Cindy Hameeteman v Summit Canteen Supply Pty. Ltd
[2024] FWC 586
•5 MARCH 2024
| [2024] FWC 586 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cindy Hameeteman
v
Summit Canteen Supply Pty. Ltd.
(U2024/939)
| COMMISSIONER CIRKOVIC | MELBOURNE, 5 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time
This decision concerns an application by Cindy Hameeteman (Applicant) for an unfair dismissal remedy (UD application) pursuant to s 394 of the Fair Work Act 2009 (Act).
The Applicant submits that her employment with Summit Canteen Supply Pty. Ltd. (Respondent) was terminated with effect from 13 December 2023. Section 394(2) of the 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 Fair Work Commission (Commission) allows pursuant to s 394(3).
It is not in dispute that the Applicant was terminated effective 13 December 2023. The UD application was lodged at 9.17pm on 29 January 2024. As the Applicant was terminated on 13 December 2023, the last day to lodge the application was 3 January 2024, and was therefore lodged 26 days out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which a UD 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 section 394(3) contrasts with the broad discretion conferred on the Commission under section 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. I now consider these matters in the context of the Application.
Reason for the delay
The delay required to be considered in section 394(3)(a) is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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 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 the applicant’s favour, however all of the circumstances must be considered.[5]
The Applicant proffers several reasons for the delay in filing her UD application, distilled as follows:
Her son had a motorcycle accident on 5 November 2023, and she was required to care for him from his discharge from surgery on 28 November 2023 until he was cleared to drive on 26 January 2024. This involved assisting him in making meals, showering, using the toilet, and driving him to medical appointments, including the surgeon and physiotherapist.
She was not aware she was required to lodge a UD application within 21 days of dismissal. At hearing, the Applicant submitted that even if she had been aware of the 21-day statutory time limit after her dismissal, she still “wouldn’t have had the time to submit it”.
She thought UD applications could only be submitted over the phone and unaware her UD application could be submitted online.
She did not think about taking any action until she had a conversation with her friend on or about 26 or 27 January 2024. On or about 26 or 27 January 2024, following a discussion with her friend about her longstanding employment, she decided to contact the Commission to canvas her options.
26 January 2024 was a public holiday and she made contact with the Commission by telephone on the next business day.
In support of her submissions, the Applicant tendered Certificates of Capacity for her son, Mr Lachlan Hameeteman, dated 5 November 2023 – 3 December 2023, 6 December 2023 – 8 January 2024, and 8 January 2024 – 5 February 2024, certified by Dr Mark O’Sullivan, Orthopaedic Surgeon. These certificates indicate that the Applicant’s son had no capacity for work, that he had a “right knee ACL rupture, and medial and lateral meniscus tears and left wrist fracture” from an injury obtained on 5 November 2023, and that he was “undergoing ACL reconstruction and meniscus repairs on the 28.11.2023. Six weeks in a Zimmer Splint. Wrist to be in plaster for six weeks”.
The Applicant additionally relied on a 6 December 2023 letter signed by Dr O’Sullivan, outlining that she required carer’s leave from 28 November 2023 to 3 December 2023 as her “son underwent and recovers from surgery”. The Applicant states that on 1 December 2023 she informed the Respondent she would “take the rest of the year off to care for my son as he was incapable of caring for himself”. The Applicant was terminated on 13 December 2023 by email.
Although there is some confusion in the Applicant’s oral evidence as to the date that she became aware of the 21-day time limit for the filing of her application, I accept the Applicant’s evidence that:
The Applicant was caring for her injured son from 28 November 2023. Her duties included making meals, assisting him in using the toilet and showering, and driving him to various medical appointments.
Her son’s medical condition had improved in the days prior to 26 January 2024 and the Applicant’s time started “freeing up a little bit”.
By 26 January 2024, her son was cleared to drive a vehicle, albeit with the use of crutches.
She did not think about taking any action until she had a conversation with her friend on or about 26 or 27 January 2024. On or about 26 or 27 January 2024, following a discussion with her friend about her longstanding employment, she decided to contact the Commission to canvas her options.
She contacted the Commission by telephone sometime after 26 January 2024 and prior to the filing of her UD application at 9.17pm on 29 January 2024.
26 January 2024 was a public holiday and the Commission was closed.
She thought UD applications could only be submitted over the phone and unaware her UD application could be submitted online.
Had she been aware of the 21-day time limit, she would not have had the time to make her application within the 21-day time limit.
I find the reason for the delay in filing her UD application was the Applicant’s caring duties for her son following his ACL reconstruction and meniscus repair surgery on 28 November 2023, and her becoming aware of her options on or about 26 or 27 January 2024, and her ignorance of the 21-day statutory time limit, and that she could submit her UD application online until she contacted the Commission by telephone on 29 January 2024.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her UD application.
I accept the Applicant’s evidence that she was both mentally and physically distressed taking care of her son following his motorcycle accident on 5 November 2023. Whilst I have sympathy for the Applicant’s position, I observe that there is insufficient material before me to conclude that the Applicant was unable to make enquiries as to her rights to take action prior to 26 January 2024. Further, it appears that until she spoke to her friend on or about 26 January 2024, the Applicant was not contemplating the making of an application, despite the fact that in the days prior to her son being cleared to drive, her time had freed up.
As to the Applicant’s contention that she was unaware of the 21-day time limit and that she could make her application online, ignorance of the time limit or a right to challenge a dismissal is not generally an acceptable explanation for a delay.[6] I also note that the procedure for lodging an unfair dismissal application is a process which involves completion of a very simple form in any one of a variety of very simple ways. The rules of the Commission allow an unfair dismissal application to be lodged in a number of different ways, including by email, and also by telephone.
I do not consider the matters relied on by the Applicant, individually or together, an acceptable or reasonable explanation for the delay in filing her application. 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
There is no contest that the Applicant became aware of her dismissal on 13 December 2023.
Having made a finding that the Applicant was notified of the dismissal on 13 December 2023 and that it took effect immediately, I find that the Applicant had the benefit of the full period of 21 days to lodge her application. This is a neutral consideration.
Action taken to dispute the dismissal.
Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[7]
It is not in dispute the only action the Applicant has taken to dispute her dismissal is the making of this UD application.
As the Applicant has not taken any action to dispute the dismissal other than lodging a UD application, in this matter I find this factor weighs slightly against exercising my discretion to allow the further period for the applicant to lodge her application.
Prejudice to the employer
Prejudice to the employer will go against a granting of an extension of time.[8]
The Applicant submits that no prejudice would be experienced by the Respondent if an extension of time was granted.
It is not disputed by the Respondent that there would be no prejudice if an extension of time were to be granted.
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application.
The Respondent submits the Applicant was dismissed for not being compliant with standards and because management was “not happy with the running of the canteens, stock control, and cleanliness”.
The Applicant submits that she was unfairly dismissed for taking leave to care for a family member.
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident 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. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
I am not aware of any persons or cases that are relevant 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
Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application, and there was no action taken to dispute the dismissal which weighs slightly against the granting of an extension of time. The remaining factors are neutral. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mrs C Hameeteman, the Applicant
Mrs S Wakefield, the Respondent.
Hearing details:
2024.
4 March.
By Telephone.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[8] Ibid.
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