Anica Buchter v Australian Croatian Association [2020] FWC 4694

1 Fair Work Act 2009 s.394—Unfair dismissal Anica Buchter v Australian Croatian Association (U2020/11438) DEPUTY PRESIDENT MASSON MELBOURNE, 11 SEPTEMBER 2020 Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. [1] This decision concerns an application by Ms Anica Buchter (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). [2] The Applicant’s employment with the Australian Croatian Association (Respondent) was terminated with effect from 20 July 2020. The unfair dismissal application was lodged on 21 August 2020. [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 10 August 2020. The application was therefore filed 10 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request. [4] Determination of the extension of time application was conducted, pursuant to s 398 of the Fair Work Act 2009 (the Act), by way of a conference on 11 September 2020. At the conference the Applicant appeared on her own behalf. Ms J Nichols of Sladen Legal was granted permission to appear on behalf of the Respondent pursuant to s 596 of the Act. Mr Luc Cengija (Mr Cengija) who is the Venue Manager appeared and gave evidence for the Respondent. [5] 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.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. [2020] FWC 4694 DECISION -- 1 of 8 -- [2020] FWC 4694 2 which, although individually of no particular significance, when taken together can be considered exceptional.2 [6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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. [7] 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. [8] 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. Background and evidence [9] Before turning to consider the matters set out at s 394(3) it is useful to summarise the relevant background and evidence. [10] The Applicant commenced employment with the Respondent on 17 September 2019 as the Functions Manager and reported to Mr Cengija. While a written contract of employment was not entered into, the Applicant was covered by the Registered and Licensed Clubs Award 20103 (the Award).4 [11] The Respondent’s operations have been significantly impacted by the Victorian state government restrictions imposed to deal with the Covid 19 pandemic. The Respondent ceased operations on 23 March 2020, temporarily closed its bistro, functions area and gaming facilities and stood down all employees from that date,5 including the Applicant.6 The Respondent qualified for and applied for Federal government JobKeeper payments in respect of its employees when that program was introduced. The Respondent reopened its bistro and 2 Ibid. 3 MA000058 4 Exhibit R1, Witness Statement of Mr Luc Cengija, dated 9 September 2020 at [5]-[6] 5 Ibid at [7]-[9] 6 Ibid, Annexure LC-1 -- 2 of 8 -- [2020] FWC 4694 3 functions area to the public on 5 June 2020 which allowed the Applicant and other employees to return to work following which return, employees continued to receive JobKeeper payments.7 [12] According to Mr Cengija the Respondent had experienced a significant reduction in functions booked between July and December 2020 at the time it was considering the Applicant’s role. As at 23 June 2020 only 5 functions were booked across that whole period compared to the normal 3-4 functions per month.8 The reduction in functions led to a decision by the Respondent’s Management Committee at a meeting on 8 June 2020 that the role of Functions Manager held by the Applicant was no longer required to be performed by anyone.9 [13] In an email sent by Mr Cengija dated 2 July 2020, the Applicant was invited to attend a meeting on 6 July 2020. The subject matter of the meeting was not specified in the email.10 At the meeting on 6 July 2020, to which the Applicant, Mr Cengija and two Committee members attended, the Applicant was advised that the Respondent had identified her position was to be made redundant, that there were no opportunities for redeployment and that her employment would likely terminate on 13 July 2020. The Applicant was invited to provide suggestions and/or alternatives to her employment terminating due to redundancy and was requested to respond by 4.00pm on 8 July 2020. A letter was also given to the Applicant at the end of the meeting reflecting the information she received during the meeting.11 [14] Following the meeting on 6 July 2020, the Applicant sent an email to Mr Cengija that evening in which she stated that she was shocked by what transpired in the meeting and attached a ‘Certificate of Capacity’ for an injury sustained on 3 July 2020. The certificate indicated that the Applicant had ‘Neck pain injury radiates to the left upper limb??C5 lesion’ and had no capacity for employment from 6 July to 19 July 2020.12 In further correspondence from the Applicant to Mr Cengija on 7 July 2020 she indicated that she felt ‘overwhelmed, intimidated and ambushed’ by the meeting on 6 July 2020. She also asked whether the deadline for responding to the invitation for her to provide ‘suggestions/solutions’ to mitigate her termination still applied in light of her ‘Certificate of Capacity’.13 [15] Mr Cengija responded to the Applicant’s correspondence on 7 July 2020 and in doing so expressed disappointment that the Applicant had failed to report her