April Rose Sia v Mirvac Real Estate Pty Ltd
[2023] FWC 800
•4 APRIL 2023
| [2023] FWC 800 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
April Rose Sia
v
Mirvac Real Estate Pty Ltd
(C2023/663)
| DEPUTY PRESIDENT DEAN | CANBERRA, 4 APRIL 2023 |
Application to deal with contraventions involving dismissal – application 43 days late – application dismissed.
On 8 February 2023, Ms April Rose Sia made an application under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her dismissal. In her application she named Mirvac Real Estate Pty Ltd (Mirvac) as the Respondent.
Ms Sia’s general protections application was made 43 days outside the 21 day period prescribed by the Act and can only proceed if the Commission allows a further period in accordance with s.366(2) of the Act.
In addition to the application being made outside the time period prescribed by the Act, Mirvac objected to the application on the basis it was not her employer. Ms Sia acknowledged that her employer was Gough Recruitment and not Mirvac. She commenced working at a Mirvac site on 17 October 2022 and her employment ceased on 6 December 2022.
The application was listed for hearing by telephone on 3 April 2023 to consider the extension of time issue. Ms Sia appeared and gave evidence on her own behalf. Mirvac was represented with permission by Ms Tarsha Gavin of Allens and called evidence from Ms Justine Cooper and Ms Sonia Mu.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with Ms Sia.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation 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 supports a finding that there are exceptional circumstances.[3]
On the evidence before me, I am not satisfied that Ms Sia has provided satisfactory explanation for her failure to file her application within the statutory time period.
Ms Sia’s reasons for the delay included that she was dismissed close to the Christmas holiday period on 6 December 2022, and was unable to access a lawyer to obtain advice during this period. Additionally, she said she was suffering from depression and was overwhelmed.
Ms Sia produced a letter from her treating psychologist dated 30 March 2023 which confirmed that she had been receiving “psychological support sessions” from 29 December 2022 to date. The letter said she had “experienced an adverse life event (termination of employment) which caused her mental ill health symptoms. These symptoms have affected April’s mental functioning and ability to perform activities of daily living”.
Ms Sia also provided an undated medical certificate, which she confirmed during the hearing she obtained prior to Christmas in December 2022.
The Respondent noted that her first session with the psychologist took place after the 21 day time period had already elapsed, and neither the letter from the psychologist or the medical certificate indicated that her mental health issues actually prevented her from filing her application within time.
Based on the medical evidence, I am not satisfied that Ms Sia was incapacitated to such an extent that she was unable to make her application within time.
Further, I am not satisfied that a dismissal that took place on 6 December 2022 was sufficiently close to Christmas such as to prevent her from obtaining legal advice, had she acted promptly.
These matters weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
Ms Sia did not point to any steps taken by her to contest her dismissal until the filing of this application.
Mirvac noted that as it was not her employer, it was not aware of any action taken by her to dispute her dismissal with Gough Recruitment.
This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
There is no evidence as to any prejudice to the employer if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time for Ms Sia to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]
Neither party made submissions on this criterion and I therefore find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Sia are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
A Sia on her own behalf.
T Gavin of Allens for Mirvac Real Estate Pty Ltd.
Hearing details:
2023.
By telephone:
April 3.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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