Courtney Cullity v Cronus Pty Ltd T/A Boydell's

[2021] FWC 4447

[2021] FWC 4447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Courtney Cullity
v
Cronus Pty Ltd T/A Boydell’s
(U2021/5691)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 JULY 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Ms Courtney Cullity (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant says that the termination of her employment with Cronus Pty Ltd T/A Boydell’s (Respondent) took effect on 8 June 2021. The unfair dismissal application was lodged at 12:25am on 30 June 2021.

[3] 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 29 June 2021. The application was therefore filed 1 day 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).

[4] The 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

[5] 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.

[6] 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.

[7] 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 will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 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

[9] 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

[10] The relevant sequence of events may be summarised as follows:

•  The Applicant says that her dismissal took effect on 8 June 2021.

•  The distress associated with the dismissal caused the Applicant to see her doctor, who decided that she was unfit for work duties from 3 to 11 June 2021. The distress also caused the Applicant to be unable to finalise two of her university courses.

•  On 25 June 2021, the Applicant sought pro bono legal advice from her local community law centre.

•  In the period from 25 to 29 June 2021, the Applicant went through the Commission’s unfair dismissal benchbook.

•  At about midday on 29 June 2021, the Applicant finalised her online unfair dismissal application and attempted to upload her application and supporting documents with the Commission. Technical problems meant that the Applicant was unable to lodge her online application and supporting documents. The Applicant then made multiple additional attempts to lodge her online application and supporting documents with the Commission prior to midnight on 29 June 2021. The Applicant did not succeed in any of those attempts. She is not sure whether the problem was with her internet connection or some other technical difficulty. The Applicant was not aware that she could have emailed her unfair dismissal application to the Commission or uploaded her online application without supporting documents to the Commission.

•  At 12:25am on 30 June 2021, the Applicant was finally able to upload her online unfair dismissal application and supporting documents to the Commission’s website. By that time, her application was 25 minutes outside the 21 day period provided for in the Act.

[11] The Applicant accepts that the sole reason for the delay in filing her application was the technical difficulties she encountered on 29 June 2021.

[12] Although I have sympathy for the Applicant’s personal 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 unfair dismissal application. The Applicant accepted in her evidence that technical internet related problems are not uncommon and in the past she has experienced such problems. It was therefore not out of the ordinary course or uncommon for the Applicant to have experienced technical problems when making multiple attempts to lodge her online application and supporting documents on the afternoon and evening of 29 June 2021. It was not reasonable for the Applicant to leave it until the afternoon and evening of the final day of a 21 day period to attempt to lodge her online unfair dismissal application with the Commission, particularly without having found out whether there was an alternative means by which she could have lodged her application if she encountered technical difficulties, such as emailing her application to the Commission, making her application by telephone to the Commission, or submitting her online application to the Commission without any supporting documents and providing the supporting documents at a later time.

[13] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 30 June 2021 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[14] The Applicant was aware of her dismissal on the day it took effect (8 June 2021). The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[15] The Applicant did not suggest that she took any action to dispute her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[16] 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

[17] 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 unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[18] The Applicant was dismissed for misconduct. The Respondent contends that the Applicant approached her manager to request if he could obtain illegal drugs on behalf of guests dining in the Respondent’s restaurant, the Applicant said to her manager that she had told the guests that one of them would “know someone”, and the Applicant informed the guests that her manager was a person who was willing and able to secure the illegal substances for them. The Applicant agrees that on a particular day two guests in the Respondent’s restaurant repeatedly asked her to help them procure illegal substances, but says the guests were difficult, demanding and intoxicated, with the result that she felt concerned for her safety. The Applicant says that she responded to the requests from the guests by saying that she did not know where they could buy the drugs they were seeking. The Applicant accepts that she said things like “I will ask my manager for you” as a way to defer the repeated requests by the guests. The Applicant contends that she told her manager about the requests and asked him to “just go and talk to the guests” because she felt uncomfortable at the repeated requests by the guests for assistance to procure drugs. The Applicant says that she felt threatened by the guests and was uncomfortable saying no or acting in a way that might offend them. In hindsight, the Applicant accepts that she could have handled the situation better by exercising her right to refuse service to the guests. The Applicant also makes the point that she only received the complaint about her alleged interaction with the guests and her manager ten days after the events took place. The Respondent did not accept the Applicant’s version of events and found that she had breached a number of contractual and other obligations owed by her.

[19] The second reason relied on by the Respondent to terminate the Applicant’s employment is its contention that, when asked to remove her long fake fingernails to adhere to the Respondent’s uniform requirements, she responded in a negative and oppositional manner, accusing her manager of being racist. The Applicant denies these allegations. She says that her manager asked her whether she had been asked by the business owner about her nails, to which she said, “No, Jane and I have never had a conversation about my nails”. The Applicant also says that she told her manager to take care about approaching staff regarding how to dress and what to wear because it can be perceived as discrimination if there is no formal policy to provide to employees, which is the case in the Respondent’s business. The Respondent did not accept the Applicant’s version of events and found that she had breached a number of contractual and other obligations owed by her.

[20] The letter of termination also refers to an allegation that the Applicant took $30 from the tip jar, but after the Applicant pointed out that she was never given a chance to respond to this allegation the Respondent contended in its response that its decision to terminate the Applicant’s employment was decided on the two allegations referred to above.

[21] The Applicant contends that she was not afforded procedural fairness by the Respondent. The Applicant also refers to “previous mediation” and a breakdown in the relationship between herself and her manager. This forms part of the background to the Applicant’s contention that her manager’s “account of the events twists the truth and invalidates my work and intentions”. The Applicant contends that the complaint made by her manager about her was malicious and vexatious.

[22] There is an issue as to whether the Applicant was employed by the Respondent for the minimum employment period. The Applicant commenced employment with the Respondent as a casual employee, working regular shifts for about 30 hours per week, from 28 June 2020 until she was appointed as a permanent part time employee on 25 November 2020. The Applicant remained in that position until she was dismissed with effect on 8 June 2021. Taking the Applicant’s case at its highest, her period of employment with the Respondent was just less than 12 months. The Respondent contends that it had nine full-time staff and four to five casual staff at the time of the Applicant’s dismissal. The Applicant believes from payroll records provided to her that there were associated entities to the Respondent. The evidence adduced on the application for an extension of time does not enable me to make any assessment of whether or not there were any employees of any associated entities of the Respondent at the time of the Applicant’s dismissal.

[23] On the basis of the material before the Commission the Applicant has at least an arguable case that she was protected from unfair dismissal and her dismissal was harsh, unjust and/or unreasonable. The Applicant has raised legitimate points that would need to be examined in detail at a final hearing, including whether she engaged in the conduct alleged against her. My initial impression is that her explanations in response to both allegations have a ring of truth to them. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in her favour on her application for an extension of time.

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

[24] 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.

[25] 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

[26] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging her application and although the Applicant has at least an arguable case that her dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[27] 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 for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Cullity on her own behalf
Mr Hanafi on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
July 22.

Printed by authority of the Commonwealth Government Printer

<PR732081>

 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]