Connie Kirk v The Shower Repair Centre Australia Pty Ltd T/A the Shower Repair Centre

[2019] FWC 215

[2019] FWC 215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Connie Kirk
v
The Shower Repair Centre Australia Pty Ltd T/A The Shower Repair Centre
(C2018/5482)

DEPUTY PRESIDENT BINET PERTH, 15 JANUARY 2019

Application to deal with contraventions involving dismissal – application lodged out of time – objection to application – extension of time granted.

[1] Ms Connie Kirk (Ms Kirk) has lodged an application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she was unlawfully dismissed by The Shower Repair Centre Australia Pty Ltd trading as The Shower Repair Centre (SRC).

[2] Subsection 366(1) of the FW Act provides that an application made pursuant to section 365 of the FW Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal. Subsection 366(2) provides that the Fair Work Commission (FWC) may allow a further period for lodgement in exceptional circumstances.

[3] The Form F8 Application was lodged out of time and Ms Kirk has sought an extension to the lodgement time limit. SRC have objected to the FWC granting such an extension. In light of this, the Application was listed for a hearing on 6 December 2018. Directions requiring the filing of materials were issued to the parties on 2 November 2018 (Directions).

[4] At the Hearing, Ms Kirk represented herself and gave evidence on her own behalf. She did not call any other witnesses. Ms Zena Norkett (Ms Norkett) the General Manager of SRC appeared on behalf of SRC and in addition to giving her own evidence also called the following witnesses to give evidence on behalf of SRC:

a. Mr Andrew Benefield – Management Consultant (Mr Benefield)

b. Ms Kere-Anne Zahn – Marketing/Administration Manager (Ms Zahn)

c. Mr Fernando Montanelli – Accountant (Mr Montanelli)

Facts

[5] Ms Kirk commenced employment with SRC on 12 March 2018. 1

[6] On 17 August 2018, Ms Kirk was issued with a written warning following an earlier meeting at which Ms Norkett raised concerns about Ms Kirk’s timeliness, her interactions with other staff and the presence of her son in the workplace. 2 An unsigned copy of the warning was tendered as an attachment to Ms Norkett’s witness statement.3

[7] On 23 August 2018, Ms Kirk raised various complaints about her treatment by Ms Norkett with Mr Benefield who was an external advisor to the business. 4

[8] On 24 August 2018, Ms Kirk was directed to attend a meeting with Ms Norkett and Mr Benefield. Ms Kirk asserts that the discussion centred on resolving the issues between herself and Ms Norkett which Ms Kirk had articulated to Mr Benefield. Ms Norkett however characterised the conversation as a performance management meeting to address concerns about Ms Kirk’s performance. 5

[9] On 29 August 2018, Ms Kirk says that she raised further concerns with Ms Norkett that Ms Norkett was adversely impacting on Ms Kirk’s ability to discharge her responsibilities. 6

[10] On 31 August 2018, Ms Norkett circulated a 10 point action plan as a meeting outcome. The action plan included KPIs for Ms Kirk which were to be met by the end of September 2018. 7

[11] On 5 September 2018, Ms Kirk says that Ms Norkett approached her to discuss her school holiday plans in light of some surgery that Ms Norkett had planned at the end of September. Ms Kirk alleges that in the course of the conversation, Ms Norkett praised her management of the telephone system. Ms Kirk says that she took the opportunity to express to Ms Norkett her concern about the sudden termination of a staff member and its impact on other employees. 8

[12] On 6 September 2018, Ms Kirk was directed to attend another meeting with Ms Norkett and Mr Benefield. At that meeting Ms Norkett informed Ms Kirk that her employment was terminated and that she would be provided with one week’s pay in lieu of notice. 9

[13] Ms Kirk asserts that she was not provided with notice of the meeting, did not have the opportunity to have a support person present, was not given an opportunity to respond to any reason for her dismissal, and that, in any event, no valid reason existed for her dismissal. She took the view that because of these matters and that no written of notice of dismissal was provided to her, that her purported dismissal was ineffective and that her contract of employment remained on foot. 10

[14] Between 6 September 2018 and 19 September 2018, Ms Kirk endeavoured to contact Ms Norkett and Mr Collins (Managing Director of SRC) to discuss the status of her employment. 11 During this period Ms Kirk also obtained legal advice in relation to the status of her employment. The legal advice stated that her purported dismissal was ineffective until notice of termination of employment was provided to her in writing:12

“4. Technically, your employment has not terminated given you were not provided written notice of termination. You have some ongoing entitlements as a result.

5. An unfair dismissal claim, or a general protections claim, needs to be commenced within 21 days from the date of a dismissal, which will be when a notice of terminated is received. Those claims are brought in the Fair Work Commission.”

