Alisha Sortino v Wintringham [2023] FWC 2972

1 Fair Work Act 2009 s.394—Unfair dismissal Alisha Sortino v Wintringham (U2023/9921) DEPUTY PRESIDENT CLANCY MELBOURNE, 22 NOVEMBER 2023 Application for an unfair dismissal remedy – application filed 75 days out of time – circumstances not exceptional – extension not granted – application dismissed. [1] On 11 October 2023, Alisha Sortino made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), by lodging a Form F2 - Unfair Dismissal Application (Form F2). The Form F2 indicates the application was not made within 21 days after the dismissal took effect. The Respondent to this application is Wintringham (the Respondent). The Respondent claims that Ms Sortino was not dismissed within the meaning of s.386(1) of the Act because Ms Sortino was employed pursuant to a fixed term contract which came to an end through the effluxion of time on 7 July 2023. The Respondent otherwise contends that Ms Sortino’s application was made beyond the statutory time limit that requires unfair dismissal applications to be made within 21 days after a dismissal takes effect (s.394(2)(a) of the Act). [2] A determinative conference was conducted on 20 November 2023 with reference to the material filed and served by the parties in response to my directions dated 27 October 2023. Ms Sortino appeared and gave evidence. The Respondent was granted permission to be represented by Mr Andrew Crocker of Counsel. [3] On the basis that the alleged dismissal took effect on 7 July 2023, the period of 21 days ended at midnight on 28 July 2023. The application was therefore filed 75 days outside the 21- day period. With her application not having been lodged within the 21-day limit provided for in s.394(2)(a) of the Act, Ms Sortino requires the Commission to allow her an extension of time (s.394(2)(b)). Factual Background [4] By contract dated 3 March 2022, Ms Sortino was employed as a Digital Transformation Project Manager on a full-time, fixed term written contract, which provided that Ms Sortino’s contract and employment would commence on 8 March 2022 and end on 8 March 2023. Specifically, the contract stated: [2023] FWC 2972 DECISION -- 1 of 8 -- [2023] FWC 2972 2 “You are employed on Fixed Term contract on a Full time basis in this position commencing on 08 Mar 2022 and ending on 08 Mar 2023. Unless one of the following events occurs first: 1. Upon the giving of four weeks’ notice to terminate by either party (such notice to terminate shall be in writing and signed and delivered personally) as provided by the Wintringham Collective Agreement 2020 as amended; or 2. At any time by the Employer dismissing you for serious misconduct or breach of contract.”1 [5] On or about 13 February 2023, the Respondent wrote to Ms Sortino to extend her contract to 30 June 2023. Ms Sortino said this letter confirmed agreement reached in an earlier conversation. [6] On approximately 16 May 2023, Ms Sortino alleges she was informed by her direct manager (identified by Ms Sortino as “Ahmet”) that her contract was not going to be extended beyond 30 June 2023. Later, in the period leading up to 30 June 2023, the parties verbally agreed to extend Ms Sortino’s for a further period of one week, until 7 July 2023. [7] Ms Sortino said that because Ahmet was supportive of her continuing in employment beyond 7 July 2023, she suggested that she confirm in writing her willingness to continue on. However, when Ms Sortino subsequently advised Ahmet, on 7 June 2023, that her proposed letter was on its way, he told her that it would be unlikely that he would be able to have her continue seamlessly and she would instead need to finish up her employment on 7 July 2023 and he would bring her back later. [8] Ms Sortino said this prompted her to consult the Commission’s website, and when doing so she completed an unfair dismissal eligibility test and read about being employed under a contract of employment for a specified period of time and the 21-day time limit to make an unfair dismissal application. Ms Sortino said her conclusion at that time was that she was not eligible to make an unfair dismissal application. She said that on and from 7 July 2023, she considered herself no longer employed by the Respondent and required to return company equipment. [9] Ms Sortino gave evidence that she has a Worksafe claim and said that when in dialogue with Worksafe on 28 September 2023 regarding her employment circumstances, she was prompted to make further enquiries of the Fair Work Commission. [10] Ms Sortino said she therefore contacted the Commission on 28 September 2023 and was provided with information that led her to form the view that the cessation of her employment had the character of a dismissal. Ms Sortino said that having considered the information provided, which included reference to Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (Navitas),2 she formed the view on 29 September 2023 that she had been dismissed. Ms Sortino asserted her view was based on her employment contract providing an ‘unqualified right’ of termination in addition to its specified fixed term which meant her circumstances fell outside of the scope of s.386(2)(a) of the Act. -- 2 of 8 -- [2023] FWC 2972 3 [11] Having discovered this, Ms Sortino said she set about preparing the Form F2 which was filed on 11 October 2023. Legislation [12] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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.3 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.4 [13] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [14] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. Reason for the delay – s.394(3)(a) [15] 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 the circumstances must be considered.5 [16] 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.6 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 that delay, beyond the 21-day period.7 -- 3 of 8 -- [2023] FWC 2972 4 [17] Ms Sortino’s reason for the delay is that while she was aware her employment relationship ceased on 7 July 2023, she was not aware she had been dismissed on that day until 29 September 2023, when she read material regarding contracts for a specified period of time that had been brought to her attention as a result of her contact with the Commission on 28 September 2023. Ms Sortino asserts that until that 29 September 2023 she had proceeded on the basis that the contract provided to her by the Respondent was compliant with the requirements for a contract of employment for a specified period of time. She claims to have been misinformed by the Respondent in relation to her contract, because it was not a contract for a specified time, and she had in fact been dismissed. [18] I am not persuaded by the suggestion that the Respondent misrepresented the position in relation to the cessation of Ms Sortino’s employment. The Respondent’s position is that the employment ceased by the effluxion of time and it rejects the assertion that Ms Sortino’s employment was terminated on its initiative. Further, while Ms Sortino asserts that a reasonable person would have relied on the representations made by the Respondent, she makes this assertion while also claiming to have been disappointed and aggrieved by the cessation of her employment because she had wanted it to continue. In such circumstances, it might have been expected that Ms Sortino would take the inquiries she had commenced prior to 7 July 2023 further, in the period immediately following the cessation of her employment. [19] Ultimately, while I accept that Ms Sortino may not have had prior experience with unfair dismissal laws or dealing with the Commission, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed.8 Unfamiliarity is not exceptional. [20] Ms Sortino argues that as soon as she became aware she had been dismissed, she acted immediately to prepare the Form F2 for lodgement. Ms Sortino detailed issues with her health but does not rely on these as a reason for any part of the delay until 29 September 2023. Rather, she says the health issues contributed to preparation and lodgement process taking from 29 September until 11 October 2023 to complete. In particular, Ms Sortino cited certificates of incapacity covering the period from 7 July 2023 until 11 October 2023 and said they detailed the presence of heightened anxiety and impaired powers of concentration that affected her ability to perform tasks and delayed their completion. Ms Sortino also disclosed consulting a medical practitioner and psychologist. I can accept that health issues may have contributed to the length of the delay following 29 September 2023 but in circumstances where Ms Sortino already knew she was outside the 21-day time period and had already complied material for a ‘Worksafe claim’, it was incumbent on her to complete and lodge a Form F2 as expeditiously as possible. [21] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 75-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the 75-day delay. The absence of an acceptable or reasonable explanation weighs against an extension of time. Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b) -- 4 of 8 -- [2023] FWC 2972 5 [22] A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.9 Ms Sortino’s contention is that she was dismissed on 7 July 2023 but her dismissal was never communicated to her because the Respondent misrepresented her cessation of employment as an ending of a fixed term contract. Ms Sortino contends that it was only once she had reasonable opportunity to know she had in fact been dismissed, by discovering on 29 September 2023 her contract was not a specified term contract, that she was able to make her application. [23] The Respondent contends Ms Sortino was not dismissed and that the relevant date for the purposes of s.394(3(b) is the date upon which Ms Sortino became aware her employment had ceased. The Respondent submits that Ms Sortino was aware her employment had ceased on 7 July 2023 and therefore had the benefit of the whole 21-day period in which to file the application. [24] Without determining whether or not Ms Sortino was dismissed, I am satisfied Ms Sortino was aware her employment had ceased on 7 July 2023. I have noted Ms Sortino’s contention that she had initially relied on what she claims was the Respondent’s misrepresentation in relation to the nature of her contract but, as outlined below, Ms Sortino asserts she was disappointed and aggrieved by this outcome because she had wanted her employment to continue. I am therefore satisfied that Ms Sortino had the full period of 21 days to consider her position in the light of her employment ceasing and consider this is a neutral consideration. Action