Ashlee Tozer v Walter John David Curtis
[2023] FWC 1442
•22 JUNE 2023
| [2023] FWC 1442 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashlee Tozer
v
Walter John David Curtis
(U2023/3821)
| DEPUTY PRESIDENT DEAN | CANBERRA, 22 JUNE 2023 |
Application for an unfair dismissal remedy – extension of time not granted – application dismissed.
This decision concerns an application by Ms Ashlee Tozer (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
The Applicant states in her application that she commenced work at a dairy farm in Stony Creek NSW owned by Mr Walter John David Curtis (Respondent) in January 2020 until her employment ceased on or about 14 October 2022.
Section 394(2) of the Act requires that an application for an unfair dismissal remedy is made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The present application, made on 4 May 2023, is some six months outside the 21-day period and and can only proceed if the Commission grants a further period for the application to be made.
The Respondent opposed the granting of an extension and argued that the Applicant was not dismissed but abandoned her employment.
The matter was listed for hearing by telephone on 21 June 2023 to determine whether to extend time for the application to proceed. The Applicant appeared and gave evidence on her own behalf. The Respondent was represented with permission by Mr David Griffiths of David Griffiths Legal.
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.[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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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 this 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.[3]
The Applicant explained that she resided at the farm with her then partner who is the Respondent’s son until she moved out in November 2022 after the relationship broke down.
The Applicant said that she started performing unpaid work at the farm in January 2021 and became remunerated from April 2021. She claimed that she suffered abuse from the Respondent and was underpaid. She ceased working for the Respondent on 14 October 2022.
The Applicant claimed that the reason for the delay was that she had been trying to resolve various matters with the Respondent on several occasions prior to the filing of the application. No details of any of these discussions were given by the Applicant.
In her oral evidence, the Applicant also said the delay was because of stress.
The Respondent submitted that the Applicant failed to establish any exceptional circumstances warranting an extension of time and her application therefore should be dismissed.
I find the Applicant did not provide a reasonable explanation for the delay in filing the application. It is not uncommon for a person to experience stress, shock or confusion when their employment is terminated. This does not generally provide an acceptable explanation for making an unfair dismissal application outside the 21-day statutory timeframe. Nor does her explanation that she was trying to resolve matters with the Respondent, particularly in light of her oral evidence that she did not have any direct communication with the Respondent after her employment ended.
The absence of an acceptable explanation weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant’s employment with the Respondent ceased on 14 October 2022 and had the full 21-day period to lodge her unfair dismissal application. She gave oral evidence that she was aware her employment had ended at or shortly after this date. This does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute her alleged dismissal until the present application was lodged. This does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer
There is no evidence of any prejudice to the Respondent if an extension of time were to be granted. However, 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. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Respondent submitted that the Applicant was not dismissed but abandoned her employment due to the breakdown of her relationship with the Respondent’s son. The Respondent asserted that the Applicant received wages above the award rate prescribed under the Pastoral Award and was not owed any entitlements.
The Applicant denied abandoning her employment and said her dismissal was “totally unfair”. Her submissions focused on allegations of underpayment of wages, however these matters are beyond the jurisdiction of the Commission and may be pursued independently of this application.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
Overall, 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
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral 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, 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.
DEPUTY PRESIDENT
Appearances:
A Tozer on her own behalf.
D Griffiths for Walter John David Curtis.
Hearing details:
2023.
By telephone:
June 21.
[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].
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