Cheraye Wilton v Security Perth Pty Ltd T/A Security Perth

[2015] FWC 5421

[2015] FWC 5421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Cheraye Wilton
v
Security Perth Pty Ltd T/A Security Perth
(U2015/5766)

COMMISSIONER WILSON MELBOURNE, 7 AUGUST 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application; application refused.

[1] This matter concerns an application made by Cheraye Wilton alleging unfair dismissal against her former employer, Security Perth Pty Ltd, trading as Security Perth. Ms Wilton’s application to the Fair Work Commission was received in the Fair Work Commission by email on 5 June 2015 at about 6:49 AM. The document itself is dated 4 June 2015. Ms Wilton’s application discloses that the date upon which her employment ended is 14 May 2015.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 1 day out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Ms Wilton for the making of her application, and for the reasons set out below, I am not satisfied that a further period should be allowed to her for the making of an application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that exceptional circumstances exist to warrant the late filing of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Security Perth, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted. Security Perth also argue that in any event Ms Wilton was not dismissed and that she resigned her employment voluntarily.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of;

• Ms Cheraye Wilton, the Applicant; and



• Mr Glenn Wilson, managing director, on behalf of the Respondent.

[7] The material before me discloses that the circumstances by which Ms Wilton’s employment ended with Security Perth include that the relationship between her and Mr Wilson had deteriorated in the period shortly prior to the date on which she left. The extent of the period over which this relationship deterioration occurred is imprecise within the evidence, however it appears to be within the last couple of months of Ms Wilton’s employment.

[8] Ms Wilton had been employed in a clerical capacity by Security Perth since 10 March 2014. At the time she left employment her work had included receiving and transferring phone calls and undertaking invoicing for the company. The business is a very small one, with Mr Wilson giving evidence that at the time Ms Wilton left employment, engaged in the business were he and his wife, two clerical assistants (one of whom was Ms Wilton) and a technician, engaged as an independent contractor.

[9] There was a conversation between Ms Wilton and Mr Wilson on 14 May 2015 that led to her departure from employment. What was said in conversation is the subject of widely departing evidence. It is not necessary in this matter, because of its overall circumstances, for me to resolve the conflict which exists on the evidence of the two witnesses.

[10] Ms Wilton says that immediately prior to the conversation, which took place at about 11 AM, Mr Wilson had asked her to speak with him. In the conversation he told her that he had to let her go and that this was because of the few things that she had let slide over the past few months. He asked her to write a resignation letter, which she did and presented to him and then afterwards left the business for good.

[11] Mr Wilson’s evidence is starkly different on the point of what he said to Ms Wilton and what she said to him.

[12] Mr Wilson’s version of the meeting is that Ms Wilton came into the office and told him that she was leaving; that she had got another job and she was not prepared to work for him for another day. After saying that, Ms Wilton provided him with a letter of resignation which is attached to the material filed in these proceedings by the Respondent. She then left the premises and did not work for the company again.

[13] In other evidence given by Ms Wilton, she indicated that she had commenced a new job on 26 May 2015 and that she had secured this before going on holidays. Her evidence is that while the new position is subject to a probation period, it is nonetheless an ongoing position and that the pay and hours are the same as she was receiving from Security Perth.

[14] For the purposes of s.396 of the Fair Work Act 2009, Ms Wilton is otherwise a person protected from unfair dismissal, however the Small Business Fair Dismissal Code may have application to her circumstances, for reason of Security Perth being a small business within the meaning of the Act.

EXTENSION OF TIME

[15] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3

[16] In considering whether an extension of time should be granted to Ms Wilton, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[17] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 4 An Applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[18] Ms Wilton recalls having considered making an unfair dismissal application fairly close to the time that she left employment with Security Perth. She looked at doing so the day following the last time she worked with the company. She undertook some research on her rights and what was involved in making an application. Ms Wilton’s evidence relating to the delay is that she was on holidays until shortly before 24 May 2015. When she returned from holiday she printed an unfair dismissal application and other material, but she did not complete the document. Her evidence is that she recalls having done so on about the Wednesday or Thursday after she returned from holiday.

[19] While not initially filling out the unfair dismissal application, she did so close to the last day on which an application could be made by her, that is 4 June 2015. At some point after 6 PM on that day she endeavoured to lodge the application through the Fair Work Commission e-filing system and struck difficulties in being able to do so. She did not specify what those difficulties were and did not provide any evidence that would substantiate she was having such difficulties.

