Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - application filed out of time - circumstances exceptional - extension of time granted.

• [1] Ms Rachela Schatzschneider (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant's allegations that she has been dismissed from her employment with Coho Property Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the ground that the Application was made out of time.

• [2] Directions were issued for the Applicant and the Respondent to file materials relating to the issue of whether the Application should be accepted notwithstanding that it was made out of time. The Applicant relied upon the contents of the Application, various emails and text messages from the period after the cessation of her employment, a Form F3 previously filed by the Respondent in unfair dismissal proceedings that were discontinued, and a Notice of Listing from the Commission dated 6 October 2021 that cancelled the conciliation of the unfair dismissal proceedings that were discontinued. The Respondent relied upon the contents of their Form F8A response filed in this matter and a submission contained in an email dated 24 January 2022.

When must an application for the Commission to deal with a dismissal dispute be made?

• [3] Section 366(1) of the Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

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

• [4] As the Full Bench has stated, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [5] The dates of notification of dismissal and dismissal taking effect are recorded by the Applicant and the Respondent in the Form F8 Application and the Form 3 Employer Response to Unfair Dismissal Application respectively. The parties agree that the dismissal was notified on 16 August 2021, however while the Respondent stated that the dismissal took effect on that day, the Applicant stated the dismissal took effect on 23 August 2021.

• [6] I consider that the dismissal of the Applicant did not take effect until at least 23 August 2021. The Applicant relied on various emails and text messages from the period after being notified of her dismissal on 16 August 2021. Those emails and text messages disclose a confused state of affairs regarding the Applicant's employment, and a personal relationship between the Applicant and the CEO of the Respondent, Mr Salmon. Those emails and text messages support a conclusion that the dismissal took effect on 23 August 2021. Of particular relevance I note:

(a) At 9.15pm on 16 August 2021, Mr Salmon sent the Applicant an email stating

"I said you should take two weeks holiday away from work."

(b) At 11.37 pm on 16 August 2021, Mr Salmon sent a termination email stating

Please take this letter as your termination effective immediately.

Your Grose disregard for the director has left me with no choice. Your inability to accept compromise over a number of issues has made the working environment untenable.

Please return all the company assets including the Mercedes CLS, the laptop, phone and other items.

Please also return the keys to both the City Skyhouse and the Rydalmere offices.

I will arrange with Kylie Salmon to receive the car and other items tomorrow"

(c) At 7.03 pm on 20 August 2021, Mr Salmon sent an email stating:

"Everything is repairable. You are right for coho if you want. It's just you and me that know what happened.

I have told people you had to have an operation and you felt it better to recover without any work pressures.

Things are trucking along without you but up to you if you want to try and solve this."

(d) At 5.13pm on 23 August 2021, Mr Salmon sent an email stating:

It feels like things are slowly fading into the unset after the storm.

I am still interested in talking to see if anything g is salvageable or at least having a plan how to minimize the hurt for you.

Let me know if that is if interest. If not, I will close the R and R book and just remember all the great times.

• [7] As I have found that the dismissal took effect on 23 August 2021, final day of the 21-day period was therefore 13 September 2021, and ended at midnight on that day. The Application was made on 7 October 2021. The Application was therefore made 24 days late.

• [8] As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.

Was the Application made within such further period as the Commission allows?

• [9] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the Applicant to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the Applicant and other persons in a similar position.

• [10] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [11] I set out my consideration of each matter below.