injury at the time it was said to have occurred on 3 July 2020. He also observed that the Certificate of Capacity did not identify any ‘attention, memory and judgement’ impacts from the injury that would prevent the Applicant responding to the letter issued to her on 6 July 2020. An extension of time until 12.00 midday on 9 July 2020 to allow a response from the Applicant was provided by the Respondent.14 [16] On 9 July 2020 the Applicant wrote to the Respondent’s Committee members and Mr Cengija and stated that, she could not respond to the request to provide a solution to mitigate 7 Exhibit R1 at [12]-[13] 8 Ibid at [14]-[15] 9 Ibid at [17]-[18] 10 Ibid, Annexure LC-2 11 Ibid, Annexure LC-3 12 Ibid, Annexure LC-4 13 Ibid, Annexure LC-5 14 Ibid, Annexure LC-6 -- 3 of 8 -- [2020] FWC 4694 4 the proposed termination of her employment, she was undergoing further medical procedures to determine her capacity and requested the Respondent’s support.15 The deadline for allowing a response from the Applicant was subsequently extended by the Respondent to 4.00pm on 20 July 2020.16 [17] An email from the Applicant to Mr Cengija on 19 July 2020 contained a further Certificate of Capacity that extended her period of incapacity to 16 August 2020. She also advised in the email that due to her incapacity she was unable to respond for an indefinite period to the request for solutions or suggestions to mitigate the termination of her employment.17 On receipt of the Applicant’s email the Respondent considered whether to further extend the deadline for a response from the Applicant. The Respondent concluded that the Applicant’s physical injury did not affect her mental capacity and that a further delay was unlikely to change the Respondent’s conclusion regarding the Applicant’s position being redundant. Mr Cengija called the Applicant after 4.00pm on 20 July 2020 and advised her that her employment was terminated effective immediately and that a letter confirming this would be sent to her.18 [18] On 21 July 2020 the Applicant provided the Respondent with a Workers Compensation Injury Claim form dated 21 July 2020. The Respondent subsequently contacted Worksafe Victoria on 22 July 2020 to advise that they did not accept liability for the claim and requested that a formal investigation be undertaken into the claim. An investigator was subsequently appointed by WorkSafe Victoria with whom Mr Cengija met on 4 August 2020. The Respondent and Applicant were separately notified on 19 August 2020 that the claim had been rejected. The Respondent has since been advised that the Applicant is disputing the decision of the investigator and has requested a conciliation with the Respondent through the Accident Compensation Conciliation Service.19 [19] On or about 1 August 2020 the Applicant “bumped into” a Ms Anita Dulic, an acquaintance of the Applicant from within the Croatian community. According to the Applicant, Ms Dulic agreed with the Applicant that her dismissal was unfair and that despite the Applicant’s fears of being ostracised she was encouraged by Ms Dulic to take the matter further.20 [20] Following the rejection of the Applicant’s workers compensation claim on 19 August 2020, she sought advice from a lawyer at Maurice Blackburn in relation to her legal rights. During that conversation the Applicant says she was advised that she ought to have made an unfair dismissal application. Following this conversation, the Applicant filed an unfair dismissal application.21 [21] Since the Applicant’s dismissal the Respondent’s operations have been further impacted by the Covid 19 Stage 3 regional restrictions introduced by the Victorian government on 6 August 2020. As a consequence, the Respondent has no functions currently 15 Ibid, Annexure LC-7 16 Ibid, Annexure LC-8 17 Ibid, Annexure LC-9 18 Ibid, Annexure LC-10 19 Ibid at [58]-[64] 20 Exhibit A1, Witness statement of Ms Anica Buchter at [5] 21 Ibid at [6] -- 4 of 8 -- [2020] FWC 4694 5 booked for the September-November 2020 period and only one tentative booking for December which Mr Cengija says is likely to be cancelled.22 [22] I now turn to consider the matters set out at s 394(3) of the Act. Reason for the delay [23] 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 of the circumstances must be considered.23 [24] The Applicant submits that after the initial notification on 6 July 2020 of her foreshadowed redundancy she was stunned as the redundancy was not expected. No evidence was led as to how long this reaction lasted or that her reaction incapacitated her to an extent that she was incapable of filing an unfair dismissal application within the required time period following her dismissal on 20 July 2020. It is to be noted that the Applicant filed a worker’s compensation claim on 21 July 2020. The Applicant submits that after her initial reaction abated, she decided not to pursue an unfair dismissal application following her termination because of the close personal and cultural connections within the Croatian community in Geelong. These close connections drove her concern that she would be shunned, ridiculed and avoided by members of the community if she pursued an unfair dismissal application. [25] The Applicant further submits she had to weigh up the consequences for herself and her family in pursuing an application