Christine Capponi v Enterprise Management Group Pty Ltd
[2023] FWC 2690
•16 OCTOBER 2023
| [2023] FWC 2690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Capponi
v
Enterprise Management Group Pty Ltd
(U2023/8341)
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 OCTOBER 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application dismissed.
Christine Capponi (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with Enterprise Management Group Pty Ltd (the Respondent).
The Applicant’s employment with the Respondent commenced on 27 June 2022. The Applicant states she was dismissed on 27 July 2023 and that her dismissal took effect on 3 August 2023.
The Applicant lodged her application on 2 September 2023, 9 days outside the statutory 21-day time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether the Applicant should be granted an extension of time to lodge her application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.
Directions were issued to determine this question and material was filed by each party. A hearing was held before me on 13 October 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The Applicant stated the following for the reasons for delay:
Whilst I am still not sure of the fact that this may be an unfair dismissal, more so of adverse action taken against myself, I can only personally attest that since learning of this redundancy, I have been left in a place of limbo and this has affected me both mentally and emotionally being unable to bring myself to sit in front of the computer to be able to lodge this matter.
It has only been in the last 2 weeks (approximately) that I have been able to motivate myself enough to be able to do this.
Although this reason may not be exceptional to any person other than myself, I am requesting that my application be reviewed again for consideration.
In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]
The Applicant was provided 2 occasions to substantiate her reasons of delay by my Chambers and did not take the opportunity to provide further evidence. During the hearing, the Applicant stated she was in shock and lacked motivation. The Applicant further stated she spent a lot of time in bed wondering where she went wrong.
The Applicant did not establish a reason for delay that was exceptional. Commissioner Bissett noted that it is not unusual for a person to suffer anxiety following a dismissal.[8] Similar to this, I note that it is not unusual to feel depression following a dismissal. Without any evidence to substantiate the impact of the depression, I do not find that there is a valid reason of delay.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant was informed of her redundancy on 27 July 2023 and that her employment would cease from this date. The Applicant was aware of her dismissal date.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take action to dispute the dismissal. The Applicant did return to However, this was to retrieve her belongings that needed to be sent back to Cairns.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under 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.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. I have provided an initial view on the matter.
The Applicant was working as a Regional Manager to manage a Community Development Program. The Applicant was working FIFO where she was required to work 2 weeks at the Western Cape, and 2 weeks from Cairns. The Respondent sought that FIFO was not a viable option considering that the position did not effectively build and maintain the community relationships for the local community, along with the additional costs required. The Respondent decided that the role would be required to operate in the Western Cape.
The Applicant would have difficulties establishing that there was an unfair dismissal considering the operational requirements of the Respondent, she was consulted about the redundancy, and was paid an additional week of redundancy to retrieve her belongings.
I consider this factor as a neutral consideration as it is only sufficient for the Commission to establish the substantive application was not without merit.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weigh strongly in favour of either party and consider it a neutral consideration.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I Order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.
[8] Gaelene v Marthakal Homeland Resource Centre Inc[2015] FWC 2880 at [15].
[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
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