Angela James v N & R Shankly Pty Ltd t/as Contemporary Catering

[2021] FWC 3899

[2021] FWC 3899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 Unfair dismissal

Angela James
v
N & R Shankly Pty Ltd t/as Contemporary Catering
(U2021/4915)

COMMISSIONER MIRABELLA MELBOURNE, 6 JULY 2021

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Ms Angela James for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

[2] Ms James’s employment with N & R Shankly Pty Ltd, trading as Contemporary Catering (Company) was terminated on and with effect from 10 May 2021. 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 31 May 2021. Ms James’s Application was lodged on 4 June 2021. She asks the Commission to grant a further period for the application to be made under s 394(3).

[3] 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’, these being 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

[4] 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.

[5] 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.

[6] 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 consider these matters in the context of Ms James’s Application.

[7] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. 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. 3

[8] 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 when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 4

[9] Ms James said that upon being dismissed, ‘straight away I looked at unfair dismissal’. Prior to lodging her Application, Ms James had sought advice from the Fair Work Ombudsman and the Commission. In her Application Ms James declared that it was being made within 21 of her dismissal taking effect. In a subsequent written submission, Ms James stated that ‘I had posted all my paperwork, but I accidently sent the mail to the wrong address’. The ‘wrong address’ to which Ms James referred was that of the Company’s. The Company received it on 27 May 2021 and on the same day emailed Ms. James asking her if it had been sent to them in error and whether instead it was intended for the Commission. Ms James did not dispute that she received the email but says she was confused and did not understand how the Company had a copy of her Application. Ms James confirmed that she understood the meaning of the Company’s email when her husband explained it to her later on the same day. Ms James said that she is not good with computers and that she then asked her son for assistance to lodge the Application online but that it was not lodged until 4 June 2021 because it ‘takes my son a while to get him to do what I ask.’

[10] Although Ms James sent the Application to her former employer in error, when she realised that she had made a mistake, four days remained to lodge her Application within the 21 day prescribed period. Instead, the Application was lodged eight days after she was made aware of her error and four days out of time. Having regard to the evidence before me, I am not persuaded that Ms James has provided an acceptable or reasonable explanation for the delay. This weighs against a conclusion that there are exceptional circumstances.

[11] Ms James was notified of her dismissal on the same day that it took effect. Other than making the application, and the steps taken and referred to above of contacting the Fair Work Ombudsman and Fair Work Commission before making her application, and mistakenly providing a copy of the application to the Company she did not take any action to dispute the dismissal. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms James and other persons. The allegation Ms James makes that another employee was not dismissed for his alleged misconduct is a matter that could only be resolved in a hearing of the merits. There is no evidence of prejudice to the employer. I consider these four matters to be neutral considerations.

[12] As to the merits of the application, Ms James said that she was unfairly dismissed for elderly abuse. She disputes that she made any physical contact with an aged care resident and that in fact she was trying to protect herself from a violent resident who has behavioural issues. The Company submitted that Ms James was dismissed because she breached the Aged Care Act 1997 (Cth) and the Company’s Code of Conduct by physically shoving an aged care resident and yelling at him. The merits of the Application would turn on questions of evidence and factual findings. Based on the limited material before me, I am not able to make any firm assessment of the merits to tell for or against an extension of time. The merits are a neutral consideration.

[13] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms James, I am not satisfied that there are exceptional circumstances. In my view, there are no 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, Ms James’ Application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

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

 2   Ibid.

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

 4   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].