taken to dispute the dismissal – s.394(3)(c) [25] The Respondent maintains no action was taken by Ms Sortino to dispute the dismissal prior to filing the application apart from her enquiries to the Commission on 28 September 2023 and submits this factor is a neutral consideration. [26] Ms Sortino asserted that she had expressed disappointment on and after 16 May 2023, when she was informed that her contract would not be extended, and that she had made multiple requests and pleas for continuing work. Ms Sortino also said she sent a message to the Deputy CEO of the Respondent on 21 June 2023 requesting a meeting, with the intention of discussing her employment ending and options that might be available, but received no response. [27] Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.10 Accordingly, this factor weighs in favour of a finding that there are exceptional circumstances. Prejudice to the employer – s.394(3)(d) [28] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere 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. Merits of the application – s.394(3)(e) -- 5 of 8 -- [2023] FWC 2972 6 [29] I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them in their totality here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. [30] Ms Sortino asserts there had been no issues of performance, capacity, or conduct raised with her during her employment and no valid reason for her dismissal. Ms Sortino outlined the essence of her case on the merits by stating that the termination of her employment relationship and dismissal was unfair because the Respondent had previously made representations that her employment would extend beyond the end of the contract and never came back to her withdrawing them prior to the termination of the employment relationship. Ms Sortino also asserts she was not treated equally, claiming another colleague engaged by the same ‘hiring manager’ in project work on a fixed term contract was retained when she was not, and that the Respondent renewed many contract employee roles but not hers, even though there was ‘an abundance of project related work’ and budgetary allowance for the project she had been engaged on. [31] The primary argument of the Respondent is that Ms Sortino’s employment did not cease by reason of dismissal for the purposes of s.386 but rather her employment came to an end by the effluxion of time. The Respondent submits Ms Sortino was aware her contract had been twice extended and that her employment was to come to an end on 7 July 2023 and this is not a case where there had been a series of rolling contracts over a number of years and a reasonable expectation of ongoing employment. The Respondent contends that while there is a factual dispute that cannot presently be resolved, the limited evidence currently before the Commission supports a finding that that there was a maximum term contract that ended according to its terms. Ultimately, the Respondent submits that while the merits can only be considered at a high level at this stage without the benefit of any evidence from the Respondent, they do not support a finding of the existence of exceptional circumstances. [32] The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.11 Having reviewed the material and heard from the parties, I consider the merits of Ms Sortino’s application turn on some contested points of fact that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. I do not consider the merits to tell for or against an extension of time. They are a neutral consideration. Fairness as between the person and other persons in a similar position – s.394(3)(f) [33] 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. Neither party has brought to my attention any relevant matter -- 6 of 8 -- [2023] FWC 2972 7 concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Conclusion [34] The determinant for the enlivening of the Commission’s power to allow a further period for an unfair dismissal application to be made is not that there is a reasonable basis for doing so. The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. [35] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications: “[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. [39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”12 [36] Having regard to and having weighed each of the matters I am required to consider under s.394(3), and then having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, 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, Ms Sortino’s unfair dismissal application is dismissed. -- 7 of 8 -- [2023] FWC 2972 8 DEPUTY PRESIDENT Appearances: A Sortino, Applicant. A Crocker of counsel for Wintringham. Hearing details: 2023. Melbourne (via Microsoft Teams): November 20. Printed by authority of the Commonwealth Government Printer <PR768244> 1 Exhibit A4, Digital Court Book (DCB) at page 42. 2 [2017] FWCFB 5162. 3 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 4 Ibid. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 6 Fair Work Act 2009 (Cth), s.394(2)(a). 7 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]. 8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]. 9 Ayub v NSW Trains [2016] FWCFB 5500. 10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300. 11 Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71]. 12 [2018] FWCFB 901. -- 8 of 8 --