Cindy Hyde v Pipeclay Ridge Pty Ltd as trustee for the Kee Family Trust trading as TG's Childcare

[2018] FWC 1754

[2018] FWC 1754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cindy Hyde
v
Pipeclay Ridge Pty Ltd as trustee for the Kee Family Trust trading as TG’s Childcare
(U2017/13743)

COMMISSIONER SAUNDERS NEWCASTLE, 23 MARCH 2018

Application for an unfair dismissal remedy– refusal of application to extend time – application dismissed

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Cindy Maree Hyde a further period for her unfair dismissal application (Application) to be made against Pipeclay Ridge Pty Ltd as trustee for the Kee Family Trust trading as TG’s Childcare (TG’s Childcare) in circumstances where:

(a) her alleged dismissal by TG’s Childcare took effect on 28 November 2017;

(b) the Application was made on 21 December 2017; and

(c) the 21 day period for the Application to be made expired on 19 December 2017.

The jurisdictional objection

[3] On 7 February 2018, a hearing was conducted in relation to Ms Hyde’s application for an extension of time.

[4] Ms Hyde tendered her statement, dated 19 January 2018, and her resignation letter, dated 28 November 2017, and gave oral evidence in support of her application.

[5] TG’s Childcare called one witness, Ms Gayle Kee, General Manager, and relied on Ms Kee’s affidavit, made on 2 February 2018.

Legislative scheme

[6] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

[9] These principles were recently reaffirmed by a Full Bench of the Commission in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters. 5 In this decision, the Full Bench rejected the finding at first instance that an applicant must provide a credible reason for the entire period that he or she was delayed in making an unfair dismissal application, explaining:

“…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 exceptional (original emphasis).” 6

[10] By itself, ignorance of the 21 day timeframe for making an application for unfair dismissal is not an exceptional circumstance. 7

Consideration

Paragraph 394(3)(a) - reason for the delay

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is an acceptable reason for the delay beyond the 21 day period and ultimately whether that reason constitutes, or weighs in favour of a finding of, exceptional circumstances. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:9

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[12] It is not in dispute that Ms Hyde’s employment relationship with TG’s Childcare came to an end on 28 November 2017.

[13] Ms Hyde contends that she was forced to resign from her position at TG’s Childcare during a meeting that took place between herself, Ms Kee and Ms Coryl Reis on 28 November 2017.

[14] During this meeting, Ms Hyde alleges that she was spoken to “abruptly and rudely”, felt “intimidated” and was informed that she would be demoted from her position of room leader, which she says left her with “no choice but to resign” from TG’s Childcare. Ms Hyde submits that she communicated her resignation to TG’s Childcare orally during the 28 November 2017 meeting and that she confirmed this oral resignation in her written letter of resignation provided to TG’s Childcare on 29 November 2017.

[15] TG’s Childcare denies that Ms Hyde was dismissed and submits that she voluntarily resigned from her position on 28 November 2017.

[16] On 21 December 2017, Ms Hyde lodged her Application with the Commission. The Application was made two days late.

[17] Ms Hyde relies on the following reasons for the delay in filing her Application:

(a) She was not initially aware of the 21 day timeframe for making an application for unfair dismissal. In her Application, Ms Hyde stated:

“I was not aware of my rights in such matters until a relative alerted and assisted me in relation to lodgement of this claim. Initially, I was also not aware of the 21 day notification period.”

(b) She did not receive a Fair Work Information Statement (FWIS)(see s.125 of the Act) from TG’s Childcare at her induction on 6 December 2016. Ms Hyde contends that if she had been supplied with this statement, “given that only 12 months has expired since then to the time of termination I believe I would have either remembered the requirement in question or at least referred back to the FWIS”.

[18] TG’s Childcare denies that Ms Hyde was not provided with a copy of the FWIS when she commenced employment on the basis that its practice is to include the FWIS in the employment pack given to each new employee and this is recorded on the induction checklist.

[19] Ms Hyde’s induction checklist dated 6 December 2016 was attached to both Ms Hyde’s statement, dated 19 January 2018, and Ms Kee’s affidavit, made on 2 February 2018. The induction checklist shows an unchecked box next to the requirement “Fair Work Information Statement read, signed and dated”, while showing checked boxes next to other requirements such as “Tax File Number Declaration Form completed and returned”.

[20] TG’s Childcare submits that if Ms Hyde did not receive the FWIS, she should have requested it from TG’s Childcare, as it appeared on the induction checklist, and at no point did Ms Hyde notify TG’s Childcare that she did not receive the FWIS.