[20] Having had difficulties in lodging the application on the night of 4 June 2015, she tried again the following morning on 5 June 2015 and was successful in doing so. An automatic acknowledgment of the lodgement was recorded, at the earliest at 8:36 AM, which I take to be a reference to Australian Eastern Standard Time, with an email proceeding within the Fair Work Commission system to its Perth registry at 6:49 AM, which I take to be a reference to Australian Western Standard Time.

[21] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Wilton to lodge her application. In all, that period was a total of 1 day.

[22] I find that Ms Wilton’s explanation about the difficulty she faced in making a successful e-filing on the night of 4 June 2015 as being her explanation for their delay in making an application to the Commission.

[23] Because there was not detailed evidence provided to the Commission about the nature of the problem experienced by Ms Wilton, the time that it occurred, or any action that she may have taken to safeguard her circumstances, I do not consider her to have put forward an acceptable reason for the delay experienced in making an unfair dismissal application.

[24] The evidence demonstrates that Ms Wilton was aware of the time limit and that she had chosen not to make an application to the Commission prior to that time, instead choosing to make the application very close to the deadline. It could be expected that an applicant faced with this circumstance and an e-filing difficulty would either keep a record of the problems they had experienced or alternatively be able to demonstrate to the Commission the alternative action they may have taken to successfully lodge the application. Failing that, an applicant could be expected to have drawn to the Commission’s attention that a problem was experienced on the same day as it occurred, perhaps with an email to the Registry on 4 June.

[25] Accordingly, this criterion does not resolve in the Applicant’s favour in my consideration of whether an extension of time for filing should be granted.

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

[26] On the basis of the evidence before me, and without endeavouring to resolve whether the end of her employment came about as result of a termination at the initiative of the employer or as a resignation, I am satisfied that Ms Wilton first became aware of the end of her employment on 14 May 2015. This is therefore not a circumstance where Ms Wilton only became aware of her termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[27] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 7

[28] Ms Wilton's evidence about actions taken by her to dispute the end of her employment are only that she undertook some research about her circumstances prior to going on holiday and that after returning from holiday she endeavoured to make an unfair dismissal application. Other than this action, I am satisfied that Ms Wilton took no substantive action to dispute her dismissal until the making of her application to the Fair Work Commission on 5 June 2015.

[29] There is no evidence that she sought advice, proximate to her dismissal, about her rights or the merits of her potential means of redress.

[30] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

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

[31] The delay in the filing of the application is 1 day. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[32] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 8

[33] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[34] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[35] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 9

[36] For Ms Wilton to succeed with her unfair dismissal application, she would firstly need to establish that there was no resignation on her part, and rather her departure was as a result of a termination at the initiative of the employer. On the basis of the evidence seen so far, a determination in either direction on this matter will only come about as a result of findings of credit about the evidence given by the respective parties, Ms Wilton and Mr Wilson.

[37] Having a finding of credit in her favour, and ultimately a finding of unfair dismissal, it would then be necessary for the Commission to turn its mind to the question of remedy.

[38] It is likely in this case that Ms Wilton would not press reinstatement and in any event the Commission would find reinstatement was inappropriate.

[39] In the case of Ms Wilton the assessment of compensation as a remedy would be at best problematic, with the likely finding that any compensation to be awarded to her would either be minuscule or zero. This is for the reason that the evidence is likely to demonstrate that after she left employment she took a period of leave that was always intended to be taken, and then returned from leave to take up another position that also appears to have already been in place for some time prior. In such a case, the best that Ms Wilton could hope for would be compensation of perhaps only a day or two’s wages.

[40] Because of the circumstances I have referred to above my assessment of this criterion resolves in favour of the Respondent.

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

[41] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 10 Because of the circumstances Ms Wilton experienced with the lodgement of her application, this is a criterion that might be expected to resolve in favour of the Applicant were she able to demonstrate through her evidence the difficulty she experienced and endeavours that she took to work around the problems. For the reason that such evidence is not before the Commission, I do not consider this criterion resolves in favour of the Applicant.

[42] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making her unfair dismissal application I am not satisfied there are exceptional circumstances that would warrant allowing a further period for Ms Wilton for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Ms Wilton’s case but also to the criteria set out within s.394(3) of the Act.

[43] For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order dismissing Ms Wilton’s application as being out of time.

COMMISSIONER

Appearances:

Ms C Wilton on her own behalf

Mr G Wilson for the Respondent

Hearing details:

2015:

Melbourne (video link to Perth).

27 July

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (2003), AIRCFB Print PR927201, at [16].

 9   Haining v Deputy President Drake (1998) 87 FCR 248, at 250

 10   Wilson v Woolworths [2010] FWA 2480

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