Amanda Thompson v Haab Designer Jewellers

[2021] FWC 6679

[2021] FWC 6679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Thompson
v
Haab Designer Jewellers
(U2021/10262)

DEPUTY PRESIDENT MASSON MELBOURNE, 24 DECEMBER 2021

Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.

Introduction and background

[1] This decision concerns an application made by Ms Amanda Thompson (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Haab Designer Jewellers (the Respondent) as a Retail Assistant in a full-time capacity from 10 February 2020 until her dismissal.

[2] The Applicant asserts in her Form F2 application that her employment with the Respondent was terminated with effect from 22 October 2021. The unfair dismissal application was lodged on 13 November 2021 at 12:12 pm.

[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 Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 22 October 2021 the period of 21 days ended at midnight on 12 November 2021. The application was therefore filed 1 day 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) of the Act.

[4] The matter was listed for Determinative Conference/Hearing on 22 December 2021 in advance of which both parties filed material in accordance with directions issued. After hearing from the parties, I determined to conduct the matter by way of a conference pursuant to s.398 of the Act. The Applicant appeared on her own behalf and gave evidence while Mr Tim Haab (Owner) appeared 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 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. I now turn to consider these matters in the context of the Application.

Reason for the delay

[9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 November 2021. The delay is the period commencing immediately after that time until 13 November 2021, although circumstances arising prior to that day may be relevant to the reason for the delay. 3

[10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4 An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay5.

[11] The explanation provided by the Applicant for the delay in lodging her application was that she was not able to start completing the Form F2 before 10:30 pm on 12 November 2021, the day it was due, as she had other commitments up until that time. No evidence was led as to the other commitments that prevented the Applicant from filing her application within the 21-day period. She says she made an enquiry with the Fair Work Commission at around 4:00 pm on 12 November 2021, however, was not able to speak to someone until approximately 5:00pm during which discussion she was advised to lodge an application online. In line with this advice, she proceeded to prepare her application at approximately 10.30pm and lodge it online but was unable to submit the application until around 12:14 am the next day (13 November 2021) due to the amount of time it took to complete the form and attach all relevant documents.

[12] The Applicant acknowledged in her Form F2, that her application was not made within the 21-calendar day of her dismissal taking effect and, in giving evidence stated that she was aware that 12 November 2021 was the last day to submit her application within the required timeframe.

[13] Following the provision of notice of termination on 11 October 2021, the Applicant sought a separation certificate from the Respondent along with various other documents including, written notice of termination, her signed employment contract, and a final payslip. Apart from the separation certificate, the other documents were provided to the Applicant, as requested, prior to her termination taking effect on 22 October 2021. The Applicant contends that several unsuccessful attempts made to obtain a separation certificate from the Respondent contributed to the delay in her lodging an unfair dismissal application. The Applicant also states that at the time of her dismissal she had been in the process of a purchasing a ring which was still held by the Respondent, and she was concerned at jeopardising her collection of the ring.

[14] Having regard to the forgoing, I do not accept the explanation provided by the Applicant as to her having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. The Applicant knowingly commenced the application at the “last minute,” an hour and a half before the cut-off provided by s.394(2) of the Act. Further, the failure of the Respondent to provide the separation certificate as requested by the Applicant was no impediment to her application for an unfair dismissal being made. Nor was the purchase of a ring from the Respondent a barrier to her commencing the preparation and filing of her application earlier than she did. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] It was not in dispute, and I find, that the Applicant was notified of her dismissal on 11 October 2021 with it taking effect 22 October 2021. Consequently, the Applicant had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[16] Other than seeking written notice and a separation certificate from the Respondent prior to her dismissal taking effect on 22 October 2021, it is not apparent that the Applicant took any action to contest her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] The application was filed less than one day outside of the 21-day period. In these circumstances I find there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

Merits of the application

[18] The Act requires me to take into account the merits of the application in considering whether to extend time.

[19] The Applicant contends that she was dismissed unfairly by the Respondent. She states that she was advised verbally at an impromptu meeting conducted upon her arrival at work on 11 October 2021 following her return from annual leave, that she was being provided with notice of termination due to the number of mistakes she was making. She says no evidence was presented to her at that time to verify the alleged errors made, particularly in relation to an incorrect ‘job packet’. Despite her requests, she did not receive written notice including reasons for her dismissal until 20 October 2021.

[20] The Applicant received one prior written warning with regards to her performance on 20 August 2021, however, she argues it lacked specificity regarding the alleged errors made and no follow up conversation was held with her to clarify its content as well as expectations for improvement and/or progression.

[21] The Respondent rejects the Applicant’s contentions. Mr Haab states that he was unable to provide specific information or evidence to the Applicant at the time of notification of her dismissal on 11 October 2021. Mr Haab says the Applicant was upset and loud and left the store after being advised of her dismissal. Contrary to the Applicant’s claims, he says specific training was provided to the Applicant and verbal conversations were had with her throughout her employment where performance issues were specifically addressed. The Respondent contends that performance assessments were initially conducted every 3 months after her commencement but as time progressed performance conversations occurred as required and regularly.

[22] To assist the Applicant improve her performance and meet the Respondent’s performance expectations, Mr Haab says the Applicant was provided with an exercise book to make notes of relevant instructions and/or requirements that she could refer to while working. According to Mr Haab, this book was never used by the Applicant and remained empty. With regards to the written warning, the Respondent contends that a long discussion was held with the Applicant in which the specific concerns relating to her performance were put to her.

[23] 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 an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case 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

[24] 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.

[25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion

[26] 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 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.

DEPUTY PRESIDENT

Appearances:

A Thompson, Applicant.
T Haab, Respondent.

Hearing details:

2021.
Melbourne (By Microsoft Teams):
December 22.

Printed by authority of the Commonwealth Government Printer

<PR737113>

1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

2 Ibid.

 3   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 5 Ibid at [40].