Emma Hussey v Bradconn Pty Ltd T/A Jamaica Blue Indooroopilly

[2015] FWC 6838

[2015] FWC 6838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Emma Hussey
v
Bradconn Pty Ltd T/A Jamaica Blue Indooroopilly
(C2015/4822)

DEPUTY PRESIDENT KOVACIC MELBOURNE 6 OCTOBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Hussey (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the Bradconn Pty Ltd T/A Jamaica Blue Indooroopilly (the Respondent) on 24 June 2015 in contravention of the general protections provisions of the Act. As the application had been lodged five days outside the statutory timeframe for lodgement, the Commission issued Directions on 10 August 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] Specifically, the Directions required Ms Hussey to lodge with the Commission by no later than noon on 17 August 2015 an outline of submissions and any witness statements and other documentary material she intended to rely on in support of the Commission extending the time for the lodgement of her application. Ms Hussey failed to comply with those Directions and, despite repeated attempts by the Commission to contact her by both telephone and email, failed to lodge any additional material with the Commission.

[3] As the application was listed for a telephone hearing on 29 September 2015, the Commission again sought to contact Ms Hussey on that day by both telephone and email without success. In doing so, the Commission indicated that in the absence of any response, Ms Hussey’s application would be would be heard and determined on the basis of the material before the Commission.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Ms Hussey commenced employment with the Respondent on 11 March 2015. In her application, Ms Hussey alleged, among other things, that she was dismissed after making a report of sexual harassment against a co-worker. More particularly, Ms Hussey alleged that she had been dismissed in contravention of sections 343, 344 and 351 of the Act which deal with coercion, undue influence or pressure and discrimination respectively.

[6] As previously noted, Ms Hussey’s general protections application was received by the Commission on 20 July 2015.

[7] The Respondent in its Form F8A – Employer Response to General Protections Application (Form F8A) response contended that Ms Hussey’s dismissal was performance-based. The Respondent also raised a jurisdictional objection to the application on the basis that it had been filed outside the 21 day statutory timeframe.

[8] At the telephone hearing on 29 September 2015, the Respondent stated that it relied on the material provided in its Form F8A response and that it did not wish to add to that material. Ms Hussey did not attend/participate in the hearing.

The Relevant Legislation

[9] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] In her application Ms Hussey described herself as a very non-confrontational person and stated that initially she had not wanted to file an application. Ms Hussey further stated in her application that after the 21 day period for making a general protections application had passed the Respondent threatened to withhold her tax return statement until she returned her uniforms to the store. This, according to Ms Hussey’s application, was the final straw that led her to lodge her application. Beyond that Ms Hussey did not provide any further reasons for the delay in lodging her application.

[12] The Respondent did not address this factor in its Form F8A response. However, the Respondent did contend in its response that at the termination meeting Ms Hussey had agreed to return her uniforms within a week.

[13] While I can appreciate Ms Hussey’s reluctance to attend the Respondent’s premises in circumstances where she alleges that she had been sexually harassed by one of her co-workers, this of itself does not explain why she did not lodge her application within the 21 day statutory timeframe.

[14] The reasons for the delay cited by Ms Hussey do not support a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[15] Ms Hussey did not address this factor in her application.

[16] While the Respondent did not specifically address this factor in its Form F8A response, it did in that response describe the termination meeting as “amicable” and contended that “From the outset of the meeting Emma [Ms Hussey] stated she did not come to the meeting with any expectation other than to be terminated…” 1

[17] This does not support a finding that there were exceptional circumstances in this case.

(c) Prejudice to the employer (including prejudice caused by the delay)

[18] Neither Ms Hussey nor the Respondent addressed this factor. I therefore consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[19] While neither Ms Hussey nor the Respondent addressed this factor, it is clear from the material before the Commission that a number of factual matters regarding Ms Hussey’s dismissal are disputed. In those circumstances, without the benefit of hearing the submissions and evidence of the parties on this issue I am unable to form a considered view as to the merits of the application.

[20] As such, I consider this factor to be a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[21] Again, neither Ms Hussey nor the Respondent addressed this factor. I therefore consider the issue of prejudice to be a neutral consideration.

Conclusion

[22] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:

“[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.

[23] Having considered all of the factors set out in s.366(2), and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[24] Accordingly, the application is dismissed. An order to that effect will be issued with this decision.

Appearances:

There was no appearance for the Applicant

Mr Shane Scott, for the Respondent

Hearing details:

2015.

Canberra:

September 29.

 1   Form F8A at paragraph 12 of Item 5.1

 2   [2011] FWAFB 975

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