Chloe Bennett v Jazzport Holdings Pty Ltd
[2023] FWC 1665
•11 JULY 2023
| [2023] FWC 1665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chloe Bennett
v
Jazzport Holdings Pty Ltd
(C2023/2713)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 11 JULY 2023 |
Application to deal with contraventions involving dismissal
Issue and outcome
On 11 May 2023, Ms Chloe Bennett (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Jazzport Holdings Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.
It is uncontroversial that the Applicant’s dismissal took effect on 19 April 2023.
Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The parties filed bare responses, with little to no evidence addressing the factors in s 366(2)(a)-(e). This is despite the Applicant being provided an extension of time in which to file her materials, due to missing the filing deadline. In light of there being very little evidence, I decided it was appropriate to conduct a hearing. In the absence of witness statements and a paucity of evidential material before me, I allowed both parties to provide viva voce evidence.
The Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[3]
Background
From the materials provided, it appears that the Applicant was employed on 14 December 2022 to work as a childcare worker from Monday to Friday, with working hours of 9.30 AM to 2.30 PM.[4]
The Respondent states that from her commencement day up until 17 February 2023, the Applicant had taken 16 days of personal leave. Then the Applicant’s father purportedly became ill.[5] A discussion was held between the Respondent and the Applicant regarding the amount of personal leave she had utilised. It was agreed that the Applicant would work three days a week: Monday, Wednesday, and Friday. This new arrangement commenced on 20 February 2023.[6]
Unfortunately, the new arrangement did not curtail the personal leave utilised by the Applicant, and by her final day of presenting for work, she had taken 22 days of personal leave. The Respondent stated that as a small business that runs staff ratios in accordance with the children present in the centre, the Applicant could no longer be accommodated.[7]
The Applicant agreed that whilst working for the Respondent she suffered a range of illnesses and was required to have a lot of time off. The Applicant said she suffered financially and fell behind on her rent, which necessitated a strict rental payment plan with her real estate agent. The Applicant noted that before being dismissed she was hospitalised with a blood clot in her superficial vein which required her to be placed on strict bed rest. The Applicant holds the view that this resulted in her employment being terminated.
The Respondent submitted that whilst the Applicant had taken a substantial amount of personal leave, a ‘sick note’ was provided for only one period of that leave. The Applicant appears to have thought that she had provided two medical certificates during the period.
The Applicant submitted that on having been dismissed she was unable to meet her rental payment plan obligations, and not knowing if or when she could make any catch up payments, her children and her were evicted from their rental property and were temporarily homeless until she was able to secure accommodation in the rental crisis.
The Respondent noted on 28 April 2023 it heard from the Applicant, who had enquired as to the payment of her annual leave. Further communication concerned the return of uniforms, to which the Applicant confirmed she would drop them off the following week. However, that appears not to have eventuated.
Consideration
3.1 Extension of time
Consideration now turns to whether to extend the 21-day period within which the application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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 similar position.
It has been said that proceedings not commenced in time should not be entertained.[8] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[9]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[10] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order 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.[11] 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.[12]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[13]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.
3.2 Reason for the delay
In Pottenger v Department of Caffeine,[14] the Deputy President observed that 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,[15] or a reasonable explanation.[16]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[17] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[18]
The Applicant attributes the delay in making the application upon having been dismissed, which resulted in her being unable to comply with her strict rental payment plan and then being evicted from her home, and moving house. The Applicant noted she was in the middle of moving when required to file the application and her printer was packed.
Having considered the evidence before me, I am not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay.
The Applicant was provided with ample time to file evidential materials to support her case. On her non-compliance with the directions issued on 16 June 2023, a further period was provided for the Applicant to provide any evidence that she wished to rely upon in support of her argument for an extension of time. With the exception of an email in which the Applicant asserted certain points, no further evidence was provided to verify her account. Further, whilst the Applicant gave evidence of not having the means to submit her application, it appears from the oral testimony provided that she had email access and telephone access during the delay period. In my view, the Applicant did not take reasonable and timely steps to preserve her position in relation to the dismissal in the weeks that followed. This was despite access to a mobile phone including email access. I accept that sometimes online forms do not work on mobile phones. In such cases, the prudent course is to call the Commission during business hours and ask to make an application over the phone.
On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs toward a finding of there not being exceptional circumstances.
3.3 Action taken to dispute the dismissal
There is no evidence before me to suggest that the Applicant took action to dispute the dismissal. In the circumstances, I consider this factor weighs against a finding of exceptional circumstances.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
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.[20]
With regard to the Applicant’s substantive case, she relied upon a contravention of s 352 of the Act. However, that section provides protection in respect to an illness or injury of a kind prescribed by the regulations. The regulation in question is regulation 3.01 of the Fair Work Regulations 2009 (Cth). That regulation provides that a prescribed illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances. It is not apparent from the oral testimony given at hearing that such evidence would be forthcoming.
Nevertheless, evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[21] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. I therefore consider this factor neutral.
3.6 Fairness as between the applicant and other persons in a similar position
The parties did not draw my attention to 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. I consider this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. I do not consider it fair and equitable to extend the time in which the Applicant could make her application.
DEPUTY PRESIDENT
Appearances:
C Bennett, Applicant.
C Lee for the Respondent.
Hearing details:
2023.
Perth (by telephone):
4 July.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] PR764067.
[4] Form F8 – General protections application involving dismissal, [5.1].
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[9] Ibid [21].
[10] (2011) 203 IR 1, 6 [15].
[11] Ibid 5 [13].
[12] Ibid 5–6 [13].
[13] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[14] [2018] FWC 3403.
[15] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[16] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[17] Stogiannidis (n 13) 165 [39].
[18] Ibid.
[19] (1997) 140 IR 1.
[20] Ibid 11.
[21] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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