Christine Egan v Colin Joss & Co Pty Ltd
[2022] FWC 3319
•16 DECEMBER 2022
| [2022] FWC 3319 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Egan
v
Colin Joss & Co Pty Ltd
(U2022/10072)
| COMMISSIONER P RYAN | SYDNEY, 16 DECEMBER 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. Application for an unfair dismissal remedy
Introduction
This is an edited version of my decision delivered ex tempore and recorded in transcript on 16 December 2022.
An application by Ms Christine Egan (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 15 October 2022 (Application).
In the Application, the Applicant states that her employment with Colin Joss & Co Pty Ltd (Respondent) was terminated with effect from 6 September 2022.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 27 September 2022. The Application was therefore filed 18 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3).
Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 3 November 2022 advising that the Application appeared to be out of time and inviting the Applicant to provide any preliminary submissions. On 9 November 2022, the Applicant filed a preliminary submission setting out the reasons for the delay in filing the Application.
Following the allocation of the matter to my chambers, and in accordance with directions issued by me, both parties filed further materials in support of, or in opposition to, the Applicant’s application for an extension of time.
For the reasons that follow, I decline to grant an extension of time under s.394(3).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[3]
I now consider these matters in the context of the Application.
Reason for the delay
The FW 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 or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[4]
The Applicant provided two reasons for the delay:
(i)Lack of knowledge of unfair dismissal laws; and
(ii)Awaiting the provision of medical evidence.
Lack of knowledge of unfair dismissal laws
The primary reason for the delay advanced by the Applicant was that she was unaware that she could make an unfair dismissal application. In response to question 1.6 of the Application, the Applicant stated:
I didn’t know about the affair [sic] dismissal; I was only told this was only told today when putting this form in, but I do have a lawyer onto it. I wasn’t sure if she was doing one for me. The employer took almost 2 weeks to give me the separation certificate, so I wasn’t sure what dates they put until they gave it to me, and when they finally gave it to me, it originally put it as I resigned, but they had to change it because they sacked me for medical reasons, and they had to amend it.[5]
In the proceedings before me, the Applicant gave evidence that she was not aware that she could make a claim for unfair dismissal until 15 October 2022, the same day she lodged the Application.
I do not accept this constitutes an acceptable or reasonable explanation for the delay for two reasons.
First, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6]
Second, a simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.
Awaiting the provision of medical evidence
The Applicant submitted that she delayed the filing of the Application because she was awaiting the provision of supporting medical evidence. In support of her application for an extension of time, the Applicant filed various medical reports and documents.[7]
I do not accept this constitutes an acceptable or reasonable explanation for the delay for the following reasons.
First, it is inconsistent with her explanation that she was unaware she could make an unfair dismissal application until 15 October 2022.
Second, amongst the medical documents there is a report from Dr Gareth Thomas dated 4 November 2022[8] and a medical consultation record dated 12 December 2022.[9] The remainder of the medical reports and documents pre-date the termination of the Applicant’s employment.
Third, there is no reason why the Applicant had to wait for the provision of any medical evidence or documentation in order to file the Application. Indeed, the Applicant filed the Application prior to receiving Dr Thomas’ report on 4 November and the consultation record on 12 December.
Other matters
It is necessary to deal with two other matters.
In the Application, the Applicant suggests the delay in filing the Application was attributed to a delay by the Respondent in providing an employment separation certificate and that she needed the employment separation certificate to confirm dates and the reason for her dismissal.
I do not accept this constitutes an acceptable or reasonable explanation for the delay for the following reasons. First, there is no reason why the Applicant had to wait for the provision of the employment separation certificate in order to file the Application. Second, the Applicant confirmed in her evidence that she was aware that her employment ended on 6 September 2022 and that the employment separation certificate was not requested for the purposes of filing the Application, rather it was requested in order seek social security benefits and to support a workers compensation matter.
The Application also refers to the Applicant’s lawyer and that she was not aware if the lawyer was preparing the Application for her. This suggests the Applicant may be relying on representative error. However, in the proceedings before me, the Applicant confirmed that she did not consult a lawyer with respect to this Application until 16 or 17 October 2022. Accordingly, there is no basis to support representative error as a reason for the delay.
Conclusion – Reason for the delay
Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal, aside from seeking an employment separation certificate, prior to making the Application on 15 October 2022. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Respondent submitted that the delay ‘somewhat hindered’ its capacity to respond and deal with the Application. Beyond that level of generalisation, the Respondent did not submit, and I cannot identify, any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I therefore consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to extend time.
Relevant to this consideration, the Respondent raised a further jurisdictional objection that the Applicant has not completed a period of employment of at least the minimum employment period. In support of this objection, the Respondent submitted that the Applicant was a casual employee and was not engaged on a regular and systematic basis and did not have a reasonable expectation of continuing employment on a regular and systematic basis.
The Applicant submitted that her work was regular and systematic.
It is clear to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Therefore, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3).
Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr M Mangano, for the Applicant.
Mr H Pararajasingham, of counsel for the Respondent, with permission.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
16 December.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Hearing Book at p.6
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[7] Exhibits A2, A4 and A5.
[8] Exhibit A2, Hearing book at p.20-21.
[9] Exhibit A4, Hearing book at p.114.
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