for unfair dismissal. She says she was also discouraged by work colleagues from pursuing an application because of their expressed concerns for the potential impacts on her health. It was only following her conversation with Ms Dulic and when the Applicant was advised of an investigation by the Respondent’s insurer CGU into her injury claim that she says her hand was forced to seek legal advice. The Applicant then sought advice from a solicitor of Maurice Blackburn on 21 August 2020 following which she filed her application that same day. [26] I do not consider the matters raised to constitute an acceptable or reasonable explanation for the delay. The decision to file an unfair dismissal application may be challenging and come at a personal cost to some individuals, perhaps more so in tight knit or smaller communities where the role of the relevant employer in the life of the community is substantial. It must be said however that the Applicant’s concerns about the potential personal impact of an unfair dismissal application on her personal relationships within the Australian- Croatian community of Geelong was based on speculation and was challenged by Mr Cengija. Even if there were some basis for the Applicant to hold such concerns, of which there is little or no evidence before me, I do not regard such concerns as constituting circumstances that are out of the ordinary course, unusual, special or uncommon. [27] I would further observe that the Applicant’s submission that she was concerned that her unfair dismissal application would lead to her being shunned, ridiculed or avoided by 22 Ibid at [57] 23 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] -- 5 of 8 -- [2020] FWC 4694 6 members of the Geelong Croatian community, this concern discouraging her from making a timely unfair dismissal application, does not sit comfortably with her apparent willingness to make a worker’s compensation claim against the Respondent immediately following her dismissal. Such an application, on which I make no judgement, would seem as likely (or unlikely) to provoke the community reaction the Applicant was so concerned about in the context of her unfair dismissal application. On the basis of this tension I find the Applicant’s concerns regarding a community backlash overstated and unconvincing. [28] It is clear that the Applicant prioritised her workers compensation claim which she made on 21 July 2020 immediately following her dismissal. It was only when that claim was rejected on 19 August 2020 following an investigation by the insurer that the Applicant sought legal advice on 21 August 2020 and then filed her unfair dismissal application. The fact that the Applicant prioritised her workers compensation claim was her choice and does not act to now provide a reasonable explanation for her delay in filing an unfair dismissal application. [29] In the above circumstances I do not accept the explanation as preventing the Applicant from lodging the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [30] The Applicant was notified of the dismissal on the same day that it took effect on 20 July 2020 and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration. Action taken to dispute the dismissal [31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.24 [32] While the Applicant filed a workers compensation claim on 21 July 2020, the Applicant took no action to contest the dismissal, other than lodging her unfair dismissal application. In the circumstances, I regard this as a neutral consideration. Prejudice to the employer [33] I cannot identify any prejudice that would accrue to the company 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 [34] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of 24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. -- 6 of 8 -- [2020] FWC 4694 7 the Application are set out in the materials that have been filed. The Applicant says that the Respondent is a large entertainment complex and the role she formerly held, that of Functions and Bistro Manager, is an essential role and will be required when the currently closed venue reopens. While acknowledging that the venue had closed due to the Covid 19 pandemic restrictions she says that all positions would have been similarly affected by the closure, not just her role, and she says that no other roles were made redundant. Further she had not been subject to performance or conduct warnings. The Respondent contends that the position formerly held by the Applicant was redundant due to the reduction in the number of functions booked at the Respondent’s venue over the next six months which made retention of the position untenable. [35] Having examined the filed materials and heard from the parties, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration. Fairness as between the person and other persons in a similar position [36] 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. [37] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Conclusion [38] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision. -- 7 of 8 -- [2020] FWC 4694 8 DEPUTY PRESIDENT Appearances: Ms A. Buchter on her own behalf Ms J. Nichols on behalf of the Respondent Hearing details: 2020 Melbourne 11 September Printed by authority of the Commonwealth Government Printer <PR722433> -- 8 of 8 --