Danielle Lewis v Everclear Glass and Glazing Pty Ptd t/as Everclear Windows & Doors
[2024] FWC 2984
•29 OCTOBER 2024
| [2024] FWC 2984 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danielle Lewis
v
Everclear Glass and Glazing Pty Ptd t/as Everclear Windows & Doors
(U2024/10789)
| COMMISSIONER SLOAN | SYDNEY, 29 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 9 August 2024, Danielle Lewis was informed of her dismissal from Everclear Glass and Glazing Pty Ptd t/as Everclear Windows and Doors (“Everclear”). The dismissal took effect that day.
On 12 September 2024, Ms Lewis filed with the Fair Work Commission (“Commission”) an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (“Act”).[1] The application was filed 13 days later than the 21 day time limit prescribed by s 394(2)(a). Ms Lewis has applied for the Commission to grant her an extension of time under s 394(2)(b) (“extension application”).
I have determined to dismiss Ms Lewis’s extension application. These are my reasons.
Principles governing extensions of time
The Commission may allow an extension of time to file an application for an unfair dismissal remedy if it is satisfied that there are “exceptional circumstances” (s 394(3)). Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon, but they do not need to be unique, or unprecedented, or very rare.[2] 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 are seen as exceptional.[3]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[4]
In determining whether there are “exceptional circumstances”, the Commission is required by s 394(3) to take into account:
“(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.”
The requirement to “take into account” these matters means that each of them must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[5]
The applicant bears the onus of demonstrating that exceptional circumstances exist.[6]
These proceedings
The Commission sent an email to Ms Lewis and Everclear on 27 September 2024, which observed that the unfair dismissal application appeared to have been filed 13 days late. The email outlined the requirements of ss 394(2) and (3) and provided hyperlinks to the Commission’s website for further information regarding extensions of time. Ms Lewis was asked to respond by email explaining why she considered that there were exceptional circumstances in her case. She was informed that she “may provide evidence which supports [her] application for an extension of time”.
The Commission received an email from Ms Lewis on 2 October 2024. The email stated:
“Good afternoon,
I would like to advise that I submitted the complaint as Everclear held all my monies by Mrs Nassif along with her advising to Centrelink files information in regards to my departure from the company which stopped me from payments.
I was advised by Fair Trading and my legal advice to contact the parties by letter to see if we could conclude the matter before taking it further. Which I did. This was delayed as I waited the period as I need to ensure I received my payment as Mrs Nassif was playing games.
Once I received a response from Mrs Nassif that they didn’t want to try and finalise the matter I lodged the complaint.
I have a number of letters from other staff members that worked for this company and left either without notice or due to circumstances. I can produce this information along with the other issues experienced during my employment of just under 2 years. I have recordings of her speaking to staff and clients with disrespect and I have other information regarding the company which I have been advised is illegal.
Therefore I would like the extension due to the circumstances above.
I await your response.”
An email was sent to the parties by the Chambers of Deputy President Easton on 4 October 2024. The parties were informed that the matter had been reallocated to me to determine whether to grant Ms Lewis an extension of time.
On the same day I made directions in anticipation of hearing and determining the extension application. These included that Ms Lewis file and serve an outline of arguments and any evidence on which she wished to rely in respect of the extension application. The directions were sent to the parties by email.
Ms Lewis did not file any material by the directed date. I arranged for an email to be sent to her on 14 October 2024 which, in effect, asked her to confirm her intentions.
There was then a short email exchange between the Commission and Ms Lewis. It is not necessary to traverse that correspondence in any detail. It suffices to say that Ms Lewis requested and was granted an extension of time by which to file and serve her material.
The Commission received an email from Ms Lewis on 17 October 2024. The email stated:
“Dear parties,
Please note I apologise for the delay however as previously advised I have been working long hours training in a new employment position. I don’t have access to a computer and operating from emails on my iPhone.
I am providing the following information late I understand however I am acting for myself and trying to work at the same time. I can’t afford the legal representation I mention below due to the reasons mentioned below.
This is the original letter I sent Mr Leba Nassif the Director of Everclear to try and come to an agreement.
I will be obtaining statements from former staff members on the way they felt treated during their employment by Mrs Julie Nassif. I have since been advised that ‘Ali’ referred to below is no longer in employment which I find interesting.”
The email then went on to reproduce the email from Ms Lewis to Mr Nassif. The evidence reveals that that was sent on 3 September 2024. In short, that email set out the grounds on which Ms Lewis argued that she had been unfairly dismissed by Everclear; stated that Ms Lewis was considering bringing an unfair dismissal application; and invited Everclear to enter into settlement discussions.
That email was the only document received from Ms Lewis in compliance with the directions I had made.
Everclear filed written submissions in response to the extension application on 25 October 2024, setting out the grounds on which the extension application was opposed. It also relied on statements by Mr Nassif, Julie Nassif, the General Manager of Everclear, and Steve Cuthbert, the Sales Manager of Everclear.
The hearing of the extension application took place on 28 October 2024. Ms Lewis relied on her emails to the Commission of 2 and 17 October 2024. She also made some short oral submissions. Everclear relied on the material it had filed, supplemented by short oral submissions.
Consideration of the s 394(3) criteria
The reason for the delay
For the purposes of s 394(3)(a), the relevant “delay” is the period after the statutory time period. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[7] 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.[8]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 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.[9]
In her written material, Ms Lewis’s reasons for delay come down to two propositions. First, that she was following advice to attempt to negotiate a resolution with Everclear prior to commencing litigation. Second, that she had delayed making such an attempt until she had received her final payments from Everclear, which had been delayed.
