s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - whether an extension of time should be allowed

• [1] Ms Valerie Harris was employed by Musarubra Australia Pty Ltd from 24 May 2021 until 15 August 2022. Between 12 and 13 September 2022, Ms Harris applied for an unfair dismissal remedy. At the earliest, the application was filed 7 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Ms Harris to make the application to the Commission.

• [2] I have decided not to allow an additional period for Ms Harris to make the application. The application will be dismissed. These are my reasons.

• [3] Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

• [4] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group[1]:

"[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."

• [5] The matters to be taken into account when deciding whether to grant additional time are set out in s.394(3) of the Act. These are:

• the reason for the delay,
• 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),
• the merits of the application, and
• fairness as between the person and other persons in a similar position.

• [6] Reason for delay: Ms Harris submits that while she had suspicions about whether her redundancy was genuine, she had no evidence. She also had separate queries that she tried to resolve directly with Musarubra in the weeks after her dismissal, but Musarubra did not reply to her queries in a timely way, and its actions seemed to coincide with the passing of the 21‑day filing period. When Ms Harris did receive a reply on 2 September 2022, she submits that there were only three calendar days before the 21‑day filing period expired.

• [7] On 7 September 2022, Ms Harris saw an advertisement on LinkedIn for a "Solutions Architect" based in Melbourne, which was similar to a role that had been discussed with her before she was dismissed. She brought the advertisement to the attention of Musarubra on 8 September 2022 and it was removed from LinkedIn two days later. This action confirmed Ms Harris's suspicions. She spent the weekend preparing her application and sent it to the Commission on 12 September 2022. The file was not in an accessible format and the Commission's file records the date of lodgement as 13 September 2022. Nothing turns on the precise filing date. At best, the application was filed 7 days late. At worst, it was 8 days late.

• [8] Whether the person first became aware of the dismissal after it had taken effect: Ms Harris first became aware of the dismissal when she was told of her redundancy on 15 August 2022. The dismissal took effect that day.

• [9] Any action taken by the person to dispute the dismissal: Ms Harris had been thinking about the possibility of unfair dismissal since a conversation with her former manager, Mr Sahba Idelkhani, on 10 July 2022. She was concerned that her position may be at risk and tried to protect her position by undertaking technical work in line with the new direction of her team.

• [10] However, on 15 August 2022, Ms Harris was advised of her redundancy and separation payment. The offer of a separation payment including a conditional 'ex gratia' payment in return for signing a release in Musarubra's favour by 22 August 2022.

• [11] On 19 August 2022, Ms Harris advised Musarubra that she had the "intention of signing the separation letter" but first had some questions that she wanted to ask. Musarubra replied on 19 and 22 August 2022, acknowledging her email and answering a question about the effect of Ms Harris' queries on the separation payment.

• [12] On 22 August 2022, Ms Harris emailed Musarubra the questions she had foreshadowed on 19 August 2022, again indicating her intention of "signing the separation letter". The questions were about payment of superannuation in connection with the separation payment and an alleged privacy breach during her employment. Musarubra replied the same day, answering the superannuation question and asking for more information about the alleged privacy breach. Ms Harris provided additional details about the alleged breach on 22 and 23 August 2022.

• [13] On 24 August 2022, Ms Harris wrote to Musarubra to "share another situation" and seek a perspective from human resources on "whether this is acceptable". She described her conversation on 10 July 2022 with Mr Idelkhani about an organisational restructure, in which she was told she needed to demonstrate more 'technical' skills to continue in her role. If she did not want her role to become more technical, she would be given 6 months to find another job. In her email of 24 August 2022, Ms Harris also queried whether her redundancy was about business needs or her performance. If it was about performance, Ms Harris expressed concern that the conduct of Mr Idelkhani involved the "slander of [her] professional ability/reputation".

• [14] On 24 August 2022, Musarubra advised that it would investigate the matter and get back to Ms Harris, but that an update may not be provided until "next week". This was because Mr Idelkhani, who needed to be interviewed, was absent on parental leave. On Friday 2 September 2022, Musarubra contacted Ms Harris again to advise that it was still looking into the matter and would get back to her as soon as it could. The following Monday, 5 September 2022, Ms Harris started looking seriously into the filing of an unfair dismissal application. Had she done so on the day, the application would have been made in time.

• [15] Instead, on 7 September 2022, Ms Harris spoke with Musarubra. She asked why the investigation had taken so long and asked about the LinkedIn advertisement, which she felt overlapped with the more technical role Mr Idelkhani had challenged her to consider on 10 July 2022. She sent a follow up email about her concerns and asked for a response by 10 September 2022.

• [16] No response was forthcoming, as the person responsible for the investigation, Ms Maryanne Ranger, was busy finalising work ahead of a period of leave and work travel. Ms Harris decided to make an unfair dismissal application. She spent the weekend preparing the application and speaking to 'legal people'.

