has a strong basis to defend the decision to make the Applicant's position redundant and to dismiss as a consequence. It says - and nothing the Applicant can produce thus far would contradict this - that it has not replaced the position of Warehouse Supervisor. It appears that such duties as remain are now undertaken by the Warehouse Manager.

[18] Those circumstances are all consistent with there being a redundancy in a general sense, even if the employer did not comply with its obligations to consult and that matter is very much in dispute. On the material before me I consider the Applicant's merits case to be weak. That is an assessment based on the characteristics of an unfair dismissal or the factors that one needs to take into account under the Act. That is not saying as a general assessment absent the Act that there is not obviously an element of unfairness when somebody loses their job after 32 years of employment. No one could say otherwise. But that fact alone does not mean a dismissal is unfair for the purposes of the Act. I have not had an opportunity to hear the whole case. I am not suggesting that this would be the outcome but my assessment is that the merits are not strong. They are weak. In those circumstances, the merits of the application is not a matter that weighs in favour of the Applicant. In this case I regard the merits of the application as neutral.

[19] As to the final matter - fairness as between the Applicant and others in a similar position - no party was able to advance any submission that that factor should weigh either in favour of the Respondent or the Applicant. In those circumstances, I consider that consideration to be neutral.

[20] Statutory timeframes of the kind found in s.394(2) are intended by parliament to ensure that people exercise what rights they have promptly. They seek to balance on the one hand an Applicant having the right to be aggrieved and to pursue that in a forum and an employer's right to understand that after the period has passed, there is some certainty that that is the end of any potential litigation under the Act about that matter.

[21] With most statutory timeframes, there are of course exceptions. The Commission is given a discretionary power to extend time by assessing whether there are exceptional circumstances taking into account a range of matters set out in the Act. When I look at those matters in the context of this case, the absence of an acceptable explanation for the delay, the minimal steps taken to dispute the dismissal in circumstances where there was quite a lengthy period before the dismissal took effect, and the weak case on the merits weighing neutrally, taken together those factors outweigh the factors that might point in favour, such as the absence of any prejudice, which is unsurprising in circumstances of a two-day delay.

[22] I do not consider that there are any exceptional circumstances and so there is no warrant for considering whether to exercise my discretion to extend time.

[23] In these circumstances, the application for an extension of time is refused and the substantive application is dismissed. An order giving effect to this decision is separately issued in PR726747.

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