Christine Stevens v Morris & Sons

[2014] FWC 8242

[2014] FWC 8242

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Stevens
v
Morris & Sons
(U2014/11862)

DEPUTY PRESIDENT GOSTENCNIK DARWIN, 24 NOVEMBER 2014

Application for relief from unfair dismissal; application to be allowed a further period within which to make application under s. 394; not satisfied existence of exceptional circumstances; extension of time refused; application dismissed.

Introduction

[1] Ms Christine Stevens (Applicant) commenced employment with Morris & Sons Melbourne Pty Ltd (Respondent) as a casual employee in or about July 2012. The Respondent carries on a business selling knitting, crochet, needlecraft and embroidery related goods. The Applicant was employed in the Respondent’s Melbourne store. The Applicant’s last shift with the Respondent was 26 July 2014 and her employment with the Respondent was terminated with effect on that day.

[2] The Applicant applied for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). The application was lodged on 20 August 2014. The application, which should have been lodged by no later than 18 August 2014 (taking into account that the last day on which the application could have been lodged within time was a Saturday), was made outside of the time prescribed by s. 394 (2) of the Act and the Applicant seeks to be allowed a further period within which to make her application.

[3] I heard the application for an extension of time on 18 November 2014 and concluded that I was not satisfied that there were exceptional circumstances warranting consideration of whether to allow a further period within which the Applicant could make her application. Consequently I dismissed the applicant’s unfair dismissal remedy application. These are my reasons for doing so.

Relevant factual background and context

[4] The Applicant was first advised on 5 July 2014 of the real possibility that her casual employment with the Respondent would not continue beyond the end of July 2014 because of the engagement of a new manager and the redeployment of full-time staff to cover shifts undertaken by the Applicant. The advice was set out in an email from Ms Judith Mitchell of the Respondent to the Applicant, which relevantly advised the Applicant as follows:

“Yes, we are hiring a new manager and I am taking on full-time design. That’s what was confirmed in actioned last week . . . Glen will be working more days and we will have four full-time staff members so there won’t be any casual hours available after the end of July, which is when the new manager starts.”

[5] It is not in dispute that on attending for work on 26 July 2014, the Applicant learned that she was no longer on the roster for shifts or that since that date the Applicant has not been allocated any further shifts by the Respondent. In its response to the unfair dismissal remedy application filed by the Applicant, the Respondent alleged that it had not dismissed the Applicant. It seems to me clear however that when account is taken of the email correspondence of 5 July 2014 combined with the fact that since 26 July 2014 the Applicant has not been given any shifts on which to perform work viewed against the backdrop of regular and systematic work of a casual nature performed by the Applicant for the respondent since July 2012, that the Applicant was dismissed from her employment by the Respondent. In the circumstances I find that the Applicant was dismissed by the Respondent with effect on 26 July 2014.

[6] The Applicant says that apart from the email from Ms Mitchell on 5 July 2014, she has not received any explanation for her dismissal, nor was she given an opportunity to respond to any reason for the dismissal and she has not received written notice of the dismissal. The Respondent says that the reasons for the discontinuation of shifts were explained to the Applicant by Ms Mitchell following the email of 5 July 2014. The Applicant disputed this and the Respondent was unable to provide any evidence to support its assertion. Ms Mitchell was not in attendance at the hearing nor was any statement by Ms Mitchell filed by the Respondent despite directions made by me requiring the filing of witness statements on which the Respondent intended to rely in opposition to the application for an extension of time. For present purposes I am satisfied that apart from the email of 5 July 2014, the Respondent has not explained or provided to the Applicant its reasons for dismissing her from casual employment.

[7] The Applicant says that following the of termination of her employment by the Respondent she made enquiries with the Commission, with Job Watch and with Legal Aid about her rights to bring an unfair dismissal remedy application. She says that she was encouraged to do so. She says that shortly after her dismissal by the Respondent she received a notice to vacate her residential rental property. She says that the dismissal brought about a level of stress and that notice to vacate exacerbated the stress and distress that she was experiencing. This was not seriously disputed by the Respondent and I accept at a general level that this was so, however there is no medical or other probative evidence offered which might suggest that the Applicant’s cognitive functioning was impaired so as to affect her capacity to function by reason of the stress or distress. Much less is there medical evidence which might explain that the failure or inability to make the unfair dismissal remedy application within the time prescribed is caused by that impairment.

[8] The Applicant says that she was in the process of completing an unfair dismissal remedy application on Friday 15 August 2014 but that she had missed the post and ultimately posted her application to the Commission on Monday, 18 August 2014 which was thereafter delivered to the Commission on 20 August 2014. I would note firstly that the application is signed and dated 14 August 2014, which was a Thursday, as is the detailed document attached to the application, which sets out the basis upon which the Applicant alleges that her dismissal was unfair. But putting that discrepancy to one side, the Applicant was asked during the hearing whether she had attempted to lodge the application by electronic means.

