Amani Rodgers v Tursa Employment and Training Limited

[2017] FWC 4314

[2017] FWC 4314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Amani Rodgers
v
Tursa Employment and Training Limited
(C2017/4167)

COMMISSIONER SAUNDERS NEWCASTLE, 18 AUGUST 2017

Application to deal with contraventions involving dismissal – extension of time refused

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 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

[2] This decision concerns whether I should exercise my discretion to allow Ms Amani Rodgers (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 18 August 2017, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from Ms Emily McRae, Senior Human Resources Officer of the respondent.

Legislative Scheme

[5] 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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] 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. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] 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 in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic11, the Full Bench explained (at [31]) the correct approach by reference to the following example:

“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.”

Relevant chronology of events and reasons for delay

[12] There is no dispute and I am satisfied on the evidence that the applicant’s employment with the respondent came to an end on 6 July 2017. There is an issue between the parties as to whether the applicant was dismissed, but that is not a matter for me to determine in the context of the present application for an extension of time. 12

[13] The 21 day time period for the applicant to make her Application expired on 27 July 2017. 13 Given that the applicant filed her Application at 3:50pm on 28 July 2017, the Application was one day late.14

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 27 to 28 July 2017. However, the circumstances from the time of the alleged dismissal (6 July 2017) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[15] In the period from 6 to 19 July 2017, the applicant was looking for work.

[16] On about 12 July 2017, the applicant obtained legal advice and was informed that she had 6 months to make a claim against the respondent.

[17] However, on about 13 or 14 July 2017 the applicant spoke by telephone to a person from the Commission and was told that she had 21 days from the date of dismissal to lodge a claim against the respondent. As a result of that conversation, the applicant was aware that she had until 27 July 2017 to make an application in the Commission against the respondent.

[18] On 19 July 2017, the applicant was informed that her brother had unexpectedly and suddenly passed away the previous day in Malaysia. The applicant spent a significant period of time on the telephone to the Malaysian embassy in the period from 19 July 2017 to 27 July 2017 in relation to the death of her brother and her attempts to have his body brought to Australia.

[19] On about 25 or 26 July 2017, the applicant again spoke to a person from the Commission and was told that she had until midnight on 27 July 2017 to lodge her application in the Commission.

[20] The applicant had difficulties working out what to put in her Application. She completed it on 27 July 2017 and signed it on that day. However, shortly after the applicant completed and signed her Application she had to go to hospital with her nephew. She left home to attend the hospital with her nephew at about 8:30pm on 27 July 2017 and returned home at about 1:00am or 2:00am on 28 July 2017.

[21] The applicant did not get much sleep when she returned home from the hospital because her nephew, who was on drugs at the time, had been released from hospital and she was concerned and stressed that he may become violent or engage in some other problematic behaviour. That is why the applicant says she did not lodge her Application in the Commission until 3:50pm on 28 July 2017.

[22] I accept that the applicant has provided an adequate explanation for not filing her Application in the period from 19 July 2017 to 28 July 2017. However, I am not satisfied that the applicant has provided an adequate explanation in respect of the period from 6 July 2017 to 19 July 2017. During that period of time the applicant was looking for work, but was not otherwise hindered from completing and lodging her Application. Further, during that period of time the applicant had spoken to the Commission and was aware of the requirement to lodge her Application by 27 July 2017. On balance, I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[23] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 15

[24] The applicant accepts that she did not take any action, other than filing her Application, to dispute her dismissal. This factor (s.366(2)(b)) weighs against granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[25] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17

[26] A long delay gives rise “to a general presumption of prejudice”. 18 The period of the delay in this matter was one day.

[27] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 19 No such evidence was adduced by the respondent in this case.

[28] In all the circumstances of this case, I am satisfied that prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[29] The applicant contends in her Application that the respondent has contravened s.344 of the Act. The applicant asserts that the respondent exerted undue influence or pressure on her to resign, but the applicant was not able to explain how any of paragraphs 344(a) to (e) of the Act may be engaged by the facts and contentions on which she relies.

[30] Some leniency must be afforded to the applicant to understand the merits of her Application, for she is self-represented. It became apparent during the course of the hearing that the applicant’s real general protections claim is one under s.340 of the Act. In particular, the applicant seems to contend that she exercised a workplace right by making a complaint about bullying conduct and, because she exercised that right, the respondent treated her adversely by forcing her to resign.

[31] The respondent denies that it forced the applicant to resign and says she resigned of her own free will. The resolution of that contested issue will only be able to be determined after a full hearing on the merits, including cross examination of the applicant and those employees of the respondent who were involved in the complaint made by the applicant and the applicant’s decision to resign. In those circumstances, I am satisfied that the merits of the Application insofar as it relies (or would, when amended, rely) on an alleged contravention of s.340 of the Act is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 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.”

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

Conclusion

[34] Having taken into account the matters referred to in paragraphs [12] to [33] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances, considered as a whole, were not out of the ordinary course, unusual, special or uncommon.

[35] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms A Rogers, applicant

Mr T Besley, of Just Us Lawyers, for the respondent

Hearing details:

2017.

Newcastle (via telephone):

18 August.

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

 6   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

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

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

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

 10   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]

 11   [2016] FWCFB 349

 12   Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321

 13   That is, 21 days from 6 July 2017 (not including 6 July 2017) is 27 July 2017.

 14   That is, 28 July 2017 is one day after 27 July 2017.

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

 16   Ibid.

 17   Ibid.

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

 19   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 20   [2016] FWCFB 6963

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