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Judgment (111 paragraphs)
[1]
Nicole Boneham v Rinkglen Pty Ltd ATF GMG Admin Trust [2022] FWC 1866 (18 July 2022)
[4]
s.394 - Unfair dismissal
[5]
Application for an unfair dismissal remedy - extension of time - health and job search following dismissal - discretionary considerations - no exceptional circumstances - application dismissed
[6]
- [1] On 15 June 2022 Nicole Boneham (Ms Boneham or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment by Rinkglen Pty Ltd (Rinkglen or the employer) on 19 May 2022.
[7]
- [2] Ms Boneham's application was made twenty-seven days after the alleged dismissal took effect, being six days beyond the 21-day statutory time-limit. For the application to proceed, it requires an extension of time. Ms Boneham seeks that extension.
[8]
- [3] This decision deals with whether an extension should be granted.
[9]
- [5] On 8 July 2022 Ms Boneham filed additional materials.
[10]
- [6] Rinkglen filed a response on 24 June 2022 and submissions on 8 July 2022. Rinkglen contend that the application should be dismissed because it is out of time and because the dismissal was a case of genuine redundancy and not unfair.
[11]
- [7] I heard the extension of time matter by video on 12 July 2022.
[12]
- [8] Ms Boneham was self-represented. Rinkglen was represented with permission, and without objection.
[13]
- [9] Ms Boneham gave evidence[1] and both parties made oral submissions.
[14]
- [10] Following the hearing I reserved my decision.
[15]
- [12] Rinkglen operates the Grant Motors Group which includes a Mercedes Benz motor vehicle dealership (amongst others) in Southport, Queensland.
[16]
- [13] On or about 9 May 2022 Rinkglen decided to close its Customer Care Centre at the dealership consequent on a decision by certain dealerships in the Group to bring customer care services in-house.
[17]
- [14] Ms Boneham was employed by Rinkglen at the dealership in June 2020. At the date of dismissal she was a Management Support Officer having previously been a Customer Contact Centre Consultant.
[18]
- [15] On 16 May 2022, Rinkglen advised employees including Ms Boneham that the Customer Care Centre was closing. Employees were informed of alternate positions they could apply for[2], or take a redundancy package offered by the employer.
[19]
- [16] Ms Boneham had developed a heart condition some seven months earlier. Upon being advised of imminent redundancy, her stress levels rose causing her to be concerned at heart discomfort. On or about 16 May 2022 she booked an appointment to see a consulting cardiologist. The appointment was for 23 May 2022.
[20]
- [17] On or about 18 May 2022 Ms Boneham was notified that her termination would take effect on 19 May 2022. She formed the view that her impending redundancy may be unfair. On or about 18 May 2022 she searched the Commission website concerning unfair dismissal claims. She telephoned the Commission to confirm what she had read. She was advised of the right to dispute a redundancy if it was considered non-genuine, of the fact that a 21-day time frame post-dismissal applied, and of a filing fee. She was also advised of a service whereby a dismissed employee could be referred by the Commission to a solicitor to discuss the issue (Workplace Advisory Service).
[21]
- [18] Ms Boneham was offered and accepted a redundancy package of seven weeks in lieu of notice and six weeks redundancy pay.[3] She made this decision in preference to applying for alternate roles.
[22]
- [19] Ms Boneham ceased work on 19 May 2022 on the ground of redundancy. She received a letter in the post confirming the terms of her dismissal.[4]
[23]
- [20] Following dismissal, Ms Boneham returned to the Commission web site and formed the view that she wanted to challenge her dismissal.
[24]
- [21] However, she did not make an application at that time. She gave priority to her health (wanting to wait until she saw her cardiologist) and gave priority to seeking a new job.
[25]
- [22] Ms Boneham saw a cardiologist (Dr Jadeer) on 23 May 2022. Dr Jadeer provided a certificate in the following terms:[5]
[26]
This letter is to confirm that the above mentioned person has attended a medical appointment at 23/05/2022 at 8am
[27]
- [23] Dr Jadeer prescribed medication to settle Ms Boneham's heart stress. Over the following week Ms Boneham's heart condition settled allowing her to complete her job search and other activities.
[28]
- [24] In the days and fortnight following dismissal, Ms Boneham searched for employment online and applied for approximately twenty positions. She drafted a resume and covering letter. She secured and attended, both by phone and in person, job interviews. Ms Boneham secured new full time employment as an executive assistant. She commenced on 6 June 2022.
[29]
- [25] When earlier informed of the 21-day rule for filing unfair dismissal claims, Ms Boneham did not make a mental or other note of the date by which her claim would need to be filed. That date, 9 June 2022, came and went.