Ms Lewis did not explain why any delay in receiving her final payments – a contention which was not challenged in Everclear’s evidence and submissions – prevented her contacting Everclear earlier. Of more significance, Ms Lewis did not demonstrate how the delay in receiving her final payments caused or contributed to her delay in filing her unfair dismissal application.
At the hearing, I asked Ms Lewis why she had thought it necessary to wait to receive her final payment from Everclear before sending the email to Mr Nassif on 3 September 2024; that is, why she could not have done both. She responded by saying that she did not have the facilities to do that: she did not have a computer and so was attempting to do everything on her phone. I did not find this to be a persuasive submission.
Ms Lewis also stated at the hearing that she was unaware of the 21 day time limit; that she did not understand what had been requested of her in respect of the extension application; that she was unable to afford representation; and that she does not have the facilities – such as a computer or scanner – that would have allowed her to run the extension application properly. None of these matters provide a proper explanation for the delay, for four reasons.
First, mere ignorance of the statutory time limit in s 366(1) is not an exceptional circumstance.[10] Second, Ms Lewis received guidance from the Commission as to the extension application, including in the email sent to her on 27 September 2024. To my knowledge she did not at any time prior to the hearing raise a concern that she did not understand what was expected of her in respect of the extension application. Third, Ms Lewis requested and was granted additional time to file and serve her evidence and submissions in respect of the extension application, in part due to the limited facilities available to her. Fourth, Ms Lewis has not identified any further evidence that she would have brought, but was unable to bring, in respect of the extension application, due to not having a computer and scanner.
Everclear submitted that on her own evidence, Ms Lewis was able to obtain advice from “Fair Trading” and a solicitor, and to prepare her email to Mr Nassif. It submitted that Ms Lewis should be regarded as also having had the capacity to commence these proceedings within the statutory time limit. I accept those submissions.
I am not persuaded that Ms Lewis has provided an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Ms Lewis was notified of the dismissal on the day it took effect. She had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.
Any action taken by the person to dispute the dismissal
Action taken to dispute a dismissal, other than lodging an application under the Act, may weigh in favour of granting an extension of time.[11] In the present case, Ms Lewis relies on her email to Mr Nassif of 3 September 2024. However, that email was sent after the 21 day time limit to commence proceedings had expired. This is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
Everclear submitted that were the Commission to grant the extension application, it would suffer prejudice through having to incur the costs and inconvenience of defending proceedings that would otherwise be statute barred. To my mind, such would be visited on any employer were the Commission to find that there were exceptional circumstances warranting an extension of time. Everclear raised no evidence or submissions to suggest that it would suffer prejudice caused by the delay itself.
Even so, the absence of prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement.[12] This is a neutral consideration.
The merits of the application
In the context of the extension application, consideration of the merits of the substantive application for relief does not require a detailed analysis of the substantive merits. It is sufficient that an applicant establish that their claim is not without merit.[13] The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.[14]
There is limited material before me as to the merits of the unfair dismissal application. Ms Lewis’s written evidence is limited to the contentions in her email to Mr Nassif of 3 September 2024. Everclear’s evidence was largely confined to a statement by Ms Nassif that Ms Lewis was dismissed “because of performance and behaviour”.
There was some conflict arising from the matters raised in the parties’ oral submissions at the hearing. Ms Lewis submitted that things were “working well” in her employment with Everclear until “suddenly” being told that she was dismissed. Everclear submitted that Ms Lewis was dismissed following “an escalation of warnings”, and that she had been afforded procedural fairness.
The merits of the application would obviously require an examination of the alleged performance and behaviour concerns, including whether they had a basis in fact, whether they had previously been raised with Ms Lewis through, for example, counselling and warnings, and ultimately whether they warranted the termination of her employment. The evidence of Mr Nassif and Ms Nassif regarding the termination meeting with Ms Lewis on 9 August 2024 suggests that the dismissal came as a surprise, which raises the question as to whether Ms Lewis was indeed afforded procedural fairness in the process resulting in her dismissal.
However, I have not been provided with a proper basis on which I could make even a preliminary assessment of the way in which these questions would be answered following a hearing of the substantive application. The merits of the application is 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.
Ms Lewis advanced no submissions in respect of this consideration. I have been provided no basis on which to find that fairness between Ms Lewis and other persons in a similar position favours the granting of an extension of time. This is a neutral consideration.
Conclusion
I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. There is no basis on which I could allow an extension of time under s 394(3). Ms Lewis’s extension application is declined.
I order that the application for an unfair dismissal remedy be dismissed.
COMMISSIONER
Appearances:
Danielle Lewis, Applicant
Kaiwin Zhou for the Respondent
Hearing details:
2024
Sydney (by video)
October 28
[1] All legislative provisions referred to in this decision are references to provisions of the Fair Work Act 2009.
[2] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[3] ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[5] See for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19]
[6] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[7] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[8] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[9] Stogiannidis at [39]
[10] Nulty v Blue Star Group at [14]
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[12] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[13] Telstra-Network Technology Group v Kornicki (1997) 140 IR 1 at 11, cited in Cosgrove v Clarity Interiors[2020] FWCFB 5464 at [33]
[14] Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
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