Amy Marshall v Honey Bunnies Pty Ltd T/A Little Flower Box

[2016] FWC 8244

[2016] FWC 8244 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Amy Marshall
v
Honey Bunnies Pty Ltd T/A Little Flower Box
(C2016/5960)

COMMISSIONER WILSON MELBOURNE, 18 NOVEMBER 2016

Application to deal with contraventions involving dismissal; whether extension of time should be granted.

[1] This matter concerns an application made by Ms Amy Marshall for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Marshall’s application relates to the termination of her employment by the Respondent, Honey Bunnies Pty Ltd T/A Little Flower Box on 9 September 2016, and was received by the Commission on 4 October 2016.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. It is apparent from the dates referred to above that the application was made outside of the time and provided within the Act.

[3] In this decision, I have considered whether an extension of time should be granted to Ms Marshall for the making of her application and, for the reasons set out below, I am satisfied that a further period should be allowed for the making of the application.

[4] In considering an application for an extension of time for the making of general protections application, the Actrequires I must be satisfied that there are exceptional circumstances, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 In the same legislative context it has been held that a decision as to whether to extend the time period involves the exercise of a discretion.2

[5] The Respondent, Little Flower Box, objects to the application continuing given that it was commenced after the statutory period for the making of a general protections application and that the circumstances of the matter are such that an extension of time should not be granted.
[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Ms Marshall, the Applicant, and the oral evidence of Peter Keeghan, one of the owners of the business, on behalf of the Respondent.

BACKGROUND

[7] Ms Marshall worked as a florist and shop assistant at The Little Flower Box at Eastland Shopping Centre in Ringwood, Melbourne, between 9 March 2016 and 4 October 2016. The circumstances by which her employment ended include an allegation by Ms Marshall that early in the morning of Friday, 4 October 2016 she queried by text message with Mr Keeghan whether her pay had been transferred into her bank account, which was due to occur that morning. Her submission is that he communicated that it had, but that upon attending for work later in the same morning she was forced to resign as result of allegations that were put to her by Mr Keeghan about her performance and conduct. She agrees that she did in fact say to Mr Keeghan that she had resigned, but submits that the decision to leave the employment of The Little Flower Box was not hers, but rather the Respondents.

[8] Having lost her job, Ms Marshall then took advice over the following few weeks as to what she could do about the circumstance. Her evidence includes that within that period she spoke to Legal Aid who in turn put her in touch with both the Fair Work Ombudsman and the Fair Work Commission about her rights. While Ms Marshall is imprecise about the dates that she spoke with each of those agencies, her evidence is that within the period of a few weeks after leaving her job she became aware of her entitlement to make a general protections application to the Fair Work Commission along with the understanding that the application needed to be filed within a 21 day period after the date upon which the termination of employment took effect.

[9] Ms Marshall gave evidence that she endeavoured to make a general protections application to the Commission through its e-filing portal on Tuesday, 27 September 2016 but was unsuccessful in doing so. Ms Marshall’s evidence includes that she endeavoured several times to upload the application but failed on each occasion. She tried to remedy the problem by logging out and logging back in again but with no success. Her evidence to the Commission in this matter includes material from her computer that would suggest that she endeavoured to make an e-filing on five occasions between 11:59 AM and 12:22 PM.

[10] Ms Marshall then relates that she was forced to go to an Officeworks store and print all the documents out and to then post them through Registered Post at the Ferntree Gully Australia Post Office.

[11] Ms Marshall’s submissions include that she spoke with an unnamed person within the Fair Work Commission regarding the failure of the e-filing portal. The material provided by Ms Marshall also includes a photocopy of a Registered Post lodgement receipt which is addressed to the Fair Work Commission and date stamped, apparently by Australia Post, at Ferntree Gully on 27 September 2016, which was a Tuesday. The Friday of that week, 30 September 2016 was the AFL Grand Final Public Holiday in Victoria meaning that there were no postal deliveries in the State on that day.

[12] Ms Marshall’s hardcopy application was received in the Commission on Tuesday 4 October 2016. The copy of the file provided to me includes a photocopy of the Registered Post envelope, however unfortunately the photocopy cuts off the Australia Post date-stamp, and so the date upon which the letter was posted is not readable.

[13] Mr Keeghan, for the Respondent, puts forward about Ms Marshall’s termination of employment firstly that it was her decision to resign, and that her resignation followed him querying with her a number of problems which had occurred since the commencement of her employment, including her directing potential customers to another business; alleged bullying by Ms Marshall of another employee; and her treatment of work experience students. Mr Keeghan submits that Ms Marshall asked whether if she offered her resignation she could be paid a week’s pay in lieu of notice.

[14] In relation to Ms Marshall’s efforts to make an application to the Commission within time, Mr Keeghan queries why she chose ultimately to post her application through the Registered Post system instead of using an Express Post envelope, when it would be known to her that an Express Post envelope would be more likely to be received within the statutory time period.

LEGISLATION

[15] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 366(2) OF THE ACT

[16] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[13] 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”. 3

[17] In considering whether an extension of time should be granted to Ms Marshall, I am required to consider all of the criteria in s.366(2), which I now do.

