Bronwyn Coulter v Fitness Cartel Kippa Ring
[2024] FWC 640
•13 MARCH 2024
| [2024] FWC 640 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bronwyn Coulter
v
Fitness Cartel Kippa Ring
(U2024/1605)
| DEPUTY PRESIDENT DEAN | CANBERRA, 13 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time.
Ms Bronwyn Coulter (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of her alleged unfair dismissal from Fitness Cartel Kippa Ring (Respondent).
The Respondent objected to the application, alleging that the Applicant was a contractor rather than an employee and that her application was made outside the statutory timeframe.
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Applicant says that her dismissal took effect on 13 January 2024 and her application was lodged on 14 February 2024, eleven days outside the 21-day period.
The Commission is required to deal with whether time should be extended before dealing with the other jurisdictional objections.
Noting there is a dispute about whether the Applicant was an employee or an independent contractor, which is not resolved now, this decision refers to the cessation of the Applicant’s work with the Respondent as a dismissal for convenience only.
The application was listed for hearing by telephone on 12 March 2024 to deal with whether time should be extended for the application to proceed. At the hearing, the Applicant was self-represented and the Respondent was represented by Ms T Swanson (Head of People and Culture).
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 the 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 was in Canada from around mid December as her mother was terminally ill, when she was dismissed by text message on 13 January 2024. Her mother passed away on 28 January and the funeral was 3 February 2024. The Applicant returned to Australia on 5 February 2024.
She said she tried to investigate how to lodge an unfair dismissal claim from Canada but it was difficult to contact anyone in Australia because of the time difference and because she was in hospital with her mother.
Having returned to Australia on 5 February 2024, she recommenced her job as a teacher on 7 February at a primary school and had to get her teaching organised and get her children back to school and into a routine.
She said that she then needed to ascertain whether she was ‘qualified’ to lodge an application as she was unclear if she was an employee or a contractor, which she commenced investigating on 12 February. It was only after receiving legal advice that she considered she was an employee and lodged her application on 14 February 2024.
She said it was not until she was completing her application that she became aware of the 21-day time limit.
I readily accept that the Applicant’s circumstances while she was in Canada provide an acceptable reason as to why she could not lodge her application within the statutory timeframe. However, I am not satisfied that there is an acceptable reason for the delay after her return to Australia. On her own evidence, she returned to her teaching role on 7 February and was able to prepare for her classes. Clearly, she prioritised her teaching work over pursuing an unfair dismissal application.
In terms of the Applicant being unaware of the statutory time frame, it has long been accepted that ignorance of the time frame is not a reasonable excuse that would warrant an extension of time.
There is no reason provided by the Applicant that adequately explains the delay in filing the application from the time of her return to Australia. The absence of an acceptable explanation for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of her dismissal on the day it took effect and therefore had the full 21-day period to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant says she sent an email to the Respondent shortly after 13 January asking the Respondent to reconsider her dismissal and stating that she considered it to be unfair. The Respondent disputed that such an email was sent. The Applicant did not put the email into evidence.
In the absence of the email, I consider this to be a neutral consideration.
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. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Applicant says she was dismissed because she made a bullying complaint about a manager of the Respondent.
The Respondent says the Applicant was an independent contractor, and it terminated the contract because of the length of time the Applicant had been unavailable to work. It says it was unaware as at 13 January 2024 of the Applicant’s circumstances as they related to her mother, understanding only that the Applicant was in Canada for Christmas holidays.
The contract was not put into evidence by either party.
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. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case 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
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 do not consider that there are any persons or cases 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.
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:
B Coulter, on her own behalf.
T Swanson for Fitness Cartel Kippa Ring.
Hearing details:
2024.
By telephone:
March 12.
[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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