• [12] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 September 2021. The delay is the period commencing immediately after that time until 7 October 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [13] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

• [14] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[5]

• [15] In the Application the Applicant acknowledged that the Application was late, and outlined the following reasons for that late filing:

1. "Lodged in wrong jurisdiction * - Previously submitted Unfair Dismissal F2 form, was accepted for conciliation under the case number U2021/8250. * - I withdrew this yesterday to lodge this much more appropriate General Protections application. 2. Communication from Employer putting in question whether my termination has been effective * - Several emails and texts from Rod Salmon offering my job back, plus a promotion (last job offer 19 September). Included phrases such as 'fix it', 'your job back', 'CEO in one year', 'meet face to face' etc

1. No final payout * - Nonpayment of annual leave and minimum notice period up to this date

1. Coworkers including accounts were informed that I am on sick leave/ holiday [instead of that I have been terminated] * - 'Everything is repairable. You are right for coho if you want. It's just you and me that knows what happened. I have told people you had an operation and you felt it better to recover without any work pressures."

• [16] In response, in the parts of the Respondent's submission email that dealt with the out of time issue, the Respondent noted:

3. Schatzschneider was paid all of her entitlements as calculated by Esther Chong

6. Schatzschneider had no impediment to filing the UD application on time.

7. The application was filed after the 21 day requirement.

11. The applicant has failed to provide information or fact as to reasons why this claim can proceed even though it is outside of many of the regulations.

Schatzschneider filed the claim outside the relation 21 days and had no reasonable reason for doing so. The application is vexatious and without proper facts will be highly unlikely to succeed.

• [17] The Applicant submitted her Form F2 Unfair Dismissal Application (the Unfair Dismissal Application) on 10 September 2021, which was 18 days after the dismissal took effect on 23 August 2021. The Respondent filed its Form F3 Response to Unfair Dismissal Application on Friday 1 October 2021, and identified as the only jurisdictional objection that the Respondent was a small business employer and had complied with the Small Business Code. Thereafter, on Wednesday 6 October 2021, the Applicant discontinued her Unfair Dismissal Application and commenced these proceedings by filing the Application.

• [18] In Poulton v Rail Infrastructure Corporation,[6] a Full Bench of the Australian Industrial Relations Commission found:

"Whilst all matters are determined on their own facts, and our finding as to an acceptable explanation is made on the basis of the particular circumstances recorded above, we note that there are other decisions of the Commission which have accepted as an acceptable explanation for delay, late lodgement caused by a reasonably based application in another jurisdiction, where prompt action had been taken to initiate a s.170CE application, once the absence of jurisdiction in the State tribunal has been established."

• [19] It is clear that the Applicant acted promptly and within time to commence the Unfair Dismissal Application. Upon being made aware of jurisdictional difficulties with the Unfair Dismissal Application, the Applicant again promptly commenced these proceedings. I consider that in the particular circumstances of the Applicant's case, she has established an acceptable explanation for all of the period of the delay, and that is a matter that weighs in favour of the Applicant in this matter.

What action was taken by the Applicant to dispute the dismissal?

• [20] The Applicant attempted to address matters by way of direct communication with the Respondent after her employment had been terminated, and commenced the Unfair Dismissal Application. Those are matters which display an intention to contest the dismissal and to demonstrate to the Respondent that despite the decision to terminate her employment, the issues in contest had not reached finality, and the Respondent was therefore on notice that the matters would be contested in the future.[7] That is a matter that weighs in favour of the Applicant in this matter.

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

• [21] The Respondent did not in its submissions state that prejudice would be caused to it in the event the Commission extended the time for the Application to be made. This is a neutral consideration.

• [22] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.

• [23] Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)."[8]

• [24] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. This is a neutral consideration.

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

• [25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

• [26] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

• [27] 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.[9] 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.[10]

• [28] It is clear that the factors that have been accorded weight in this matter are the presence of an acceptable reason for the delay and action taken by the Applicant to dispute the dismissal. Both those factors weigh in the Applicant's favour.

• [29] Having regard to all of the matters listed at s.366(2) of the Act, I am satisfied that there are exceptional circumstances.

• [30] Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.

• [31] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[11] I am satisfied that it is appropriate to extend the period for the Application to be made to 7 October 2021.

[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].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] PR966972, AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005, at [42].

[7] Wilson v Woolworths [2010] FWA 2480.

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Fair Work Act 2009 (Cth) s 577.

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