Danielle Therese Buffier v Airservices Australia
[2024] FWC 1424
•3 JUNE 2024
| [2024] FWC 1424 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Danielle Therese Buffier
v
Airservices Australia
(C2024/1695)
| DEPUTY PRESIDENT DEAN | CANBERRA, 3 JUNE 2024 |
Application to deal with contraventions involving dismissal – extension of time.
This decision concerns an application made by Ms Danielle Therese Buffier (Applicant) on 15 March 2024, pursuant to s.365 of the Fair Work Act 2009, for the Commission to deal with a general protections dispute involving her alleged dismissal from Airservices Australia (Respondent).
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
The Applicant states in the application that her employment commenced on 12 February 2024 and ended after one week on 19 February 2024. Her general protections application was made four days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.
The Respondent raised jurisdiction objections to the application on the grounds that the application was made out of time and that the Applicant was not an employee of the Respondent and was therefore not dismissed by the Respondent. The Respondent says that the Applicant was an employee of PCubed Pty Ltd, a contractor which provides services to the Respondent.
The application was listed for hearing on 31 May 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on her own behalf and Mr R Gould appeared for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the 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.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation 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 a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Act does not specify what reason for the 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.[4]
The Applicant gave evidence that she contacted the Commission shortly after her dismissal. She said she had a lengthy email exchange with a member of the Commission’s client services team about her options. She referenced an email she received from the Commission on 4 March 2024 in which the process for making a general protections application was explained to her, as was the 21 day time limit. The Applicant gave evidence she mistakenly thought that her engagement with Commission staff was the commencement of an application, however she agreed she did not make this application until 15 March 2024. I am not satisfied that this explains the delay. The Applicant was clearly made aware of what was required to make her general protections application on 4 March 2024, however it took until 15 March for her to do so.
The Applicant also explained her personal circumstances. I do not consider it necessary to set those circumstances out for the purpose of this proceeding. While I have significant sympathy for the Applicant’s personal circumstances, those circumstances do not explain the delay in filing this application. The evidence of the Applicant is that immediately after her dismissal she was able to contact both PCubed and the Respondent on multiple occasions to seek reasons why the Respondent decided to cancel the contract to have the Applicant provide services to it. She was also able to engage with the Commission and was provided with information as to what she was required to do to make an application.
The Applicant also gave evidence she tried to resolve this directly with PCubed and with Airservices.
Having considered the evidence presented by the Applicant, I am not satisfied that an acceptable explanation has been provided for the Applicant’s failure to file this application within the statutory timeframe.
These matters weigh against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant took a number of steps to dispute her dismissal, including writing to the Fair Work Ombudsman, and corresponding with both the Respondent and PCubed.
This weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:
“It would appear that this factor, described in the Act as ‘the merits of the application’ is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination.”
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[6]
The Respondent contended the application was unmeritorious for two reasons, the first being that the Applicant was not dismissed within the meaning of s386 of the Act because she was not an employee of the Respondent. The Applicant confirmed during the hearing that she had been employed by PCubed and not by the Respondent. The evidence shows she had been employed by Pcubed to provide services to the Respondent via a contractual relationship between PCubed and the Respondent for the provision of program/project management services.
The Respondent also contended that the application was unmeritorious because the application does not disclose any workplace right that the Applicant exercised which she claimed led to her dismissal, nor was there any description of the protected attributes in s.351 that applied to the Applicant that are said to have been a reason for the dismissal.
Given the Applicant’s admission she was not an employee of the Respondent, I consider the merits of this application to be poor. This weighs against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[8]
Neither party made any submission as to this criterion and so I find this to be a neutral consideration.
Conclusion
While I am sympathetic to the Applicant’s personal circumstances, the matters the Commission must take into account do not lead to a finding that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. This is particularly so because the merits of the application are poor. On this basis, no further time is allowed for the application to proceed and the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
D Buffier on her own behalf.
R Gould for Airservices Australia.
Hearing details:
2024.
By telephone:
May 31.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] [2011] FWAFB 975.
[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[7] [2015] FWC 8885.
[8] Ibid at [29].
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