Angela Gibbons v Sonacare

[2021] FWC 6215

[2021] FWC 6215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Angela Gibbons
v
Sonacare
(C2021/4792)

DEPUTY PRESIDENT BOYCE SYDNEY, 1 NOVEMBER 2021

Application to deal with contraventions involving dismissal – request for an extension of time - application filed 18 minutes outside 21-day time limit – poor and unstable internet connection supported by evidence – exceptional circumstances need not be unique, unprecedented, or very rare – credible reason for delay – satisfaction as to exceptional circumstances – discretion to grant extension of time enlivened – extension of time granted.

Introduction

[1] On 13 August 2021, Ms Angela Gibbons (Applicant) filed a general protections application involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Sonacare (Respondent) for discriminatory reasons (s.351), and/or for a temporary absence due to an illness or injury (s.352).

[2] In addition to rejecting the allegations as to contravention asserted by the Applicant in her Application, the Respondent also says that the Application is out of time. This decision concerns the Applicant’s request for an extension of time.

[3] Section 366(1) of the Act provides that an application made under s.365 of the Act must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act).

[4] It is not in dispute that the Applicant:

(a) commenced her employment with the Respondent on 19 February 2021;

(b) was dismissed by the Respondent on 22 July 2021;

(c) was aware that she had been dismissed on 22 July 2021;

(d) filed her Application at 12.17am on 13 August 2021; 1

(e) should have filed her Application by 11.59pm on 12 August 2021 (to be within the 21-day time limit); and

(f) filed her Application 18 minutes outside of the 21-day time limit.

[5] At the hearing, the Applicant appeared for herself, and Dr Laura Sowden, Special Counsel, Barry Nilsson Lawyers, appeared with permission on behalf of the Respondent.

[6] The Applicant was granted leave at the conclusion of the hearing to file and serve further limited evidence and submissions to support her request for an extension of time. In this regard, the following directions were issued:

“1. The Applicant is to file with the Commission and serve on the Respondent any submissions in response to the Respondent’s submissions filed on 12 October.

2. By 4:00pm AEDT Tuesday, 19 October 2021, the Applicant is to file with the Commission and serve on the Respondent any further documentation that identifies that the messages contained at pages 52 and 53 of the Courtbook were messages received on 12 August 2021.

3. By 4:00pm AEDT Wednesday, 20 October 2021, the Respondent is to advise, by way of email to Chambers any matters it wishes to raise concerning the matters at [1] and [2] above.

4. Liberty to apply generally.”

[7] The Applicant filed further limited evidence on 19 October 2021 as directed. The Respondent did not raise any further matters with my Chambers as provided for by Order [3] above.

Legal principles

[8] Section 366(2) of the Act reads:

“366 Time for application

…

(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.”

[9] Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to extend time. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”,has stated:

“[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.

[14] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…” 2

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 3

(emphasis added)

[10] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters 4:

“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

..

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.

…

[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.” 5

Reason for delay 6

[11] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group (Bianco Mamo), as follows:  7

“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”

[12] It is clear from the evidence filed by the Applicant that she had internet connection difficulties between 6.00pm on 12 August 2021 and 12.30am on 13 August 2021. 8 The Applicant says that these difficulties caused her to file her Application 18 minutes outside of the 21-day time limit. She also says that she had been attempting to file her Application well before midnight on 12 August 2021, but was confronted with internet connection difficulties that meant her Application was not uploading to the Commission’s website. The evidence also highlights that some parts or pages of the Application did not upload, however, her Application was nonetheless accepted as filed at 12.17am by the Commission Registry via a lodgement time-stamp receipt with a reference number. The Applicant was not cross-examined as to her reasons for delay.

[13] The Respondent does not contest that internet connection difficulties were experienced by the Applicant, but essentially submits that internet connection difficulties are not out of the ordinary course, unusual, special, or uncommon. This submission is partly based upon the Applicant’s own evidence that she regularly has a poor internet connection in her home suburb. According to the Respondent, the Applicant should have factored into her timing for filing that she regularly has a poor internet connection, and thus sought to file her Application some days prior to the expiry of the 21-day time period.

[14] All in all, I find on the evidence before me that the Applicant has provided a credible and reasonable explanation for delay. Poor internet connections may well be a regular occurrence for the Applicant, but I do not accept that this fact should place an onus upon her to have filed her Application days prior to the 21-day time limit. Exceptional circumstances need not be unique, unprecedented, or very rare. In some instances, where one is simply browsing the internet for social media or daily news purposes, a poor internet connection will be of no moment, or little more than an annoyance. In this case, a normal or solid internet connection was vital to the Applicant’s ability to file her Application on time. This is not a case where the Applicant sought to file her Application moments before 11.59am on 12 August 2021. Rather, the evidence shows that she was attempting to file her Application for around six hours prior to the expiry of the 21-day time limit, and was in contact with her internet provider during this time, who was unable to resolve the internet problem. In short, the Applicant had paid for an internet connection that she expected to be reliable, but at the time she needed it, was not reliable or otherwise functioning normally. In my view, the Applicant’s reasons for her 18 minute delay in filing her Application weigh in favour of a grant of an extension of time.

Action taken by the Applicant to dispute her dismissal 9

[15] There is some evidence before me as to actions taken by the Applicant to dispute her dismissal. This includes the Applicant raising concerns as to her dismissal, and the purported reasons for same, via text message and email with Dr Reid (albeit these communications occurred at or around the date of the Applicant’s dismissal). However, in my view, this criterion is not one that weighs in favour of a finding as to exceptional circumstances, and I therefore treat it as a neutral consideration.