[30]
- [26] On 15 June 2022 Ms Boneham completed and filed by email an unfair dismissal application. It was received in a format able to be accepted by the Commission at 12.25pm that day. A version sent earlier that day was in a non-complaint format.
[31]
- [27] When making her application Ms Boneham acknowledged it was filed out of time. Her application stated as follows:[6]
[32]
"Unfortunately this is the 27th day since my dismissal took effect.
[33]
During the week of the 16th of May, I did make multiple calls, including to Fair Work to inquire about this (unfair dismissal) process.
[34]
Unfortunately I have been under an enormous amount of stress due to the dismissal and seeking another job.
[35]
This has caused anxiety and stress when it comes to me (sic) personal life. As we are all aware inflation is hitting everyone hard as well as the daunting thought of losing my apartment/home loan.
[36]
I have successfully secured a role with a new business, which I have been devoting my time and effort to"
[37]
- [28] In her application, Ms Boneham disputes that the redundancy was genuine. She says that her former role has not ceased and needs to be done by someone.
[38]
- [29] The employer filed a response on 24 June 2022 to the effect that the redundancy was genuine, that an above minimum entitlement redundancy package was paid and that an opportunity to apply for alternate roles was provided.
[39]
- [30] Section 394(3) of the FW Act provides:
[40]
(a) within 21 days after the dismissal took effect; or
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(b) within such further period as the FWC allows under subsection (3).
[42]
(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:
[43]
(b) whether the person first became aware of the dismissal after it had taken effect; and
[44]
(c) any action taken by the person to dispute the dismissal; and
[45]
(d) prejudice to the employer (including prejudice caused by the delay); and
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(f) fairness as between the person and other persons in a similar position."
[47]
- [31] Being six days out of time, Ms Boneham's application can only proceed if she can establish that "exceptional circumstances" exist within the meaning of s 394(3).
[49]
- [33] I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
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"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[9]
[51]
- [34] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
[52]
- [35] I now consider each of the factors in s 394(3).
[53]
- [36] The reason for the delay is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[12]
[54]
- [37] However, a reasonable explanation is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[13]
[55]
- [38] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[14]
[56]
- [39] Ms Boneham's explanation for the delay was expanded on in her witness statement.[15] She says that:
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"While submitting this unfair Dismissal claim was important to me, my health and managing my stress was my number one priority. I knew this claim would cause stress, this is why I wanted to concentrate on my health prior to submitting this claim."
[58]
- [40] In summary, her reason is that she gave priority to her health.
[59]
- [41] I accept Ms Boneham's evidence that she experienced stress and anxiety at the time of dismissal and that this prompted her to be concerned at her heart condition such that she made an appointment to see her cardiologist even prior to her dismissal taking effect.
[60]
- [42] I also take into account that Ms Boneham was giving priority post-dismissal to actively searching and securing new employment.
[61]
- [43] However, a dismissed employee experiencing stress and anxiety after dismissal and having to seek alternate employment is common, not unusual. Without more, it is not an exceptional circumstance.[16]
[62]
- [45] In support, Ms Boneham submitted the medical certificate from Dr Jadeer. The medical certificate falls well short of providing any insight into the medical condition let alone whether the medical condition was a relevant obstacle to filing an application. The medical certificate simply advises that a medical consultation was held on 23 May 2022.
[63]
- [46] Without evidence of that type, I am left with Ms Boneham's evidence. Ms Boneham's evidence was that over the course of the week following 23 May 2022 her heart condition settled with the medication thus allowing her to complete her job search, secure new employment and commence new full time employment on 6 June 2022.
[64]
- [47] There is no evidence that Ms Boneham was unwell or impaired on health or other grounds in the period that followed. This included the three days that followed to 9 June 2022, and the delay period (10 June 2022 to 15 June 2022 inclusive).
[65]
- [48] It was reasonable for Ms Boneham to give priority to her health post-dismissal. In that context and given her heart condition it was understandable to wait until she saw her cardiologist on 23 May 2022 before litigating. However, there is no apparent reason why her application could not have been filed in the seventeen days that followed until the statutory deadline (9 June 2022), especially once her medication (to use her words) "kicked-in".
[66]
- [49] I take into account that in this period Ms Boneham secured and commenced new employment. However, that a dismissed employee does so is not unusual and not of itself a sufficient basis to explain a delay in filing.
[67]
- [50] Further, there is no evidence that Ms Boneham was unable to lodge her claim earlier in the six day delay period or needed to wait until 15 June 2022. By then, she had commenced new employment and was no longer searching for work. Her health condition had apparently settled. According to Ms Boneham's evidence it was simply the case that, on 15 June 2022, "a job [finding new employment] was out of the way and it came to the forefront of my mind".
