Applicant v Respondent

[2017] FWC 2722

[2017] FWC 2722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2017/1950)

COMMISSIONER SAUNDERS NEWCASTLE, 22 MAY 2017

Application for relief from unfair dismissal – refusal of application to extend time

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (the Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow the Applicant (the applicant) a further period for her unfair dismissal application (the Application) to be made against the Respondent (the respondent). Pursuant to s.593 of the Act, I have de-identified the parties to this application because I am concerned that disclosing the identity of the applicant would frustrate the administration of justice by unfairly damaging the applicant’s private interest in obtaining future employment.

The jurisdictional objection

[3] On 17 May 2017, a hearing was conducted in relation to the applicant’s application for an extension of time.

[4] The applicant tendered a number of documents and gave oral evidence in support of her application. The respondent made submissions, but did not call any witnesses or tender any documents.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

[8] Ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 5

Consideration

Paragraph 394(3)(a) - reason for the delay

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[10] There must be an acceptable reason for the delay in making the unfair dismissal application. 8

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 9

[12] 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 in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events

[13] On 11 January 2017, the applicant was provided with a referral by her general practitioner for a psychological review and assessment. The applicant attempted to make an appointment for such a review and assessment, but was informed that the initial consultation fee was $360 and the next available appointment was not until 28 March 2017.

[14] There is no dispute that the applicant’s employment with the respondent came to an end on 16 January 2017. The applicant contends that she was dismissed on that date, in that she was forced to resign because of conduct, or a course of conduct, engaged in by her employer (s.386(1)(b) of the Act). The respondent denies those allegations and contends that the applicant was not dismissed. The applicant accepts that she became aware of her dismissal on 16 January 2017.

[15] On 17 January 2017, the applicant made an on-line application to Centrelink for a Newstart allowance.

[16] On 18 January 2017, the applicant made an appointment with Legal Aid to obtain legal advice in relation to her alleged dismissal. The first appointment the applicant could obtain was on 1 February 2017.

[17] On 19 January 2017, the respondent sent the applicant an email in response to issues raised by the applicant on 16 January 2017 in relation to her superannuation entitlements.

[18] Shortly after the applicant’s alleged dismissal on 16 January 2017, the applicant researched the options available to her to contest her dismissal and became aware that she had 21 days from the date of her dismissal to lodge a claim.

[19] On about 25 January 2017, the applicant moved into a friend’s house, where she lived until about 21 February 2017.

[20] The applicant’s mobile phone was disconnected in about late January 2017 because she had not been able to pay her phone bill.

[21] In the period between about 25 and 28 January 2017, the applicant spoke to an administrative employee from a law firm known as CBD Law, who recommended that she speak to SafeWork NSW in relation to her claims of bullying against the respondent.

[22] The applicant tried without success to call SafeWork NSW on about 28 January 2017. On 30 January 2017, the applicant was sent an email from SafeWork NSW, attaching forms for her to complete in relation to her bullying allegations against the respondent.

[23] In late January 2017, the applicant had a telephone discussion with Mr Justin Yates, one of the directors of the respondent. In that telephone discussion the applicant asked Mr Justin Yates if he was involved in various matters and informed Mr Yates that she was unhappy with events leading to her dismissal.

[24] On 30 January 2017, the applicant mistakenly attended the offices of Legal Aid because she thought her appointment was on that date.

[25] On 1 February 2017, the applicant attended an appointment with a legal practitioner from Legal Aid. In that appointment the applicant obtained legal advice regarding her situation and options in relation to her dismissal on 16 January 2017. The legal practitioner from Legal Aid told the applicant she had 21 days from the date of her dismissal to file an unfair dismissal claim.

[26] In about early February 2017, the applicant calculated the long service leave payment to which she says she is entitled. The applicant did so by using a simple on-line long service leave payment calculator.

[27] In about early February 2017, the applicant ran out of internet data on her portable device she used in conjunction with her Macintosh computer, with the result that she could not access the internet. The applicant then borrowed money from her father to purchase data and was able to access the internet again from about 6 February 2017.