[15] On 19 September 2018, Ms Kirk received an email from Ms Norkett confirming in writing the termination of Ms Kirk’s employment effective 6 September 2018. 13

[16] On 20 September 2018, Ms Kirk informed Ms Norkett that she contested the validity of the termination notice and that if Ms Norkett continued to refuse to enter into discussions regarding her employment status she would commence legal action. 14

[17] On 25 September 2018, Ms Kirk received a copy of her notice of termination in the mail. 15

[18] Ms Kirk says that between 19 September 2018 and 27 September 2018, she endeavoured to obtain legal advice as to whether she should lodge an application for a remedy for unfair dismissal or an application for unlawful dismissal. Ms Kirk’s financial circumstances limited her choice of legal providers. According to Ms Kirk, the Community Legal Services she approached were unable to assist within the legislative time frames for filing her application and she was unable to locate a fee-for-service firm which she could afford. Eventually, with the legislative time limit looming, Ms Kirk decided to lodge an application for unlawful dismissal herself without legal assistance. 16

[19] Ms Kirk says that between 8:00pm and 11:30pm on Thursday 27 September 2018, she endeavoured to upload her Form F8 and her supporting documentation however she was unable to upload her application for a fee waiver. She says that after several unsuccessful attempts she abandoned the application for a fee waiver and transferred money between accounts in order for her to be able to lodge her application and pay the relevant fee. 17

[20] At 11:32pm on 27 September 2018, Ms Kirk successfully electronically filed various documents in support of her application with the FWC. In reply she received an automatically generated email stating that: 18

“The Fair Work Commission received your application on 27/9/2018 at 11:32 PM AEST. Your payment receipt is: 380919.

This email is not acknowledgement that your application is taken to have been properly lodged with the Fair Work Commission. In line with the Fair Work Commission Rules 2013, you will receive separate confirmation that your application is taken to have been lodged, at which time your application will be allocated a matter number.”

[21] Ms Kirk says that unbeknownst to her, the Form F8 did not upload with the other documentation, however the fee for the application was deducted from her account and the payment was acknowledged by the FWC. 19

[22] At 4:24pm on Friday 28 September 2018, a staff member of the FWC’s Sydney Registry informed Ms Kirk by email that because the documentation received by the FWC on 27 September 2018 was not accompanied by a Form F8 that she was not taken to have made a valid application in accordance with the FW Act. The email attached a copy of the relevant form and urged her to lodge it promptly because of the time frames which apply to the lodgement of unlawful dismissal applications. 20

[23] Ms Kirk replied to the email at 6:02pm on the same day explaining that she had experienced difficulties submitting the application form because she had sought a waiver of the relevant application fee and that she had been forced to pay the fee and resubmit her application. She asserted that when she resubmitted her documentation she also included the Form F8. 21

[24] At 8:20pm, Ms Kirk endeavoured to resubmit her application and her accompanying documentation. Due no doubt to the large volume of supporting material she was endeavouring to file, Ms Kirk again experienced difficulty in filing her materials electronically. Eventually, she zipped the files and in a series of six emails sent progressively between 9:29pm and 10:00pm on Friday 28 September 2018, she managed to transmit the six zipped files which included a Form F8. 22

Relevant Statutory Provisions

[25] Section 366 of the FW Act provides:

“366  Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[26] Ms Kirk submits that her dismissal did not take effect until it was communicated to her in writing in accordance with section 117 of the FW Act. In fact this was the legal advice which she received. However, this is contrary to established authority. As was stated by the Full Bench in Metropolitan Fire and Emergency Services Board v Garth Duggan: 23

“[33] … a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship.”

[27] The trigger for the commencement of the time limit in section 366(1)(a) of the FW Act is the date “… the dismissal took effect”. Section 366(1)(a) makes no reference to section 117 of the FW Act nor does it make reference to a requirement that notice of the dismissal be given in writing. It is long established that for the purposes of applications for extension of time before the FWC, and its previous incarnations, that dismissal can be communicated orally and takes effect from the time which is communicated. See for example Plaksa v Rail Corporation NSW 24which concerned an extension of time to file an application for a remedy for relief from unfair dismissal under the Workplace Relations Act 1996 (Cth), the precursor to the FW Act.

[28] Ms Kirk has not identified any authority to the contrary.

[29] If Ms Kirk’s dismissal took effect at the meeting on 6 September 2018, then her application should have been made no later than 27 September 2018. While the FWC received various materials in support of her application on 27 September 2018 and receipted her payment of the application fee, there is no record that it received a Form F8 until 8:20pm AEST on Friday 28 September 2019.