Analysis of the chronology of events and reasons for delay

[21] In accordance with the principles summarised in paragraph [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 19 December to 21 December 2017. However, the circumstances from the time of the alleged dismissal (28 November 2017) must be considered in order to determine whether there was an acceptable reason for any part of the delay beyond the 21 day period.

[22] The reason for the delay in Ms Hyde filing her Application was a lack of knowledge on Ms Hyde’s part about the 21 day timeframe. This reason amounts to ignorance of the law. However, ignorance of the law is not an exceptional circumstance. This remains to be the case whether or not TG’s Childcare failed to provide Ms Hyde with a FWIS at her induction. 10 In considering that exact reason given by an applicant for a delay in lodging an application for unfair dismissal, a Full Bench of the Commission in Kylie Annear v Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre stated:

“We consider that we are entitled to take judicial notice of the fact that, in the age of the internet, even the most basic search will very quickly draw one’s attention to relevant information concerning unfair dismissal rights.” 11

[23] Like the applicant in that case, there is no evidence that Ms Hyde took any action, whatsoever, prior to the expiry of the 21 day time limit, to seek information about her right to apply for an unfair dismissal remedy. Any failure on the part of TG’s Childcare to provide Ms Hyde with an FWIS at her induction, although in contravention of s. 125 of the Act, would not have prevented Ms Hyde from finding easily accessible information concerning the 21 day time limit for commencing unfair dismissal proceedings.

[24] I find that Ms Hyde has not provided an acceptable reason for any part of her delay in filing her Application and this factor (s.394(3)(a)) weighs against granting the Ms Hyde an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[25] Ms Hyde alleges that she was forced to resign during a meeting with Ms Kee and Ries on 28 November 2017. It is agreed by both parties that this was the day upon which Ms Hyde’s employment relationship with TG’s Childcare ended. Ms Hyde had 21 days after 28 November 2017 to make her Application.

[26] This factor (s.394(3)(b)) weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[27] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 12

[28] There is no evidence that Ms Hyde took any step, whatsoever, prior to the expiry of the 21 day timeframe to dispute her alleged dismissal.

[29] Ms Hyde did not make contact with TG’s Childcare at any time after 29 November 2017, when she handed her letter of resignation to TG’s Childcare.

[30] This factor (s.394(3)(c)) weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[31] Prejudice to the employer will weigh against granting an extension of time. 13 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.14

[32] A long delay gives rise “to a general presumption of prejudice”. 15

[33] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 16 TG’s Childcare concedes that there was little or no prejudice caused by the delay.

[34] Noting that the delay was two days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[35] In Kornicki v Telstra-Network Technology Group 17the Commission considered the principles applicable to the extension of time discretion under the former section 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.” 18

[36] 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” 19 for the purpose of determining whether to grant an extension of time to the applicant to lodge her Application.

[37] I adopt this reasoning in relation to my consideration of the merits of the Application.

[38] Ms Hyde alleges that she was forced to resign on 28 November 2017 at a meeting that took place between herself, Ms Kee and Ms Reis. TG’s Childcare denies that Ms Hyde was dismissed and submits that she voluntarily resigned from her position on 28 November 2017.

[39] I am not able to make an assessment of the merits at this time because there are factual disputes between the parties concerning whether or not Ms Hyde was dismissed and whether any such dismissal was harsh, unjust or unreasonable; detailed evidence and cross examination of relevant witnesses would be required in order to make findings in relation to such disputes. I consider this criterion to be neutral.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[40] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[41] I am not satisfied that the issue of fairness as between Ms Hyde and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[42] Having taken into account the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are any exceptional circumstances warranting my consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Ms Hyde.

[43] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

G Morgan on behalf of C Hyde with C Hyde

L Dearlove on behalf of TG’s Childcare with G Kee of TG’s Childcare

Hearing details:

2018

Newcastle:

7 February.

<PR601465>

 1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4 [2011] 203 IR 1.

 5   [2018] FWCFB 901.

 6 Ibid at [38].

 7   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 8   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]

 9   [2016] FWCFB 349 at [31]

 10   Kylie Annear v Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre [2015] FWCFB 5263 at [20].

 11   Ibid.

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 13   Ibid.

 14   Ibid.

 15   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 16   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 17   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 18   Ibid.

 19   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 20   [2016] FWCFB 6963

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