Alicia Jones v Hisense Australia Pty Ltd

[2018] FWC 5776

[2018] FWC 5776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Alicia Jones
v
Hisense Australia Pty Ltd
(C2018/4126)

COMMISSIONER SAUNDERS NEWCASTLE, 14 SEPTEMBER 2018

Application to deal with contraventions involving dismissal – late application – representative error – exceptional circumstances – extension of time granted.

Introduction

[1] On 27 July 2018, Ms Alicia Jones lodged an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that she was dismissed on 5 July 2018 and her employer, Hisense Australia Pty Ltd (Respondent), contravened ss.351 & 352 of the Act (Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] This decision concerns whether I should exercise my discretion to allow Ms Jones a further period of time for her Application to be made.

The Hearing

[4] On 24 August 2018, a hearing was conducted by telephone in relation to Ms Jones’s application for an extension of time.

[5] Mr Jones gave evidence in support of her application for an extension of time, as did her paid agent, Ms Becca Williamson, Industrial Relations Specialist of Dismissals Direct Pty Ltd (Dismissals Direct). The Respondent made written and oral submissions, but did not adduce any evidence in relation to the application for an extension of time.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

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

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for a person applying for an extension. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following in relation to “exceptional circumstances”:5

“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.”

Consideration

Reasons for delay – s.366(2)(a)

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[10] 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. 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 the delay, beyond the 21 day period. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,9the Full Bench explained the correct approach by reference to the following example:10

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[11] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 366(2)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 11

“[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.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[12] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 12

[13] If an applicant is relying on representative error to explain a delay, it is relevant to consider whether the applicant was blameless or whether the applicant by act or omission caused or contributed to the delay. 13 For example, did the applicant give instructions to their representative in a timely manner and what steps did the applicant take to ensure their application was filed in time?14

Relevant chronology of events and reasons for delay

[14] There is no dispute that Ms Jones was dismissed on 5 July 2018. The 21 day time period for Ms Jones to make a general protections application pursuant to s.365 of the Act expired on 26 July 2018. 15 Given that Ms Jones filed her Application on 27 July 2018, the Application was one day late.

[15] In accordance with the principles summarised in paragraphs [9] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 26 to 27 July 2018. However, the circumstances from the time of the alleged dismissal (5 July 2018) must be considered in order to determine whether there is an acceptable reason for any part of the delay beyond the 21 day period.

[16] Ms Jones first consulted Dismissals Direct in relation to her dismissal on the day she was dismissed (5 July 2018). Ms Williamson contacted Ms Jones by email on 9 July 2018 and sought various documents and information from her. Ms Jones responded to that request by sending various emails to Ms Williamson in the period from 9 July to 14 July 2018.

[17] On 14 July 2018, Ms Jones signed and emailed to Ms Williamson a copy of Dismissals Direct’s “Terms and Conditions and Instructions to Act” (Terms). By signing and returning the Terms, Ms Jones gave Dismissals Direct “unequivocal instructions to prepare and file an Application in the FWC to dispute your dismissal”. The Terms recorded Ms Jones’s final day of employment with the Respondent as 5 July 2018. Accordingly, Dismissals Direct was on notice that it had until 26 July 2018 to file an application on behalf of Ms Jones in the Commission. The Terms also record the scope of work to be undertaken by Dismissals Direct on behalf of Ms Jones as including “taking instructions from you and corresponding with you from time to time, reviewing documents provided by yourself and the Employer, preparing and filing the FWC Application …”

[18] After signing and returning the Terms to Dismissals Direct, Ms Jones believed that Dismissals Direct would file her Application within time.

[19] Ms Jones’s witness statement did not include any information about her communications and attempted communications with Dismissals Direct between 14 July 2018 and when her Application was filed in the Commission on 27 July 2018. However, Ms Jones was asked about those matters during her cross examination and explained that she was involved in a car accident on 16 July 2018, which resulted in her being in hospital for part of one day, and that she was in email communication with Mr Tim Rizzuto, Industrial Relations Specialist of Dismissals Direct, between 16 and 18 July 2018. Ms Jones also gave evidence that she:

• attempted to telephone Mr Rizzuto and Ms Williamson on about two to three occasions each in the period from 18 to 26 July 2018, but did not receive a response from either of them; and

• sent an email to Mr Rizzuto at 10:36am on 26 July 2018 (26 July Email), in which she sought an update from him about what he had done and what he had completed.

[20] Ms Jones gave evidence that at the time she sent the 26 July Email, she mistakenly believed that the 21 day time limit for filing her Application expired on 27 July 2018.