[30] Rule 8(2) of the Fair Work Commission Rules 2013 (Cth) (FWC Rules) relevantly provides that:

“(2) If the President approves a form for a particular purpose, then subject to these Rules, the approved form must be used for the purpose.”

[31] Schedule 1 of the FWC Rules provides that the approved form for an application pursuant to section 365 of the FW Act is a Form F8.

[32] If the Application was made outside of the 21 day time limit, it can only be pursued if this time limit is extended.

[33] Section 366(2) of the FW Act provides that the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five nominated criteria. The principles are well established and set out in Nulty v Blue Star Group. 25In that matter the Full Bench held the following in relation to "exceptional circumstances":

“[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.”

[34] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. 26 The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.27 Having taken into account the factors set out in section 366(2) ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.28

Consideration

s.366(2)(a) – The reason for the delay

[35] The onus is on Ms Kirk to provide a credible reason for the whole of the period that the Application was delayed. 29

[36] While the delay to be considered is the period subsequent to the expiration of the 21 day period the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 30

[37] The absence of any explanation for any part of the delay will usually weigh against an applicant and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour. 31

[38] Ms Kirk acknowledges that she was aware of the 21 day time limit and that depending on the date her dismissal took effect she potentially left filing the Application until the last day of that period. She explained that she did so because she believed that her dismissal could not take effect until it was communicated to her in writing and she had received legal advice to this effect. The legal advice in question sets out the instructions on which it was based. It does not appear that those instructions were so incomplete or faulty such that they could not be relied upon by Ms Kirk as providing a reason for the delay as was the case of the instructions provided by the applicant in Plaksa v Rail Corporation NSW 32relied on by SRC in its outline of submissions.

[39] Having received written notice of her dismissal on 19 September 2018, Ms Kirk endeavoured to obtain legal advice as to whether she should lodge an application for a remedy for unfair dismissal or an application for unlawful dismissal. Unable to find assistance in time which she could afford with the legislative time limit looming she lodged an application for unlawful dismissal herself without legal assistance.

[40] Given the nature of the documents which were received by the FWC and the payment of the application fee by Ms Kirk within the legislated timeframe, there is no doubt that Ms Kirk intended and endeavoured to make the Application within the legislative timeframe. The sheer volume of materials she eventually lodged explains why she had difficulty in electronically filing the Application and had to eventually do so in separate zipped folders.

[41] Given the number of attachments Ms Kirk was endeavouring to lodge, it is unsurprising that the Form F8 was overlooked if Ms Kirk had to upload her supporting documentation a second time when her attempted application for a fee waiver was unsuccessful.

[42] Within hours of the FWC alerting her to the absence of her Form F8 among the copious materials she lodged, Ms Kirk filed the Form F8 and refiled all her supporting documentation. 33

[43] I am satisfied that in the circumstances, Ms Kirk has provided a satisfactory explanation for a 20 hour and 20 minute delay in filing her Form F8. I am also satisfied that she has provided a satisfactory explanation for leaving the preparation and the filing of the Application until the last day of the filing period.

[44] In the circumstances, I am persuaded there is an acceptable explanation for the delay and this factor weighs in favour of granting Ms Kirk a further period to make her application.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[45] Action taken by an applicant to contest the termination, other than by virtue of the application will be relevant and may weight in favour of granting the extension of time. 34

[46] According to Ms Norkett’s own evidence at the meeting held on 6 September 2018 Ms Kirk stated:

“You terminated Lochie and Liz unlawfully. You have undermined me and not allowed me to lead. I am going to take this further as a matter of principle.” 35

[47] In her email of 20 September 2018, Ms Kirk informed Ms Norkett that she contested the validity of the termination notice and that if Ms Norkett continued to refuse to enter into discussions regarding her employment, Ms Kirk would commence legal action. This was one of a number of emails that Ms Kirk sent to SRC contesting the circumstances of her dismissal.

[48] In the circumstances, it is difficult to understand how the application could have come as some surprise to SRC. Ms Kirk made it abundantly clear on multiple occasions that she believed she had been treated unfairly and unlawfully and that she intended to contest her treatment.

[49] In the circumstances, Ms Kirk’s action taken to dispute her dismissal weighs in favour of granting Ms Kirk a further period to make her application.

s.366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[50] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 36

[51] The Application was received by the FWC in full within 22 hours of the expiration of the 21 day time period. SRC received correspondence from the FWC in relation to the Application at the time it would have received the correspondence if the Application had been made in time.