1. The reason for the delay

[18] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[19] In this case, Ms Marshall’s employment ended on 9 September 2016 and the final day of the 21 day period for the lodgement of a general protections application to be within time would have otherwise have been Friday 30 September 2016. However, that day was the AFL Grand Final Public Holiday in Victoria. About that circumstance, s.36(2) and (3) of the Acts Interpretation Act provides the following general principle;

“(2) If:

(a) an Act requires or allows a thing to be done; and

(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

(3) In this section:

"holiday" , in relation to the time for doing a thing, means:

(a) a day that is a public holiday in the place in which the thing is to be or may be done; and

(b) if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.”

”

[20] As a result, in Ms Marshall’s case the final day for the making of an application for it to be within time, was Monday, 3 October 2016.

[21] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[22] Ms Marshall submits that the reason there was a delay by her in making her general protections application is because of the difficulty she experienced with the Commission’s e-filing portal and that because she was unable after five endeavours to make a successful application, she needed to take the application form and have it printed and then mailed by to the Commission by Registered Post.

[23] She argues that when she posted the application on Tuesday, 27 September 2016, the application was posted within time and that, all things considered, she expected the application to be received by the Commission within the statutory 21 day period.

[24] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Marshall to lodge her application.

[25] In all, that period was a total of one day, for the reason that the day that would otherwise have been the final day for lodgement of a successful application was a public holiday. In this regard it is relevant to explain that the 21 days for lodgement does not include the date that the dismissal took effect, and the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a public holiday (where the Commission is closed) the timeframe will be extended until the next business day. However, public holidays or weekends that fall during the 21 days will not extend the period of lodgement. 7

[26] I find that Ms Marshall’s explanation about her lodgement difficulties, as being her explanation for their delay in making an application to the Commission.

[27] For the reasons set out above, on Tuesday, 27 September 2016, Ms Marshall still had some number of days to make a successful application within time, with the statutory time limit not due to expire until Monday, 3 October 2016. Ordinarily, it could be expected not only that the e-filing portal would allow a successful application to be made, and I note that there is insufficient evidence before me to draw a conclusion as to whether the problem that she experienced was at Ms Marshall’s end or the Commission’s end, but that also a document mailed at Australia Post Ferntree Gully, in suburban Melbourne, before the close of business on Tuesday, 27 September 2016, would find its way to the Commission’s premises in central Melbourne in time for the application to be properly received.
[28] As a result of these circumstances I am satisfied that Ms Marshall has provided an acceptable reason for there being a delay in making her application. Accordingly, this criterion resolves in her favour in my consideration of whether an extension of time for filing should be granted.

2. Any action taken by the person to dispute the dismissal

[29] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 8

[30] Ms Marshall’s evidence about the actions taken by her to dispute her termination of employment include the contact that she made not only with Legal Aid, but also the Fair Work Ombudsman and the Fair Work Commission in order to further her rights under the Act. Other than this action, I am satisfied that Ms Marshall took no other substantive action to dispute her dismissal until the making of her application to the Commission on 4 October 2016.

[31] In the circumstances of this matter, I take the view that consideration of this criterion is a neutral factor in my determination.

3. Prejudice to the employer (including prejudice caused by the delay)

[32] The delay in the filing of the application is one day. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time. In this regard I take into account that, in the course of the hearing before me, Mr Keeghan submitted that his business was a small one employing only a few people across three stores with him directly being involved in the business in hands-on way.

[33] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself create some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 9

[34] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

4. The merits of the application

[35] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.

[36] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.¹⁰

[37] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 11

[38] The merits of the application to which Ms Marshall refers are her query to Mr Keeghan early on the morning of Friday, 9 September 2016 whether her pay was being correctly transferred to her bank account. She draws from the fact that she made that enquiry and that later the same morning she was dismissed, and that she was dismissed because of her having made the enquiry. Mr Keeghan for his part disputes that characterisation and instead refers to a number of matters of conduct and work performance as being the factors that led him to decide to discuss with Ms Marshall her ongoing employment, and which then subsequently led to her offering her resignation.

[39] There is a considerable lack of agreement within the contentions put forward by the respective parties and so, in the absence of detailed evidence on the subject, it is inappropriate for the Commission at this time to draw any conclusions about the merits of Ms Marshall’s application.

[40] As result I consider this to be a neutral factor in my determination of Ms Marshall’s application for an extension of time for the making of her application.

5. Fairness as between the person and other persons in a like position

[41] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 12 On balance, I consider this to be a neutral consideration in Mr Marshall’s case.

[42] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Ms Marshall

[43] For these reasons, I grant an extension of time pursuant to s366 of the Fair Work Act and will issue an order that the time for Ms Marshall to file her general protections application made pursuant to s.365 of the Act be extended until 4 October 2016.

COMMISSIONER

Appearances:

Ms A Marshall on her behalf

Mr P Keeghan for the respondent

Hearing details:

2016.

Melbourne (by telephone):

November 9

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

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 7   see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593 and Kristia Cahill v Bstore Pty Ltd[2015] FWCFB 103, citing Acts Interpretation Act 1901 (Cth) ss.36(1), (2) and (3).

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

 9   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

10 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 11   Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941, (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445

 12   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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