[68]
- [51] Considered overall, the explanations for the delay individually or in combination do not weigh in favour of a finding of exceptional circumstances.
[69]
Awareness of the dismissal taking effect (s 394(3)(b))
[70]
- [52] Ms Boneham was aware from 16 May 2022 that she was to be dismissed and from 19 May 2022 that her dismissal took effect when she accepted and signed for a redundancy package.
[71]
- [53] That Ms Boneham was well aware of the dismissal taking effect and its reason makes this a neutral consideration and does not weigh in favour of an extension of time.
[72]
- [54] Ms Boneham did not correspond with the employer post-dismissal raising a concern at the genuineness of the redundancy. Having accepted and taken the redundancy package, the employer was entitled to be somewhat surprised at these proceedings and views expressed by Ms Boneham in her application that her redundancy is now alleged to have not been genuine.
[73]
- [55] This was not a redundancy where post-dismissal information that was not known or not reasonably capable of being known at the time of dismissal emerged and generated a belief of a non-genuine redundancy, thus explaining the delay. Ms Boneham was of the view at the time of dismissal (19 May 2022) that her redundancy was questionable and open to challenge. Indeed, she had privately commenced investigating her rights in the days prior.
[74]
- [56] Despite holding a view from the time of dismissal that the redundancy should be challenged, no action was taken to dispute the dismissal at that time or in the period following dismissal.
[75]
- [57] The absence of earlier action being taken to dispute the dismissal weighs somewhat against an extension of time.
[76]
- [58] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[17]
[77]
- [59] Rinkglen submit that it would incur prejudice including by having to defend a late claim in circumstances where the business that employed Ms Boneham has closed down.
[78]
- [60] A claim would have to be responded to, involving time and cost. That prejudice, whilst real, is not unique.
[79]
- [61] That the business has closed down may be relevant to remedy (insofar as reinstatement is concerned). If the dismissal was a genuine redundancy as claimed by the employer, matters of remedy would not arise.
[80]
- [62] This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[18]
[81]
- [64] A hearing on merit would necessarily concern whether the dismissal was a genuine redundancy within the meaning of the FW Act, and only if not, would broader issues of fairness arise.
[82]
- [65] Whilst it may not be in dispute that the business of the employer or a relevant part of it has closed down, redundancy considerations in the unfair dismissal jurisdiction involve not just business closure but also re-deployment issues.
[83]
- [66] Whilst Ms Boneham's case may not be strong on a preliminary view of the materials, as I have not fully heard evidence or submissions on these questions it is unsafe to draw any conclusion for current purposes.
[84]
Fairness between persons in similar position (s 394(f))
[85]
- [68] No evidence or submissions from Ms Boneham or Rinkglen raise issues of fairness with and between other persons.
[86]
- [69] Rinkglen's submission[19] that a case where an extension of time was refused despite only a one day delay is not relevant given that the case referenced by Rinkglen bears no relationship to the facts in this matter.
[87]
- [70] In these circumstances, this is not a relevant factor.
[88]
- [71] The period of delay being six days, in the context of a statutory twenty-one day time frame, is not insignificant.
[89]
- [72] The reasons for delay do not weigh in favour of a finding of exceptional circumstances in combination or individually.
[90]
- [73] The absence of earlier action being taken to dispute the dismissal weighs somewhat against an extension.
[91]
- [74] All other considerations are neutral or not relevant.
[92]
- [75] An extension can only be granted if the circumstances are, considered overall, exceptional. Ms Boneham knew of the statutory deadline but missed the deadline due to other matters being given priority. She was capable of meeting the deadline but it passed her by. She filed when those other matters had been dealt with, at a time that was convenient to her and when litigating returned to front of mind.
[93]
- [76] The circumstances are not exceptional.
[94]
- [77] There being no exceptional circumstances, the time for lodging the application cannot be extended.
[95]
- [78] As Ms Boneham's application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[20] to that effect is issued in conjunction with the publication of this decision.
[96]
[97]
A Smeaton, with permission, with A Fitzsimmons on behalf of Rinkglen Pty Ltd ATF GMG Admin Trust
[98]
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
[99]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[100]
[9] [2011] FWAFB 975 "Nulty" at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]
[101]
[10] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167 at [6]
[102]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36]
[103]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]- [45]
[104]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288
[105]
[14] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[106]
[16] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [62]
[107]
[17] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[108]
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[109]
[19] Written submissions paragraphs 26 - 27
[111]
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