Angie Jennings v The River

[2021] FWC 1024

[2021] FWC 1024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angie Jennings
v
The River
(U2021/156)

COMMISSIONER WILLIAMS PERTH, 25 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] Ms Angie Jennings (Ms Jennings or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is The River (the Respondent).

[2] Ms Jennings’ application states she was notified of her alleged dismissal when it took effect on 12 December 2020.

[3] The Respondent in its reply asserts that Ms Jennings was not dismissed but instead chose not to return to work after 12 December 2020.

[4] Ms Jennings made this application on 6 January 2021.

[5] Section 394 (2) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, the Commission has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[6] This application has been made more than 21 days after the dismissal took effect, and so cannot proceed unless a further period is allowed for the application to be made.

[7] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act. I invited her to provide any relevant evidence and submissions to assist the Commission in determining whether there are exceptional circumstances in this case.

[8] The Applicant has provided a written response to the Commission’s direction. This decision considers whether there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there exceptional circumstances?

The reason for the delay

[9] Ms Jennings’ submission to the Commission was as follows.

“I rang fwc on the 15/12 to request the necessary forms and was assured they would be express posted that day. Unfortunately that didn't happen. So I rang back on the 23/12. I waited for that time as it was Xmas and I expected delays. I requested the forms again but unfortunately they didn't arrive till two weeks later. By then I was out of time. This is really not my fault l don't know what more i could have done. I can't use technology which is why I needed the forms but they were not sent. I hope you will consider my application favourably.”

[10] I note that Ms Jennings lodged her completed application by email and has responded to the Commission’s request for submissions by email.

[11] Turning to consider the reason for the delay in making the application, which was the time apparently taken for the Commission to post the forms to Ms Jennings, the Commission has previously considered similar circumstances in the matter of Constantine Galigalis v The Group of Four Pty Ltd. 1 In this decision, Deputy President Sams held that he was not persuaded that a delay in being provided with forms for an unfair dismissal application by the Commission constituted exceptional circumstances within the meaning of section 394.2

[12] This decision was appealed, and a Full Bench of the Commission rejected that appeal as follows.

“We do not consider that the appellant has established any arguable case of error in the Decision. As the Deputy President’s reasons for decision disclose, he decided the matter in accordance with the requirements of s.394(3) and applicable Full Bench statements of principle. The findings which the Deputy President made concerning the reason for the delay, which appears to be the main issue agitated in the appeal, were reasonably available to be made on the material before him. Further, they are findings with which we agree. Likewise, the Deputy President’s overall conclusion that no exceptional circumstances had been demonstrated was one which was reasonably available.” 3

[13] Additionally, there was no requirement for Ms Jennings to wait for forms to be sent to her as the Fair Work Commission Rules 2013 (Cth) provide great flexibility to Applicants including the option of making applications by telephone in rule 9, as follows.

“9 Telephone applications

(1) This rule applies to a person wanting to:

(a) make an application under section 365 of the Act to the Commission; or

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.”

[14] In the circumstances of this case, there is no acceptable reason for the delay nor are the circumstances of delay exceptional.

When the Applicant became aware of the dismissal

[15] Ms Jennings became aware of her alleged dismissal on 12 December 2020, the same day it allegedly took effect.

Any action taken by the person to dispute the dismissal

[16] Ms Jennings did not take any other action to dispute her dismissal.

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

[17] I do not accept that there is any prejudice to the employer if a further period to apply is allowed.

The merits of the application

[18] The parties are at odds as to whether Ms Jennings was dismissed or effectively resigned by not returning to work. It is only after a hearing of a matter such as this that it would become clear what occurred and, if Ms Jennings was dismissed, whether there was unfairness within the meaning of the Act. Consequently, I view the merits of the application as a neutral factor in considering whether to extend time.

Fairness as between the person and other persons in a similar position

[19] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[20] The onus is on Ms Jennings as the Applicant to demonstrate to the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days.

[21] Having considered the information provided by the Applicant and the relevant factors above, I am not satisfied that this case involves exceptional circumstances.

[22] I am therefore not able to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[23] An order [PR727281] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 4 February 2021.

Printed by authority of the Commonwealth Government Printer

<PR727280>

 1   [2015] FWC 410.

 2 Ibid., at [9].

 3   [2015] FWCFB 391 at [10].