• [17] On 12 September 2022, Ms Harris completed her unfair dismissal application and sent it to the Commission. The format of the email was unable to be opened by the Commission. A second attempt to file the application on 13 September 2022 was successful. On 14 September 2022, Musarubra wrote to Ms Harris to advise that due to the unfair dismissal application, its timeframe for response to the matters she had earlier raised would now be adjusted pending further correspondence from the Commission.

• [18] Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to Musarubra if the application proceeds approximately one week late.

• [19] Merits of the application: Ms Harris has an arguable case that her dismissal was unfair. While the dismissal was for reasons of redundancy, there is some evidence of a similar vacant role at or around the same time as the dismissal. It may have been reasonable to redeploy her into the role, in which case the dismissal would not have been a genuine redundancy.

• [20] There are two other jurisdictional issues that rely on the question of award coverage: firstly, whether a lack of consultation meant the dismissal was not a genuine redundancy and secondly, whether Ms Harris can apply for an unfair dismissal remedy given that her earnings were above the high income threshold. Ms Harris submits that as an informational technology professional, she was covered by the Professional Employees Award 2020. It is not necessary to determine the question of award coverage at this stage of the proceeding, but the submission is not without merit_._

• [21] If the jurisdictional issues are overcome, the question will be simply whether the dismissal was unfair. In this regard, there is a dispute about the reason for dismissal as well as evidence of discussions about an organisational restructure in the months prior, together with submissions to the effect that a broader organisational restructure is underway. One result of the dismissal was that Ms Harris was unemployed for approximately two months. As Ms Harris was paid 2 month's wages in lieu of notice of termination, the likely absence of lost wages will affect the question of remedy in the event of a successful application.

• [22] Given the various issues in play, a proper assessment of the merits of the case cannot be made without a hearing where all relevant facts and evidence are presented.

• [23] Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

• [24] On balance, I am not persuaded that there are exceptional circumstances in this case such that additional time could be allowed to Ms Harris to make her application. There is nothing unusual about the circumstances relied upon, even with the advertisement of a job that Ms Harris was capable of performing some weeks after the dismissal.

• [25] Simply put, Ms Harris could have, but did not, make her application to the Commission on time. I accept that this is because Ms Harris was being cautious and was trying to reach an amicable resolution with Musarubra. She was also undecided about what to do. However, her questions to Musarubra after the dismissal were about matters other than unfair dismissal, although there was a hint of alleged unfairness in correspondence on 24 August 2022. Until 7 September 2022, the subject matter of these questions was the separation payment, alleged privacy breaches, whether Mr Idelkhani had tarnished her reputation and action Musarubra was intending to take in that regard.

• [26] By 5 September 2022, Ms Harris knew about the 21‑day filing period for unfair dismissal applications. It took a further five days, until 10 September 2022, for Ms Harris to decide to make an unfair dismissal claim, and a further two days until 12 September 2022 to send her application to the Commission. This is because Ms Harris was being diligent in her preparation of the application, but a more prudent approach would have been to file the application on time and if necessary, seek to amend the application or provide additional information at a later time.

• [27] Ms Harris is an information technology professional with the nous and means to undertake research and engage with web-based information and forms. She was in a position to apply for an unfair dismissal remedy at any time within the 21‑day filing period. Despite her suspicions about why her employment had come to an end, she did not take positive steps to protect her position in relation to unfair dismissal until the filing period had passed. This weighs against a conclusion that there are exceptional circumstances in the case and also against the grant of additional time.

• [28] The merits of Ms Harris's application are a neutral consideration in the circumstances. While she has an arguable case, that is not enough on its own to overcome the hurdle of a late application. None of the other relevant considerations tip the balance either in favour of a finding of exceptional circumstances, or the grant of additional time.

• [29] The case in Perret v Ayers Real Estate [2020] FWC 2981 does not assist Ms Harris. The facts in that case bear similarities to this but are also different. Ms Perret discovered a job advertisement for the same role that she had occupied after being made redundant, and this was the first time she became aware that her dismissal may have been unfair. Ms Harris had reason to suspect that her dismissal may not be a genuine redundancy from the time it took effect. The advertisement she found on 7 September 2022, and its subsequent deletion, only reinforced her suspicions. The role Ms Harris discovered was also different in title, scope and base location from the role that she had performed (even if it was within her skillset and could be performed remotely).

• [30] Ms Perret acted immediately upon discovering the advertisement by applying for an unfair dismissal remedy. Ms Harris waited a further 5 days to apply to the Commission. Ms Perret was found to have provided an adequate explanation for the entire period of delay because she had no reason to suspect unfairness until discovery of the advertisement. In contrast, the explanation given by Ms Harris does not explain (other than by reason of caution and indecision) why more prompt action to protect her position was not taken either within the 21‑day filing period, or immediately upon discovery of the LinkedIn advertisement, or even immediately upon deciding to make an unfair dismissal claim.

• [31] As the circumstances in this case are not exceptional, additional time cannot be allowed to Ms Harris to make her application. Even if they were, on balance I would not exercise my discretion to allow additional time to Ms Harris to make her application to the Commission for the reasons set out above.

[1] [2011] FWAFB 975; [2011] 203 IR 1 at [13].

Printed by authority of the Commonwealth Government Printer