[9] The Applicant said that her computer was not functioning at that point and so could not lodge the application by electronic means. I find this explanation difficult to accept. Firstly no mention is made of this fact in the materials filed by the Applicant in accordance with the directions made by me as forming any part of the explanation for the delay. Secondly, apart from the assertion no other evidence is offered to support the assertion. Thirdly, a reasonable person wishing to lodge electronically would look to other means of achieving that aim, for example by attending a public library to use its computer system or by seeking assistance from a friend or relative who might be able to provide access to their computer. Fourthly, the computer malfunction explanation if accepted would require an acceptance that the computer fault persisted from 14 August to 18 August inclusive, without rectification. No evidence is offered to support the computer malfunction explanation, much less of its duration. Finally, the computer fault explanation was not offered at the hearing as a principal reason for the delay but given in response to a question by posed by me and in the circumstances it simply does not ring true. I do not accept it as plausible.

[10] The Applicant accepted that after 26 July 2014 she did not take any step to dispute her dismissal with her employer. The Applicant said that on 26 July 2014 she had “challenged” Ms Mitchell about other staff having been allocated shifts and that Ms Mitchell had responded with words to the following effect: “Well, you were told that you were no longer going to have any shifts and that was the way the Management wanted it”.

Consideration

[11] Before turning to the substance of the application to allow a further period, I will briefly discuss the principles that are to be applied in determining whether to exercise discretion to extend time in which an unfair dismissal remedy application may be made. As I have indicated earlier the Applicant’s dismissal took effect on the 26 July 2014. Her application to the Commission for a remedy should have been made within 21 days of the dismissal taking effect, namely by 18 August 2014. The application was made on 20 August 2014 and was therefore 2 days outside the prescribed time.

[12] As is evident from s.394 of the Act the Commission may allow a further period within which an application may be made, but the exercise of the discretion to allow a further period will only be considered if I am first satisfied that there are exceptional circumstances taking into account the matters set out in s. 394(3). They are:

• the reason for the delay;



• whether the Applicant became aware of the dismissal after it took effect;



• any action taken by the Applicant to dispute her dismissal;



• prejudice to the Respondent including prejudice that is caused by the delay;



• the merits of the Application; and



• fairness as between the Applicant and other persons in a similar position.

[13] It is clear from the structure of s. 394(3) of the Act that each of the matters must be taken into account when assessing whether there are exceptional circumstances. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances do not have to be unique or unprecedented or even very rare. However before considering whether to exercise the discretion to extend at all it must first be established to the satisfaction of the Commission, taking into account the matters in s. 394(3), that there are exceptional circumstances.

Reason for delay

[14] Turning then to the matters in s. 394(3) of the Act.

[15] First, to the reason for the delay. There must be an acceptable explanation for the delay. The Applicant needs to provide credible reasons or a credible reason explaining the whole of the period of the delay. The Applicant gives as an explanation for the delay in making her unfair dismissal remedy application, her stress and distress caused by a combination of the dismissal and the notice to vacate her residential property. She says that this resulted in the application being lodged in the Commission two days outside of the time prescribed because she was overwhelmed with the loss of her job and her home in the same period.

[16] As indicated above, the Applicant offers no medical evidence to support her contention that she was suffering any particular level of distress or of the cause or causes of that distress. Even if I accept that the Applicant experienced those conditions it does not follow that the conditions affected her cognitive functioning and coping mechanisms significantly so as to explain the delay in making of this application or that this contributed to the delay. No medical evidence is offered about the effect of any distress on her cognitive functioning during the 21 days period following her dismissal. Moreover, it seems to me on the evidence that the Applicant had completed an application form on 14 August 2014 and did not post it until 18 August 2014. She took no other step to ensure that her application would be received by the Commission within the time prescribed. For the reasons given earlier above I do not accept the computer malfunction explanation and in any event other steps could have been taken such as accessing another computer or attending the Commission’s premises and lodging the application in person on 15 August or 18 August to ensure that the application was lodged within time.

[17] On the evidence I am not satisfied that the Applicant has provided an acceptable explanation for the whole of the period of the delay. The reasons proffered by the Applicant for the delay are not particularly unusual, as it is accepted that many employees whose employment is terminated experience some form of shock or distress. Moreover, that the exigencies of life sometimes impact upon one’s capacity to attend to certain matters is also not particularly unusual. In the circumstances the absence of an acceptable explanation for the delay this weighs against the Applicant.

Awareness of the date the dismissal took effect

[18] It is clear on the evidence that Applicant became aware of that her employment as a casual employee would come to an end by the end of July 2014 before the employment ended. This is clear from the email that the Applicant received on 5 July 2014. On 26 July 2014 it was clear that the Applicant would no longer be provided with casual shifts that her employment as a casual would end with effect on that day. This was consistent with the earlier email advice and the conversation between the Applicant and Ms Mitchell on 26 July 2014.

