Anai Van-Hamburg v NTI Limited
[2024] FWC 31
•10 JANUARY 2024
| [2024] FWC 31 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anai Van-Hamburg
v
NTI Limited
(U2023/11952)
| COMMISSIONER LIM | PERTH, 10 JANUARY 2024 |
Application for an unfair dismissal remedy – extension of time – extension granted
This decision concerns Ms Anai Van-Hamburg’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
NTI Limited (Respondent) employed Ms Van-Hamburg as a Claims Consultant on 1 July 2021. The Respondent dismissed Ms Van-Hamburg on 9 November 2023. Ms Van-Hamburg lodged her application with the Fair Work Commission on 1 December 2023.
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.
In Ms Van-Hamburg’s case, the period of 21 days ended at midnight on 30 November 2023. Her application is one day out of time.
Ms Van-Hamburg seeks a further period for her application to be made under s 394(3). The Respondent opposes this request.
The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 394(3)(a)–(f) of the Act.
I conducted a hearing via MS Teams on 4 January 2024. At the hearing, Ms Van-Hamburg represented herself, gave sworn evidence and was cross-examined. Permission was granted for Ms Moulton of Mapien to represent the Respondent. Ms Sue O’Brien gave evidence for the Respondent.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and accordingly grant Ms Van-Hamburg an extension of time.
The detailed reasons for my decision follow.
Should an extension of time be granted?
Under s 394(2) and (3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not 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 are of no particular significance, when taken together can be considered exceptional.[2]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 394(3):
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For Ms Van-Hamburg’s application to have been made within 21 days after the dismissal took effect, Ms Van-Hamburg needed to lodge by midnight on 30 November 2023. The delay is the period commencing immediately after that time until 1 December 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Ms Van-Hamburg’s evidence is that there were several factors that led to her lodging her application one day late.
First, she incorrectly thought that the 21-day timeframe for filing an application for an unfair dismissal remedy started counting the day after the dismissal and did not include the twenty-first day.
Second, Ms Van-Hamburg’s evidence is that at the time she was dismissed, she was in a poor mental state. This is because at the time she was dismissed, her great-grandmother had been hospitalised. Then on 23 November 2023, Ms Van-Hamburg’s great-grandmother passed away after several weeks of hospitalisation. Ms Van-Hamburg provided an invoice from a funeral home and an obituary notice as proof of her great-grandmother’s passing.
Ms Van-Hamburg’s evidence is that she was involved with the funeral arrangements for her great-grandmother. Further, that her large, extended family also came over for the funeral.
Ms Van-Hamburg’s also gave evidence that she lived with her great-grandmother during her childhood and was close to her. Her great-grandmother’s erratic health and sudden passing heavily affected her.
Ms Van-Hamburg’s evidence is that she was aware of the 21-day timeframe (even if calculated incorrectly), and that she intended to file her application earlier. However, her great-grandmother’s passing affected the timing of the filing of her application.
I accept all Ms Van-Hamburg’s evidence as outlined above.
The Respondent does not contest the validity of Ms Van-Hamburg’s mental health issues or how the death of her great-grandmother has impacted on her. However, the Respondent submits that they are not exceptional circumstances.
Considering the above, I find that the substantive reason for Ms Van-Hamburg’s delay in filing her application is a combination of her miscalculating the 21-day timeframe for lodgement, and the impact the death of her great-grandmother had on her emotionally and on her time.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[7]
I find that Ms Van-Hamburg has provided a satisfactory explanation for the period of the delay in making her unfair dismissal application. Though the passing of family could be seen as a normal part of life, Ms Van-Hamburg’s great-grandmother was an important family figure and person in Ms Van-Hamburg’s life. It is understandable that the sudden passing of Ms Van-Hamburg’s great-grandmother after weeks of hospitalisation would weigh on Ms Van-Hamburg emotionally, and the preparations for her funeral would take up Ms Van-Hamburg’s time. This is a factor that weighs in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect.
Ms Van-Hamburg confirmed during the hearing that she was aware that her resignation took effect on 9 October 2023. This is a factor that weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Van-Hamburg’s evidence is that she did not dispute the end of her employment. This is a factor that weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Ms Van-Hamburg submits that the delay in filing her unfair dismissal application has not caused any disadvantage or unfairness to the Respondent. The Respondent agrees.
Given that the delay in filing is one day, I find that there is no prejudice to the employer. This is a factor that weighs in favour of a finding of exceptional circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[8] Further, the primary consideration is whether Ms Van-Hamburg has an arguable case.[9]
The Respondent contends that Ms Van-Hamburg was validly dismissed for performance issues. Ms Van-Hamburg contests fairness of her dismissal. I am unable to make any findings as to merit at this preliminary stage.
I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Ms Van-Hamburg did not make submissions on this specific point in relation to the lateness of her application; her submissions were more directed to the contested merits of her unfair dismissal application. The Respondent submits that the lateness of the application has not caused any unfairness between Ms Van-Hamburg and any other employee in a similar position. I agree with the Respondent. I agree with the Respondent. I find this is a factor that weighs in favour of a finding of exceptional circumstances.
Conclusion
Having considered all the circumstances of this matter and the factors in s 394(3), I am satisfied that there are exceptional circumstances. I find that Ms Van-Hamburg’s reason for the delay is cogent and compelling, and I have also weighed the fact that the application was only one day late and there is no prejudice to the employer. I find that these two factors outweigh the considerations under s 394(3) that are neutral or weigh against a finding of exceptional circumstances.
As I am satisfied that there are exceptional circumstances, I allow Ms Van-Hamburg a further period of time to make her application extending to the date the application was filed on 1 December 2023.
COMMISSIONER
Appearances:
A Van-Hamburg, Applicant
M Moulton for the Respondent
Hearing details:
2024.
Perth (via Microsoft Teams):
January 4.
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[8] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[9] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
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