[52] The only prejudice to SRC which SRC have identified is the time and cost incurred in objecting to the granting of an extension of time. Given that the delay in filing would not have otherwise affected the normal timeline for the progress of the application, the progress of the application and the costs associated with the jurisdictional objection have been incurred as a consequence of SRC’s decision to object to the granting of an extension of time to Ms Kirk to lodge the Application. I note that SRC declined the opportunity to participate in conciliation which might have avoided the costs in the preparation for and attendance at the jurisdictional objection hearing. 37

[53] In the absence of any evidence of prejudice to SRC, this factor weighs in favour of granting Ms Kirk a further period to make her application.

s.366(2)(d) – The merits of the application

[54] In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice. 38

[55] Ms Kirk alleges that she was unlawfully dismissed as a consequence of her making complaints about the manner of her treatment. SRC deny this and say that Ms Kirk was lawfully dismissed for performance-related matters. 39 The factual matrix is contested by the parties. Ms Zahn and Ms Norkett provided details of Ms Kirk’s alleged poor performance in their witness statements.40 Ms Kirk asserted that she was not dismissed because of her performance but rather because of the various complaints she made. To resolve this contest would require the parties to largely present their evidentiary case in relation to the merits of the Application in advance of a merit hearing. While Ms Kirk filed voluminous materials, there is insufficient material before me to determine the contested factual matrix in order to make an assessment of the merits of the Application.

[56] In light of this, I will treat this factor as neutral.

s.366(2)(e) – Fairness as between the person and other persons in a like position

[57] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of this kind however cases of these kind quite often turn on their own facts.  41

[58] SRC submit that it would be unfair to grant Ms Kirk an extension of time to make her application because an extension has not been granted in other cases of a short delay such C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149. 42

[59] There are however other cases analogous to Ms Kirk’s in which the FWC has granted an extension of time in circumstances where a short delay has occurred due to the Applicant experiencing technical difficulties filing their application online. 43

[60] In light of these cases I am satisfied that this factor weighs in favour of granting Ms Kirk a further period to make her application.

Conclusion

[61] Ms Kirk has provided an explanation for the approximately 20 hour delay in the filing of the Application and for the period prior to that. On balance, I am of the view that the combination of circumstances that Ms Kirk faced when viewed together were out of the ordinary, albeit not unprecedented.

[62] Having considered each of the factors set out in section 366, I am satisfied that there are exceptional circumstances warranting Ms Kirk being granted an extension of time to lodge her application and I shall exercise my discretion to grant her an extension of time to lodge her application until 28 September 2018.

[63] The Application will be progressed by way of a conference at a time and date to be advised.

DEPUTY PRESIDENT

Appearances:

C Kirk, Applicant.

Z Norkett, for the Respondent.

Hearing details:

2018.

Perth.

6 December.

Final written submissions:

Applicant, 23 November 2018.

Respondent, 16 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR703843>

 1 Exhibit A1 at [4].

 2   Exhibit R2 at [6]–[7].

 3   Ibid at Attachment B.

 4   Exhibit A2 at [5]–[6].

 5   Ibid at [8]–[9].

 6 Ibid at [17].

 7 Exhibit R2 at Attachment C; Exhibit A2 at [10].

 8 Exhibit A2 at [19].

 9 Ibid at [20]; Exhibit R2 at [13].

 10 Ibid at [21].

 11   Ibid at [23]–[24].

 12   Ibid at [25] and Attachment K.

 13 Ibid at [26]; Exhibit R2 at [15].

 14   Ibid [27]–[28] and Attachment H.

 15   Ibid at [31] and Attachment J.

 16   Ibid at [25], [29], [32].

 17 Ibid at [34].

 18   Ibid at [36]–[37] and Attachments L and M.

 19 Ibid at [37].

 20   Ibid at [37]–[38] and Attachment N.

 21 Ibid at [38].

 22   Ibid.

 23   [2017] FWCFB 4878.

 24   [2007] AIRC 333.

 25 (2011) 203 IR 1.

 26   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [38].

 27   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [16].

 28   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].

 29   Emma Dawson v Virgin Australia Airlines Ply Ltd [2017] FWC 3890 at [25]–[26].

 30   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].

 31   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [39].

 32   [2007] AIRC 333 at [13].

 33   Exhibit A2 at [38] and Attachment N.

 34   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

 35 Exhibit R2 at [13].

 36   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

 37 Exhibit R1 at [30].

 38   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].

 39   Exhibit R1 at [33]–[41].

 40   Exhibit R2; Exhibit R4.

 41   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

 42 Exhibit R1 at [51].

 43   Sergey Volchkov v Scantek Pty Ltd T/A Scantek Solutions[2018] FWC 4710; Ian Jacks v Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd[2018] FWC 7741.