[28] In about early February 2017, the applicant’s mobile phone broke. She obtained a new mobile phone on about 8 February 2017.

[29] On 6 February 2017, the 21 day time period for the applicant to make her unfair dismissal application expired. 12

[30] On 7 February 2017, the applicant’s elderly grandparents were offered a place in an aged care facility. The applicant assisted her grandparents to pack up their house, put it on the market for sale, and move into the aged care facility on 17 February 2017.

[31] On 11 February 2017, the applicant opened and reviewed, for the first time, the email from SafeWork NSW sent to her on 30 January 2017. Later on 11 February 2017, the applicant completed and lodged (by email) with SafeWork NSW her written bullying complaint against the respondent. The applicant says she was sent the wrong forms by SafeWork NSW, but she included in the forms she submitted to SafeWork NSW some details in relation to her bullying allegations against the respondent. Apart from missing a call from SafeWork NSW when her mobile phone was out of action, the applicant says she has not had any contact with SafeWork NSW in relation to her bullying complaint.

[32] On 15 February 2017, the applicant sent an email to the respondent, responding to the respondent’s email of 19 January 2017 in relation to her alleged superannuation entitlements. In order to prepare and send that email, the applicant had to collate information and documents in relation to her alleged superannuation entitlements and calculate the amount of superannuation to which she claimed an entitlement.

[33] On 17 February 2017, the applicant saw her general practitioner in order to obtain a second referral for a psychological assessment, at which time the applicant was given a medical certificate stating she was unfit for “work/study” from 17 February 2017 to 10 March 2017. The applicant did not see her general practitioner between 11 January 2017 and 17 February 2017.

[34] On about 21 and 22 February 2017, the applicant completed her Application. She lodged it in the Commission on 23 February 2017. Given that the applicant lodged her Application in the Commission on 23 February 2017, the Application was made 17 days late. 13

[35] On 5 April 2017, the applicant was admitted as a patient to a Hunter New England Mental Health Unit for a period of about two days. In April 2017, the applicant’s medication for her mental health conditions was increased backed to a “full-strength” dose, having been halved in the period from November 2016 to April 2017.

Paragraph 394(3)(b) – reasons for the delay

[36] In accordance with the principles summarised in paragraphs [9] to [12] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 6 to 23 February 2017. However, the circumstances from the time of the dismissal (16 January 2017) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[37] In addition to the matters referred to in the chronology of relevant events summarised in paragraphs [13] to [35] above, the applicant relies on the following reasons for the delay in filing her Application:

(a) the applicant adduced medical evidence to support her contention, which I accept, that she has suffered from significant mental health conditions for a number of years as a result of traumatic events in her life. Those conditions include adjustment disorder, post-traumatic stress disorder, and depression. I also accept the applicant’s evidence that she was significantly incapacitated by reason of her mental health conditions for some of the days in the period between 16 January 2017 and 23 February 2017, with the result that the applicant was not capable of completing her Application during those times. However, the applicant also accepted that for other days during that time she was able to function and cope well. The applicant’s acceptance that she was able to function and cope well for part of that period is supported by her ability during that time to lodge an application with Centrelink for a Newstart allowance, organise and attend an appointment with Legal Aid, research her options in relation to her alleged dismissal including the existence of a 21 day time limit on applications, collate documents and information and calculate her alleged entitlement to superannuation, use a simple on-line calculator to calculate her alleged entitlement to long service leave, prepare and lodge a written bullying complaint to SafeWork NSW, assist her grandparents to pack up their house and move to an aged care facility, and ultimately prepare her Application on 21 and 22 February 2017;

(b) since the applicant was forced to move out of the home she shared with her children in February 2015, she has not had stable accommodation. The applicant has moved between the homes of both of her parents, the home of her partner’s parents, friends’ homes, sleeping in her car, and on the floor of her partner’s trade storage unit. However, as set out in paragraph [19] above, the applicant had relatively stable accommodation in her friend’s house from about 25 January 2017 until about 21 February 2017;

