Dorothy Lorraine Macartney v D & D Reynolds Pty Ltd T/A Kingston Carpets

[2020] FWC 4599

[2020] FWC 4599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dorothy Lorraine Macartney
v
D & D Reynolds Pty Ltd T/A Kingston Carpets
(U2020/8898)

DEPUTY PRESIDENT DEAN SYDNEY, 7 SEPTEMBER 2020

Unfair dismissal application – effective date of dismissal - extension of time - application dismissed.

[1] This decision concerns an application by Dorothy Macartney (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by D & D Reynolds Pty Ltd t/as Kingston Carpets (the Respondent) as a Sales Assistant.

[2] There was a conflict as to when the Applicant’s dismissal took effect. The Applicant’s evidence was that she became aware of her dismissal on 18 May 2010. The Respondent’s evidence was that the Applicant resigned on 13 May 2020. The unfair dismissal application was lodged on 29 June 2020. Taking 18 May 2020 as the effective date her employment ended, her application was not made until three weeks’ later, and so is at least 21 days late.

[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).

[4] Whether the Applicant’s employment ended 13 or 18 May 2020, the application was made well after the 21 day time limit allowed by the Act. Accordingly, I must decide whether an extension of time should be granted.

[5] At the hearing on 31 August 2020, the Applicant appeared on her own behalf. Ms I Connor of MCW Lawyers appeared with permission for the Respondent.

[6] 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

[7] 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.

[8] 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 now consider these matters in the context of the application.

Reason for the delay

[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.³

[10] The Applicant gave evidence that she attended her doctor and obtained a medical certificate on 14 May 2020. She then made numerous inquiries with the Fair Work Ombudsman, the State Superannuation Board and a private lawyer as to her monetary entitlements shortly after her employment ended. She gave evidence that she followed the advice of the Fair Work Ombudsman in an effort to repair the relationship between her and the Respondent.

[11] The Applicant also gave evidence that it had taken time to receive advice about alleged discrepancies with her termination payment, and she had engaged a lawyer who had written to the Respondent on 11 June 2020, but the Respondent’s reply was not received until 25 June 2020.

[12] The Respondent submitted that none of these matters evidenced exceptional circumstances. The Applicant did not dispute that she was aware of the 21 day time limit, and it was clear she had obtained legal advice on or before 12 June 2020, being the date her lawyers wrote to the Respondent on her behalf.

[13] The Respondent also submitted that the medical certificates provided by the Applicant did not support a finding that the Applicant was incapacitated to an extent that would have prevented her from making her application within time.

[14] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. The Applicant was aware of the 21 day time limit, and her inquiries as to her monetary entitlements did not prevent her from pursuing an unfair dismissal application at the same time. Given her ability to pursue numerous avenues to obtain advice, including engaging a lawyer, I do not accept that she was suffering from a medical condition that incapacitated her to such an extent as to render her incapable of making an application for an unfair dismissal remedy.

[15] Overall, this weighs against a conclusion that there are exceptional circumstances.

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

[16] While there is a dispute as to whether the Applicant resigned on 13 May or was dismissed on 18 May, either way the Applicant was abundantly clear by 18 May that her employment had ended. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[17] The Applicant engaged a lawyer to write to the Respondent, by letter dated 11 June 2020. Primarily, this letter sought the payment of her alleged entitlements to payments such as sick leave and long service leave. On balance, I consider this factor a neutral consideration.

Prejudice to the employer

[18] I cannot identify any prejudice that would accrue to the company 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

[19] 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 application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed, in particular whether the Applicant resigned or was dismissed.

[20] It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[21] 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

[22] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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:

D Macartney, on her own behalf.
I Connor for D & D Reynolds Pty Ltd T/A Kingston Carpets.

Hearing details:

2020.
Sydney (By telephone):
August 31.

Printed by authority of the Commonwealth Government Printer

<PR722282>

1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

2 Ibid.

3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].