Briony Heany v Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate)

[2021] FWC 6482

[2021] FWC 6482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Briony Heany
v
Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate)
(U2021/71)

DEPUTY PRESIDENT DEAN CANBERRA, 16 DECEMBER 2021

Application for an unfair dismissal remedy

[1] This decision concerns an application by Ms Briony Heany (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant’s employment with Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate) (the Respondent) was terminated with effect from 14 December 2020. The Applicant lodged her application on 5 January 2021, one day outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 2 February 2021, a staff member of the Commission telephoned the Applicant to advise that the attachments to the application in zip files were unable to be opened. On the same day the Applicant was also sent an email confirming the request that she provide the attachments in a different format. Regrettably, this email correspondence was not copied to the Respondent.

[4] The Applicant did not resend the requested documents.

[5] No further action was taken in relation to this application until 15 October 2021 when an email was sent to the Applicant noting that the Commission had not received a response to the email of 2 February 2021 nor the attachments in an accessible format. The email stated that if no response was received from the Applicant within seven days the Commission’s file would be closed. This email correspondence was also not copied to the Respondent.

[6] On 16 October 2021, the Applicant responded by email advising that she would send the documents but it was not until 1 November 2021 when the Commission finally received the documents from the Applicant.

[7] On 2 November 2021, the Chambers of Vice President Catanzariti sent an email to both the Applicant and the Respondent. In that email the Applicant was advised that the application was filed one day late and that the time limit could only be extended if the Commission was satisfied under s 394(3) that there were exceptional circumstances. The email required the Applicant to respond in writing by 5.00pm on 5 November 2021 “explaining why you consider your circumstances are exceptional and provide any supporting evidence”. The email also required the Respondent a Form F3 Employer Response to Unfair Dismissal Application to be completed and returned “as soon as possible, to set out the respondent’s position on this application”.

[8] On 5 November, the Applicant wrote to the Chambers of the Vice President indicating that she was “a little bit confused about if my application was past the 21^st day or not”. The Applicant further stated that during the time the application was due she was heavily distressed by instances of domestic violence and provided a letter from the Cumberland Women’s Domestic Violence Court Advocacy Service and an email correspondence from a Constable of Auburn Police in support of her claim.

[9] The Commission’s file indicates that between February and October 2021 there had been no communication to or from the Applicant. It is not in dispute that the Respondent was not aware of the application made on 5 January 2021 until the email of 5 November 2021.

[10] On 8 November 2021, the matter was allocated to me to determine whether the Applicant should be allowed a further period for the application to be made under s.394(3). A hearing for that purpose was conducted by telephone on 16 December 2021. At the hearing the Applicant was self-represented and the Respondent was represented by Mr Chilcott.

[11] Part way through the hearing, and following an exchange between Mr Chilcott and me, Mr Chilcott advised that the Respondent neither objected nor consented to the granting of an extension of time.

[12] 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

[13] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[14] 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.

[15] 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

[16] 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

[17] The Applicant’s reason for the delay in lodging the application is that she was experiencing significant domestic violence prior to and after her dismissal by her ex-partner. She gave evidence, which is not set out here, as to the violence she was experiencing. She also provided a copy of her admission to hospital as a result of her injuries, the Apprehended Domestic Violence Orders that applied to her ex-partner, and a letter of support from the Cumberland Women’s Domestic Violence Court Advocacy Services outlining the extensive domestic violence she had been subject to.

[18] In these circumstances, I am satisfied and find that the Applicant has made out an acceptable and credible explanation for the delay in lodging her unfair dismissal application.

Whether the person first became aware of the dismissal after it had taken effect

[19] The Applicant was notified by letter of 14 December 2021 that her employment was terminated from that date. There is no dispute that the Applicant received this letter. I am therefore satisfied that the Applicant had the full 21-day period to lodge her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[20] The Applicant did not take any action to dispute her dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[21] 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

[22] 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.

[23] There was minimal evidence or submissions as to the merits of the application. In the absence of tested evidence it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[24] 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.

[25] 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

[26] 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 satisfied that there are exceptional circumstances. This is so because I am satisfied that the reason for the delay was out of the ordinary course and had the effect of preventing the Applicant from being able to lodge her application within the required timeframe. Because I am satisfied that there are exceptional circumstances, I grant an extension of time for the Applicant to pursue this application.

[27] Directions as to the future conduct of the proceedings will be issued in due course.

DEPUTY PRESIDENT

Appearances:

B Heany, on her own behalf.
M Chilcott of ACT Government Solicitor, for Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate).

Hearing details:

2021.
Canberra (By telephone):
December 16.

Printed by authority of the Commonwealth Government Printer

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 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].