(c) the applicant’s poor financial situation following her alleged dismissal prevented her from getting some things done quickly. For example, the applicant did not have access to the internet or her phone during part of the period between 16 January 2017 and 23 February 2017;

(d) the applicant spent a significant amount of time in the period between 19 January 2017 and 15 February 2017 obtaining, collating and considering relevant documents and information in relation to her claim for unpaid superannuation contributions;

(e) the applicant’s personal belongings and household effects were in a storage unit from about February 2015 until about late January 2017. Because the applicant no longer had an income following the cessation of her employment with the respondent on 16 January 2017, she could not afford the storage rental fees. As a result, the applicant had to remove her personal belongings and household effects from the storage unit. The extreme heat and rain in January 2017 made the removal and redistribution of the applicant’s personal belongings and household effects very difficult and time consuming. Several nights in the second half of January 2017 the applicant was still loading boxes into a ute after midnight and the temperature was still above 30 degrees; and

(f) the applicant has three children. Although they do not reside with the applicant on a full-time basis, the applicant obviously cares deeply for them, spends time caring for them, and wants to spend more time with them.

[38] While I am sympathetic to the applicant’s circumstances, the matters the applicant relies on for the delay in filing her Application, as summarised in paragraphs [13] to [37] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon. Further, the applicant has not, in my view, provided an adequate explanation for the whole period of her delay in filing her Application. In particular, although the applicant was aware from her research of the 21 day time limit soon after her alleged dismissal and the legal advice she received on 1 February 2017 confirmed her research in that regard, she has not provided an adequate explanation as to why she was able to undertake the tasks referred to in paragraph [37(a)] above, but not file the Application within time. I find that this factor (s.394(3)(a)) weighs against granting the applicant an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[39] In accordance with my earlier finding, the applicant first became aware of the alleged dismissal on 16 January 2017. That was the day the dismissal took effect. The applicant had 21 days after the alleged dismissal on 16 January 2017 to make her Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[40] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 14

[41] On 16 January 2017, it would have been clear to the respondent from the discussions between the applicant and directors of the respondent on that day that the applicant was upset with what had happened in connection with the events leading up to the cessation of her employment with the respondent. Further, in her telephone discussion with Mr Justin Yates in late January 2017 the applicant asked Mr Yates if he was involved in various matters and informed Mr Yates that she was unhappy with events leading to her dismissal. This factor (s.394(3)(c)) weighs in favour of a finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[42] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[43] A long delay gives rise “to a general presumption of prejudice”. 17

[44] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18 No such evidence was adduced by the respondent in this case.

[45] Noting that the delay was 17 days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[46] In Kornicki v Telstra-Network Technology Group 19the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.” 20

[47] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 21 for the purpose of determining whether to grant an extension of time to the applicant to lodge her Application.

[48] I adopt this reasoning in relation to my consideration of the merits of the Application.

[49] The applicant contends that her resignation on 16 January 2017 was forced by the respondent’s conduct. The respondent denies that allegation. I am not able to make an assessment of either whether the applicant’s resignation was forced by conduct, or a course of conduct, engaged in by the respondent or the merits of any dismissal, because there are many factual disputes between the parties that have not been tested. Accordingly, I consider this criterion to be neutral.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[50] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 22 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[51] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[52] Having taken into account the matters referred to in paragraphs [13] to [51] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[53] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

The Applicant on her own behalf

McKenzie, R of Baker Love Lawyers for the Respondent

Hearing details:

2017

Newcastle

17 May

 1   Section 394(2)(a) of the 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) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 6   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 7   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 10   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]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 16 January 2017 (not including 16 January 2017) is 6 February 2017.

 13   That is, 23 February 2017 is 17 days after 6 February 2017.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Ibid.

 16   Ibid.

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 19   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 20   Ibid.

 21   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 22   [2016] FWCFB 6963

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