Carmen Vassallo v Makshaq Pty Ltd

[2021] FWC 6418

[2021] FWC 6418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Carmen Vassallo
v
Makshaq Pty Ltd
(C2021/3978)

DEPUTY PRESIDENT CROSS SYDNEY, 23 NOVEMBER 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] Ms Carmen Vassallo (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she had been dismissed from her employment with Makshaq Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

[2] The Respondent has objected to the Application on the ground that the Application was filed out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

[3] Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[4] It is a matter of record that the Application was made on 11 July 2021.

When did the dismissal take effect?

[5] In the Application, the Applicant stated that she was never notified of her dismissal or paid employee entitlements, however she also stated that her dismissal took effect on 24 June 2020, when her employer stopped paying her. I note, however, that in further Submissions dated 9 November 2021, the Applicant submitted that the termination event occurred on 18^th June 2020.

[6] The Respondent claimed that the Applicant resigned by telephone on or around 28 May 2020.

[7] It is clear that some form of dismissal occurred around that time as the Applicant filed an Unfair Dismissal Application (the UD Application) on 30 June 2020 within the 21 day limitation period for such applications.

[8] I find, for the purposes of the decision, that the dismissal took effect at the latest on 24 June 2020.

Was the application made within 21 days after the dismissal took effect?

[9] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 1

[10] As I found above, the dismissal took effect on 24 June 2020. The final day of the 21 day period was therefore 15 July 2020, and ended at midnight on that day. The Application was made on 11 July 2021. The application was made 361 days late.

[11] Having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

[12] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.

[13] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 2 I set out my consideration of each matter below.

Reason for the delay

[14] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 July 2020. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[15] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4

[16] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay. 5

Submissions and evidence

[17] The Applicant submitted that the delay was for the following reasons:

(a) The Applicant noted that she originally filed the UD Application within 21 days of dismissal taking effect, as she alleged that she was owed backpay, superannuation and leave entitlements;

(b) The Applicant claimed she was coerced into withdrawing the UD Application upon the promise of being paid all outstanding employee entitlements and compensation, which did not occur. I note that in her submissions dated 21 October 2021, the Applicant alternatively claimed she was actually intimidated into withdrawing her UD Application by media reports of a “brutal bashing” taking place on the job site and alleged threats to kill her daughter and everyone in her family that were made in intercepted telephone calls;

(c) The Applicant experienced trauma as a result of her dismissal that resulted in her developing complex post traumatic stress disorder (PTSD) and dissociative amnesia that saw her put onto a mandatory treatment order that rendered her unable to take action;

(d) Further in relation to her medical condition, the Applicant submitted:

“However, I was not diagnosed with this until earlier this year. I did not file sooner because I still kept forgetting about what happened due to the amnesia.

…

On the day I was terminated I had seizures at 757 Toorak Road before the police arrived and I was eventually admitted to The Alfred Hospital that day.    In the weeks after this I spoke to Ray and on one occasion he was normal and another occasion I asked about Work Cover and Fair Work and he threatened me and this was around the same time as the bashing on his job site.  I spent months in a dissociative state and had seizures almost daily that were not being treated because whenever I was examined I would forget my collateral history.

The reason for not meeting the 21 day period is illness because I was incapacitated by psychiatric injury and being intimidated by threats made against my daughter by the Respondent.”

[18] In reply the Respondent simply “refuted” any claims that it was responsible for any medical conditions suffered by the Applicant.

Findings

[19] While the Applicant filed a letter from Dr Samir Ibrahim dated 9 May 2019, that related to her diagnosis as of that date, there was no medical evidence supporting the diagnosis of what the Applicant described as her “secondary psychiatric illness,” being Complex PTSD and Dissociative Amnesia.

[20] It is readily apparent, however, that the Applicant was not precluded from filing the UD Application within the 21 day limitation period.

[21] It is clear that the Applicant did not diligently pursue this Application. While mere ignorance of the statutory time limit is not an exceptional circumstance, 6 the Applicant was at least aware that the 21 day limitation period applied to unfair dismissal applications, and she made such an application within time.

[22] Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for at least the earlier part of the period of the delay, and that is a matter that weighs in favour of the Respondent in this matter.

What action was taken by the Applicant to dispute the dismissal?

[23] The Applicant did take action to dispute her dismissal prior to making the UD Application.

[24] This consideration, however, enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the making of the Application. While the Respondent was aware of the UD Application, that application was withdrawn, and the Respondent did not become aware of the prospect of a general protections claim until it received the Application. Nonetheless, I consider this factor is a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[25] The Applicant submitted:

“There is no prejudice to the Respondent in permitting the application for unlawful termination to be filed outside of the time frame because the Applicant is not seeking reinstatement but rather compensation for the unlawful termination which contributed to the Applicant developing a severely debilitating illness.”

[26] The Respondent made no submission as to prejudice, though after such a lengthy period of delay I consider it would be unremarkable that the Respondent could not be seen to suffer at least the prejudice of having to defend the Application, whether or not reinstatement was sought. Without more specificity, however, I am unable to accept that the Respondent will suffer actual prejudice. I consider that this is a neutral consideration.

What are the merits of the Application?

[27] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.

[28] Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).” 7

[29] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. I consider that this is a neutral consideration.

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

[30] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[31] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

[32] 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. 8 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.9

[33] It is clear that the factor that has been accorded significant weight in this matter is the absence of an acceptable reason for the delay, and that factor weighs in the Respondent’s favour.

[34] Having regard to all of the matters listed at s.366(2) of the Act, I am satisfied that there are not exceptional circumstances.

Conclusion

[35] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms C Vassallo, on her own behalf.
Mr J Nave, on behalf of the Respondent.

Hearing details:

2021.
November 17.
Sydney (via videoconference)

Printed by authority of the Commonwealth Government Printer

<PR736063>

 1   Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 3   Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

 6   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

 7   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

 8   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 9   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].