[19] I am satisfied on the evidence that the Applicant was clear on 26 July 2014 that her employment has ended. Consequently the Applicant had the full 21 day period within which to make an unfair dismissal remedy application. Indeed having regard to the time reckoning provisions of the Acts Interpretation Act 1901 because the last date for making the application fell on Saturday, 16 August 2014 the Applicant had until the next business day being 18 August 2014 by which to lodge a valid application. In effect the Applicant had 23 calendar days within which to lodge the application. In the circumstances, that the Applicant was aware of her dismissal from at least on the date on which it took effect, weighs against Ms Stevens.

Any action taken by the Applicant to dispute the dismissal

[20] Apart from the conversation with Ms Mitchell on 26 July 2014,the Applicant accepts that she did not take any step to dispute the dismissal with the Respondent other than by making this application. Accordingly the absence of any step taken to dispute her dismissal other than by making this application is a factor that weighs against the Applicant.

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

[21] The Respondent accepted, and I am satisfied that it would not suffer any prejudice by reason of the delay or otherwise, other than the usual prejudice of defending an unfair dismissal remedy application. However the absence of prejudice does not in and of itself give rise to exceptional circumstances. In the present case I am prepared to weigh the absence of prejudice slightly in favour of the Applicant.

The merits of the application

[22] As I have indicated earlier in these reasons, the Applicant says that her dismissal from employment with the Respondent was an unfair principally because she was not provided with an explanation for her dismissal or why she was chosen for dismissal and not other casual employees. The Applicant says that there is no reason related to her conduct or performance which would have warranted the dismissal. The Respondent disputes this and says that the circumstances of the reduction of casual work were explained to the Applicant and that she understood the reasons.

[23] It is usually not practical in proceedings of this kind, to conduct a full evidentiary hearing to determine merit. Indeed s. 396 requires the question whether an application was made within the period required in s. 394(2) to be decided before consideration of the merits of the application.

[24] Neither party led any substantive evidence going to the merits of the case. However I am satisfied, based on the limited material, and accepting that factual assertions about merit have not been tested by way of cross examination, that the application is not without merit. In the circumstances I assess this as weighing in favour of the Applicant.

Fairness as between the person and other persons in a like position

[25] Neither party advanced any argument to address this consideration. Cases of this kind will generally turn on their own facts. In circumstances where an applicant relies upon distress as a reason for delay, evidence of the effect of the distress on the applicant’s cognitive functioning will usually be required. Moreover evidence beyond mere assertion as to the casual connection between the state of affairs and the failure to act within the prescribed period will also usually be required.

[26] Cases where the impairment of an applicant’s cognitive functioning have been accepted as providing an acceptable explanation for delay have been founded on such medical evidence. This is not the case in relation to the Applicant’s explanation. As I indicated earlier the Applicant does not provide medical evidence, which would satisfy me that her cognitive functioning was impaired much less that it caused or contributed to the delay. The circumstances in this case are different to cases where such explanations have been offered. Ultimately this consideration in the context of this case is neutral.

Conclusion

[27] The statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application is an expression of the Parliament’s intention that rights must be exercised promptly so as to bring about certainty. Time limitations seek to balance a right to bring an action, against the desirability for prompt action and certainty. This is so that proceedings involving questions about actions that have been taken will be agitated within a particular period; otherwise that right of action is lost.

[28] A person seeking relief from unfair dismissal must make an application within 21 days after the dismissal takes effect. Only in exceptional circumstances will the Commission consider allowing a further period. Weighing all of the matters set out in s. 394(3), this is a case in which I am not satisfied that the Applicant has established that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which she may lodge an unfair dismissal remedy application.

[29] Although the Applicant’s case is not without merit, she has not established by evidence, an acceptable and credible reason for the delay. The Applicant did not take steps dispute the dismissal in the period before the dismissal took effect and she had the full 21 days within which to lodge the application. In the circumstances of this case, the merits factor that weighs in the Applicant’s favour and the absence of prejudice do not operate to outweigh the other matters identified above. Therefore I am not satisfied that in this case there are exceptional circumstances warranting the exercise my discretion to extend time.

[30] Consequently the application by the Applicant to lodge her unfair dismissal remedy application within a further period is refused. The application for an unfair dismissal remedy is therefore dismissed. An order giving effect to this decision has previously been issued in PR557888.

DEPUTY PRESIDENT

Appearances:

C. Stevens on her own behalf

A. Morris for Morris & Sons Melbourne Pty Ltd

Hearing details:

Melbourne.

2014.

18 November

Printed by authority of the Commonwealth Government Printer

<Price code C, PR557947>