Emma Weber v QS Law Pty Ltd T/A Quinn & Scattini Lawyers
[2015] FWC 7009
•22 OCTOBER 2015
| [2015] FWC 7009 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emma Weber
v
QS Law Pty Ltd T/A Quinn & Scattini Lawyers
(U2015/10718)
COMMISSIONER JOHNS | SYDNEY, 22 OCTOBER 2015 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Ms Emma Weber (applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 4 August 2015, that being 32 days after her employment was terminated by QS Law Pty Ltd T/A Quinn & Scattini Lawyers (respondent) on 3 July 2015.
The jurisdictional objection
[3] On 14 September 2015, the Commission wrote to the applicant, inviting her to provide written reasons for her delay in lodgement and advising that unless the Commission was informed otherwise, the matter would be dealt with on the papers.
[4] On 29 September 2015 the applicant sent a fax to the Commission providing reasons for her delay in lodgement. In short the applicant says that, although the termination took effect on 3 July 2015:
a) She was unaware of the statutory 21 day time period in which to lodge her application;
b) The termination of her employment was causing her significant financial hardship; and
c) She was dismissed for unsatisfactory work performance, yet she was not notified prior to her dismissal that her performance at work was an issue.
[5] On 14 September 2015 the respondent indicated in its Employer Response Form (F3) its objection to the Commission exercising its jurisdiction to deal with the application because it was lodged later than the 21 days after the dismissal took effect. In short, the respondent says:
a) The application was lodged outside of the 21 day time period;
b) The applicant was repeatedly warned about issues relating to her performance; and
c) The applicant’s continued unsatisfactory performance did not justify the continuation of her employment.
Legislative scheme
[6] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking 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.
[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. 4
Background
[8] The applicant commenced working for the respondent in September 2013.
[9] On 19 June the applicant was notified of her dismissal with effect from 3 July 2015.
[10] The respondent asserted that there were numerous performance issues in the lead up to the applicant’s dismissal.
[11] The applicant says no performance issues were raised with her and says she had not been given any warnings.
Consideration
Paragraph 394(3)(a) - The reason for the delay
[12] It is undisputable that there were 32 days between when the termination of the applicant’s employment took effect and when an application was filed with the Commission. That means that the applicant’s application for an unfair dismissal remedy was 11 days out of time.
[13] The applicant provided only one reason for her delay in lodging her application for relief from unfair dismissal. The applicant stated that she was unaware of the 21 day statutory time period in which to file her application.
[14] Ignorance of the 21 day time period for filing an application does not constitute an exceptional circumstance warranting the grant of an extension of time for filing. The applicant’s ignorance of the 21 day time period is not ‘out of the ordinary, unusual, special or uncommon’ in fact, it is a reason for delay that is regularly, or routinely, advanced by applicants in this jurisdiction.
[15] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[16] It is uncontested that the applicant first became aware of the dismissal on 19 June 2015 and that it would be effective on 3 July 2015.
[17] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[18] The applicant did not indicate an action taken by her to dispute her dismissal besides the filing of this application. Rather, the applicant indicated that she ‘started job searching and attending interviews immediately’ following her dismissal.
[19] While it is understandable that, in the face of dismissal, the applicant focussed her attention on job searching, it does not detract from the fact that her application was 11 days late.
[20] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[21] The respondent did not disclose that it would suffer any exceptional prejudice as a result of the applicant’s delay in filing her application.
[22] As such this is a neutral factor for consideration.
Paragraph 394(3)(e) - The merits of the application
[23] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6
[24] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[25] The substantive factual contest between the applicant and the respondent is whether the applicant was aware of, and subject to, a satisfactory work performance review plan. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[26] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[27] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[28] If the matter proceeds to a hearing on the merits and the applicant can establish to the satisfaction of the Commission that there was no valid reason for the termination of her employment and no procedural fairness, then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.
[29] That the applicant’s case is not without merit or lacking in any substance weighs in favour of granting her a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[30] Neither party indicated that there were other persons in a similar position to the applicant.
[31] This is a neutral factor for consideration.
Conclusion
[32] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application). An Order to this effect will be issued with this decision.
COMMISSIONER
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 [2011] 203 IR 1
4 Above note at [13].
5 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
6 Ibid.
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