Prejudice 10

[16] In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor automatically weighing in favour of a finding as to exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made). I therefore treat this criterion as a neutral consideration. 11

Merits 12

[17] The principles stated Kyvelos v Champion Socks Pty Ltd 13 (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 14

[18] In Kornicki v Telstra-Network Technology Group, 15 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[19] The Applicant says that adverse action (i.e. dismissal) was taken against her for a prohibited reason/s, being discriminatory reasons, and/or because she took a temporary absence due to an illness or injury. The Respondent rejects these allegations, and disputes many of the underlying facts upon which they are based. 16 The Respondent also says, not by way of formal jurisdictional objection, but by way of submissions as to the merits, that as the Applicant was a casual employee and was not dismissed (i.e. she simply ceased being offered shifts). It follows, says the Respondent, that no adverse action has been taken against the Applicant.

[20] The merits of the Application have not been tested before me. The Respondent’s assertion that the Applicant has not been dismissed is contrary to the written termination email sent to the Applicant on 22 July 2021 (attaching a separation certificate signed by Dr Reid that provides that the reason for separation is based upon “unsatisfactory work performance”). The evidence is that the Applicant was off work due to illness shortly prior to her dismissal. She has the benefit of the reverse onus under s.361 of the Act, and has put forward evidence that highlights that some of the performance issues that have been relied upon by the Respondent to dismiss her hold weak foundations.

[21] Conversely, the Respondent has advanced evidence, albeit not formally verified by Dr Reid, as to the Applicant’s performance that if proven at hearing, may well dispel any suggestion that the Applicant was terminated for other than performance reasons.

[22] As the case law identifies, it is not the Commission’s role to embark upon a detailed consideration of the substantive case of respective parties for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application. In my view, the merits of this Application will require close scrutiny before a court. 17 Given that I am not in a position to determine the merits of the Application at this stage of proceedings, I treat it as a neutral consideration for the purposes of this decision.

Fairness as between the Applicant and other persons in a similar position 18

[23] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances. 19

[24] The Respondent made the following submissions to this criterion:

“8.1 The Commission may consider matters of a similar kind or circumstance that are either before the FWC or have been decided in the past.

8.2 As referenced above, in Wearne v Flight Centre Travel Group, the applicant had filed her application one day after the prescribed statutory time limit and the application for an extension of time was dismissed on the basis the applicant in this case was aware of her dismissal prior to the termination and lack of specificity relating to COVID-19. The Commission did not consider the applicant had exceptional circumstances.

8.3 The current Proceedings should be compared with the circumstances of Munro v Momentum Traffic Control where the Commission was satisfied that exceptional circumstances exists. The applicant in this matter was a single mother to three children with a serious health condition that required three expert surgeons at the same time. Due to an emergency surgery the applicant required, three days before the expiry of the 21-day statutory time limit, the applicant remained on strong medication and had to navigate the care of her children, therefore could not prepare the application.

8.4 In the current Proceedings, the Applicant had the opportunity to lodge her Application from 22 July 2021 but did not do so until after the 21-day statutory time limit. The Applicant’s reasons for the delay, namely the poor internet connection is not exceptional as to preventing the Applicant to lodge the Application before 13 August 2021. Further, the fact that the Applicant asserted that she had attempted to lodge the Application on three occasions between 22 July 2021 to 12 August 2021 is not sufficient. The Applicant had 21 days, a reasonable amount of time to prepare and submit her Application.” 20

[25] Neither of the cases referred to by the Respondent contain the same, or similar, characteristics and/or circumstances to those arising in this matter. Neither of the cases referred to concern an inability to file an application on the basis of a faulty or poor internet connection. Given I am not aware of any matters where there have been the same, or similar, characteristics and/or circumstances as this matter, I treat this criterion as a neutral consideration.

Conclusion

[26] I have taken into account and considered individually and collectively the criteria set out under s.366(2)(a)-(e) of the Act. In my view, the Applicant’s reason for delay, being poor and unstable internet connection at or around the time she sought to file her Application, in the context of a delay of only 18 minutes, is sufficient for me to be satisfied as to the existence of exceptional circumstances. I am equally satisfied as to the existence of exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criteria weighs in favour of a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral). 21

[27] On the basis of my reasons set out in this decision and having regard to the evidence and the submissions of the parties, I am satisfied as to the existence exceptional circumstances. With my discretion enlivened, I consider it appropriate to grant of an extension of time for the Applicant to file her Application. I therefore grant the Applicant’s request for an extension of time, for the Application to be filed by 13 August 2021. An Order to this effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Angela Gibbons (Applicant), for herself.

Dr Laura Sowden, Special Counsel, Barry Nilsson Lawyers, for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR735277>

 1   Statutory Declaration of Applicant made 20 September 2021 (CB pp.54).

 2   [2011] FWAFB 975.

 3   Ibid.

 4   [2018] FWCFB 901.

 5   Ibid, at [17], [19], [38]-[39].

 6  Section 366(2)(a).

 7   [2021] FWC 3903.

 8   Chat Transcript (2 pages) between Applicant and “Major” (Customer Service Officer) of iPrimus Customer Service on 13 October 2021; Statutory Declaration of Applicant made 20 September 2021 (CB pp.49-59).

 9  Section 366(2)(b)

 10   Section 366(2)(c).

 11   Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38]).

 12  Section 366(2)(d).

 13 (1995) 67 IR 298.

 14   Ibid at 299 to 300.

 15   Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 16   Respondent’s Submissions filed 12 October 2021, [7.1]-[7.10].

 17   Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].

 18  Section 366(2)(e).

 19   Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].

 20   Respondent’s Submissions filed 12 October 2021.

 21   See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.