Annette Rehutai v
[2022] FWC 2879
•31 October 2022
| [2022] FWC 2879 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Annette Rehutai
v
Corumbene Care
(U2022/9676)
| COMMISSIONER JOHNS | MELBOURNE, 31 October 2022 |
Application for an unfair dismissal remedy - whether to extend time for lodging the application.
Introduction
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is about whether the Commission should allow Annette Rehutai (Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 30 September 2022, that being 39 days after her employment was terminated by Corumbene Care (Respondent) on 22 August 2022 and, consequently, 18 days after the 21 day time limit provided for in the FW Act.
The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
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’. Briefly, exceptional circumstances are 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.[3] 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.[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.
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.
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 the Application.
Reason for the delay
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.[5]
The Applicant submitted that the reason for the delay in lodging her application was because she was sick with influenza for 2 weeks and was bedridden for most of that time. The Applicant stated she was unable to obtain a medical certificate as her “doctor’s surgery had closed down due to a shortage of doctors”.
The Applicant presented as a truthful person. Likely she was ill in the period immediately following the termination of her employment. However, that is not a sufficiently exceptional circumstance. I am sympathetic to the Applicant feeling unwell. However, when the 21 time limit is ticking away, it was incumbent on the Applicant to take some steps to file an application within the time limit. She did not.
This factor weighs against granting the Applicant a further period to make his application.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of her dismissal by letter of termination from the Respondent dated 17 August 2022. The Applicant received the letter of termination on 22 August 2022, the day that the dismissal took effect. The Applicant had the full period of 21 days to lodge the unfair dismissal application.
This factor weighs against an extension of time being provided.
Action taken to dispute the dismissal
On the date of her dismissal the Applicant wrote a letter to her direct manager attempting to resign from her employment. On 24 August 2022 the Applicant forwarded the same letter to the Chief Executive Officer of the Respondent. This was not an act disputing the dismissal.
This factor weighs against granting an extension of time.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here.
In the matter of Kornicki v Telstra-Network Technology Group[6] the 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 Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.”[7]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
In the present matter there is a factual contest about whether there was a valid reason for the dismissal associated with the Applicant’s preparedness to wear personal protective equipment as a health care worker. I am not in a position to decide this matter. However, I would have to assess that the Applicant’s case is not entirely without merit.
I consider this matter to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This is not a relevant consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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, the application for an unfair dismissal remedy must be dismissed.
An order to this effect [PR747501] has been issued with this decision.
COMMISSIONER
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[7] Ibid.
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