Burke v Techtronic Industries Australia Pty Ltd

[2016] FWC 7035

[2016] FWC 7035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kimberley Burke
v
Techtronic Industries Australia Pty Ltd
(C2016/4983)

DEPUTY PRESIDENT DEAN SYDNEY, 29 SEPTEMBER 2016

Application to deal with contraventions involving dismissal.

[1] Ms Kimberley Burke (the Applicant) was employed by Techtronic Industries Australia Pty Ltd (the Respondent) in the role of Executive Assistant/Office Manager. Her employment was terminated on 15 June 2016. She alleged that the termination of her employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations, and alleges that the Applicant’s employment was terminated as a result of issues relating to her performance and conduct. At the time of the dismissal, the Applicant was serving a probation period.

[2] Permission was granted for the Respondent to be legally represented. I accepted the Respondent’s submission that it would enable the matter to be dealt with more efficiently.

[3] Given the Applicant’s dismissal took effect on 25 July 2016, her general protections application lodged on 18 August 2016 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 (Nulty) 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.

[6] In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s.366(2) of the Act. 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.”

[7] I will deal with each of those matters separately.

Reason for the delay

[8] The Applicant submitted that the reason for the delay was a result of factors including:

a. the emotional shock from the unexpected dismissal;

b. that she had been ‘weighing up’ whether she should put herself through a ‘battle’ which would have an emotional impact, having been previously involved in litigation involving a family member for three years;

c. that she had been unwell due to severe respiratory issues and other flu-like symptoms from about 3 August 2016.

[9] The Applicant further submitted in her Outline of Argument, that ‘while this may not be deemed as exceptional circumstances, given the extreme nature of my physical illness, as well as the factors regarding my emotional state of mind and anxiety, I hope that FWC will accept these reasons and proceed with my application …’.

[10] In support of the health issue, the Applicant provided copies of three certificates, one from Electra Park Medical Centre certifying that the Applicant attended the clinic on 8 August 2016 with a respiratory tract infection, and the other two from her naturopath and acupuncture therapists both stating that the Applicant had received treatments on 10 August 2016. It was further submitted by the Applicant that she was housebound for the period that she was ill and had to cancel three job interviews.

[11] The Respondent submitted that the evidence of the Applicant regarding the reasons for the delay did not demonstrate exceptional circumstances. In summary, the Respondent submitted that:

a. the Applicant has not provided medical evidence to support her assertions.
b. it is not exceptional or uncommon that an employee would experience elevated emotions such as shock and hurt upon being dismissed 2.
c. notwithstanding the Applicant’s assertions as to incapacity due to illness, the Applicant attended to a number of matters in the period between her dismissal and the filing of the application, including attending job interviews.
d. the Applicant was aware of her rights to file a General Protections application but initially elected not to do so. This is not a case where an applicant is unaware of their rights or being mis-advised of their rights and the Respondent ‘should not be prejudiced by virtue of Ms Burke making an election not to comply with the statutory timeframe, simply because Ms Burke was uncertain as to whether she wanted to proceed with the Application.’
e. the Applicant’s allegations are vague, unfounded and self-serving and do not of themselves constitute ‘exceptional circumstances’.

[12] In considering whether the reason for the delay amounting to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 3. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application4. The 21 day period in this matter ended on 15 August.

[13] Whilst I accept the evidence that the Applicant sought medical treatments on 8 and 10 August 2016, there is no evidence that her condition which was of such impact that she was incapable of filing the application until 18 August 2016.

[14] Although I sympathise with the Applicant’s personal circumstances, the suffering of stress, emotional shock and confusion following the dismissal does not constitute exceptional circumstances.

[15] In addition, the evidence of the Applicant was that she was aware of the 21 day time limit but did not realise it was important. It is clear that she was aware of this timeframe.

[16] In the circumstances, I consider this factor weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[17] The Applicant sent a number of text messages and emails to the Respondent on 25 July 2016 following her dismissal. However, those communications only expressed her shock and anger towards the Respondent in the circumstances surrounding her dismissal and in my view did not qualify as action taken to dispute the dismissal. I consider the only action taken by the Applicant to dispute the dismissal was to lodge the general protections application.

[18] Accordingly, I consider that this weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[19] There was no evidence that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[20] In the matter of Kornicki v Telstra-Network Technology Group 5 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 6

[21] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 7

[22] The Applicant contended that the reason for her dismissal was that she sent an email to the management on 22 July seeking clarification of a newly implemented ‘No Smoking policy’. As such, adverse action (here, the dismissal) was taken against her by the Respondent for reason of her exercising the workplace right to seek clarification on a new workplace policy. She said that she was further reprimanded for requesting a copy of the Award which was not readily available to her. The Applicant also made references to a number of matters which she believed demonstrated that she was discriminated against due to her gender.

[23] The Respondent strongly denied any breaches of the general protections provisions of the Act. The Respondent contended that the issues relating to the Applicant’s performance and conduct warranted the decision of the Respondent to terminate the employment relationship prior to the expiry of the probation period. The Respondent further contended that the Applicant’s general protections application was without merit and was only lodged because she had not served the minimum employment period and was not eligible to bring an unfair dismissal application.

[24] On the material before me, I am unable to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

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

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 8 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.’9

[26] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[27] 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 the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

K Burke on her own behalf.

L Izzo for the Respondent.

Hearing details:

2016.

Melbourne and Canberra (by telephone):

September 23.

 1   [2011] FWAFB 975.

 2   Underwood v Terra Firma Pty Ltd, [2015] FWC 1387.

 3   [2010] FWAFB 7251.

 4   [2015] FWCFB 287.

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.

 7 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 8   [2015] FWC 8885.

 9 Ibid at [29].

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