[21] I accept, on the balance of probabilities, the evidence Ms Jones gave in cross examination about the matters referred to in the previous two paragraphs. I make that finding for three reasons. First, Ms Jones’s evidence that she tried to call Ms Williamson on a number of occasions in the period from 18 to 26 July 2018 was corroborated by Ms Williamson in her oral evidence. Secondly, although Mr Rizzuto was not called to give evidence and no emails between Ms Jones and Mr Rizzuto in the period from 16 to 26 July 2018 were tendered, I accept that Ms Jones was able to access her emails and give reliable evidence of the 26 July Email during her oral evidence. Thirdly, Ms Jones’s evidence about her communications and attempted communications with Ms Williamson and Mr Rizzuto in the period between 16 and 26 July 2018 is supported by the medical issues Ms Williamson was dealing with at that time, which caused her to be absent and distracted from work (see paragraph [22] below).

[22] Ms Williamson was in receipt of medical treatment in the period from about 30 May 2018 to at least 27 July 2018. She was also hospitalised for part of that time. I accept Ms Williamson’s evidence that the medical treatment she received during that period had a number of side effects, including confusion. I also accept Ms Williamson’s evidence that she lodged the Application from the United Kingdom and believed she had lodged it within time, but she was confused about the time difference between the United Kingdom and Australia, which resulted in her making a mistake and lodging the Application one day late.

[23] In my view, it is apparent from the evidence summarised in paragraphs [16] – [22] above that:

(a) at all times between 5 July 2018 and 26 July 2018, Ms Jones acted reasonably, diligently and in a timely manner to have her Application filed within time. In particular, Ms Jones engaged a paid agent shortly after her dismissal, gave instructions in a timely manner, promptly completed and returned signed Terms, gave her agent instructions to file her Application in the Commission, and followed up with her representative in an attempt to ensure that her Application was lodged in time;

(b) Ms Williamson was confused and made a genuine mistake about the time difference between the United Kingdom and Australia. Ms Williamson’s mistake is the operative reason why the Application was filed one day late; and

(c) in the circumstances, Ms Jones is blameless for the one day delay in filing her Application.

[24] For the reasons set out above, I am satisfied that Ms Jones has provided a credible explanation for the whole of the delay in filing her Application. This factor weighs in favour of a finding of exceptional circumstances and granting Ms Jones an extension of time.

Any action taken by the person to dispute the dismissal – s.366(2)(b)

[25] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 16

[26] There is no dispute that Ms Jones took prompt action to contest the termination of her employment with the Respondent. This factor (s.366(2)(b)) weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

[27] Prejudice to the employer will weigh against granting an extension of time. 17 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.18 The employer must produce evidence to demonstrate prejudice.

[28] A long delay gives rise “to a general presumption of prejudice”. 19 The period of the delay in this matter was eight days which is a relatively short period of delay.

[29] The Respondent has not adduced any evidence to establish prejudice.

[30] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. The absence of prejudice is a factor which weighs in favour of a finding of exceptional circumstances. 20

Merits of the application – s.366(2)(d)

[31] Ms Jones contends that the Respondent dismissed her and contravened ss.351 and 352 of the Act. The Respondent denies these allegations.

[32] Whether Ms Jones was dismissed for any of the reasons contended for by her are contested issues of fact which will only be able to be determined after a full hearing on the merits, including cross examination of relevant witnesses. In the circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Fairness as between the person and other persons in a like position – s.366(2)(e)

[33] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 21 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[34] I am not satisfied that the issue of fairness as between Ms Jones and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[35] Ms Jones’s circumstances were out of the ordinary course, unusual, special and uncommon, in that she acted reasonably and diligently to instruct a paid agent to file her Application on time and followed up the paid agent in an attempt to ensure her Application was filed within time. The sole reason for the one day delay was the error by Ms Jones’s paid agent. Those matters, together with the other factors under s.366, lead me to conclude that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.

[36] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 27 July 2018 [PR 700383].

COMMISSIONER

Appearances:

T. Rizzuto, paid agent for Ms Jones.

Mr Vitale for the Respondent.

Hearing details:

2018.

Newcastle:

24 August.

Printed by authority of the Commonwealth Government Printer

<PR700382>

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2   Section 366(2) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ibid at [13]

 6   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 7   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 8   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]

 9   [2016] FWCFB 349

 10   Ibid at [31]

 11   [2018] FWCFB 3288 at [35]-[45]

 12   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 13   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-424; Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [25]

 14   Ibid

 15   That is, 21 days from 5 July 2018 (not including 5 July 2018) is 26 July 2018.

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 17   Ibid

 18   Ibid

 19   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 20   Long v Keolis Downer[2018] FWCFB 4109 at [66]

 21   [2016] FWCFB 6963