Bruna Lu Ferraz v Joe's Burger Trust

[2020] FWC 4902

[2020] FWC 4902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Bruna Lu Ferraz
v
Joe’s Burger Trust
(C2020/5265)

DEPUTY PRESIDENT MANSINI MELBOURNE, 11 SEPTEMBER 2020

Application to deal with contraventions involving dismissal filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Bruna Lu Ferraz (Applicant) for the Commission to deal with a general protections dispute involving dismissal from her employment with Joe’s Burger Trust (Respondent), made under s 365 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was filed, the Applicant has not attended Commission proceedings 1 or complied with the Commission’s directions of 25 August 2020 to file materials in relation to the jurisdiction of the Commission. The Respondent was invited, but not required, to participate in the proceedings. The Commission did not receive any adjournment requests in relation to the directions or the hearing. Both parties were on notice that any failure to comply or attend would result in the Commission proceeding to determine the matter on the materials before it and without hearing further from them. Accordingly, I have determined this matter on the basis of the original application being the only materials before the Commission at the time of the hearing.

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). The application states that the Applicant’s dismissal took effect on 26 May 2020. This application was not lodged until 6 July 2020. The period of 21 days ended at midnight on 16 June 2020 and the application was lodged 20 days out of time.

[4] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s 366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s 366(2) of the Act.

[5] The exceptional circumstances test establishes a high hurdle for an applicant. 2 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 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 can be considered exceptional.4

[6] My consideration of the matters set out at s 366(2) follows.

Reason for the delay

[7] 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” or “credible” explanation. 5 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.6 Ultimately, it is a question of degree and insight.7

[8] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 8

[9] In the application, the Applicant provided reasons for the delay in lodging the application. The Applicant cited several bodies from which she obtained advice about her options. She said that the delay was in part due to the difficulties in accessing her university’s legal aid service due to the restrictions arising from the global pandemic (COVID-19). The Applicant said she was also experiencing a lot of physical stress after her dismissal, due to an injury alleged to have been sustained at work. The Applicant did not specify the times, dates or periods of delay which were affected by the circumstances which she submitted were the cause of the delay. Notwithstanding the opportunity to do so, the Applicant provided no evidence or further information to the Commission in support of these reasons.

[10] In the circumstances of this case and the evidence before the Commission, I am not satisfied that there is a reasonable, acceptable or credible explanation for the delay. By her own admission, the Applicant was able to and did conduct research and contact suitable bodies in order to understand her option to bring this general protections claim. She simply did not do so until after the statutory timeframe. In any event, mere ignorance is not an acceptable reason for delay. On the materials before the Commission, there is no basis to conclude that the circumstances of the COVID-19 restrictions are an acceptable explanation for the delay in this case.

[11] The absence of an acceptable or reasonable explanation for the delay weights against a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[12] There is nothing before the Commission to suggest that the Applicant took any action to dispute the dismissal prior to lodging this application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[13] I cannot identify any prejudice that would accrue to the company 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. I consider this a neutral consideration in the circumstances.

Merits of the application

[14] The Act requires me to take into account the merits of the application in considering whether to extend time. The application includes an outline of the Applicant’s contentions which appear to amount to at least an arguable case. However, on her own materials, the Applicant acknowledges that the Respondent gave reasons for dismissal which related to performance.

[15] In the absence of anything more, or indeed any participation from the parties, 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

[16] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[17] I consider this to be a neutral consideration in the present matter.

Conclusion

[18] Having regard to the matters I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no reasonable or acceptable explanation for delay which weighs against the grant of an extension in this case and all other factors are at best considered neutral. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[19] I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s application under s 365 of the Act is dismissed.

DEPUTY PRESIDENT

Hearing details:

2020
Melbourne (by Telephone)
11 September 2020.

Printed by authority of the Commonwealth Government Printer

<PR722730>

 1   The Applicant and Respondent did not attend the Hearing listed for 11 September 2020. As such, the Hearing did not proceed.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975at[12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 4   Ibid.

 5   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 6 Stogiannidis at [39].

 7   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 8   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-]33];Perry at [23].