Eva Zizius v Dobre Pty Ltd

[2024] FWC 2053

[2024] FWC 2053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Eva Zizius
v

Dobre Pty Ltd

(U2024/6406)

DEPUTY PRESIDENT CROSS SYDNEY, 5 AUGUST 2024

Application for an unfair dismissal remedy

1. On 4 June 2024, Eva Zizius (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant claimed she was employed, by Dobre Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 6 June 2022. The Applicant claimed that she was notified of her dismissal on 12 May 2024, and that dismissal took effect on 12 May 2024.

1. Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation from the date when the dismissal took effect, and allowing for the 21^st day falling on a Sunday and so not being counted, an application for a remedy should have been lodged by 3 June 2024. The Application was therefore lodged outside of the time prescribed and was lodged 1 day after the last day on which such an application could have been made.

1. On 16 July 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:

[1] By no later than 4:00PM on Tuesday, 23 July 2024 Eva Zizius (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

· The reason(s) for the delay;
· Whether they first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.

[2] By no later than 4:00PM on Tuesday, 30 July 2024 Dobre Pty Ltd (the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue.

Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

1. The Applicant failed to file any material by 23 July 2024. My Chambers issued the following email noting the noncompliance and copying in the respondent. The email relevantly stated:

Good morning Ms Zizius,

I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 16 July 2024 (Listing Directions). Please see below Direction:

1.        By no later than 4:00PM on Tuesday, 23 July 2024 Eva Zizius (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

•          The reason(s) for the delay;
•          Whether they first became aware of the dismissal after it had taken effect;
•          Any action taken to dispute the dismissal;

•If there is any prejudice to the employer (including prejudice caused by the delay);

•          The merits of the application; and
•          Fairness as between the Applicant and any other persons in a similar position.

The Applicant is required to email Chambers by 4:00pm on this afternoon with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.

I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:

c)           Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.

1. Nothing was received and no response was provided. Once more on 26 July 2024, my Chambers issued a second email regarding the Applicants noncompliance. The email relevantly stated:

Dear Ms Zizius,

I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 16 July 2024, which outlines the timeframe for the filing of your submissions and other documents.

Chambers has contacted you via email on 26 July 2024 in relation to your non-compliance with Direction 1. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.

You are required to either:

·   file and serve your submissions and other documents as outlined in Direction 1; or

·   advise that you do not wish to file any materials; or

·   make a request for an extension of time within which to file your materials, including any reason and evidence to support;

by 1:00PM this afternoon.

1. The Applicant provided by way of email a very brief outline of her submissions regarding the out of time issue. No further material was provided, and no further material has since been provided.

1. The Respondent has filed no material to date, despite multiple calls from my Chambers and an email dated 1 August 2024, which relevantly notes:

I note that the Respondent has only filed a Form F3 and a statement to date. No further material has been filed despite the direction to do so.

The Hearing listed for 2:00PM (Sydney time) tomorrow afternoon over Microsoft Teams will proceed as listed.

Please note that attendance is compulsory.

1. The Hearing took place over Microsoft Teams at 2:00PM (Sydney time) on Friday, 2 August 2024.

Consideration

1. Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).”

1. As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

“(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.”

1. It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

1. When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

1. A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

1. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.

1. In the Form F2 the Applicant selected the option noting that her Application was being made within 21 days of her dismissal. The question immediately preceding asked ‘what date your dismissal take effect?’ the Applicant responded 12 May 2024.[1]

1. In her email dated 29 July 2024, the Applicant submitted the following:

My application for unfair dismissal was only late by 1 day via online as my prior application that i sent the week prior via post did not get there by the 21 day deadline.
On the 14th of may i called legal aid to book an appointment. The earliest available appointment was  the 21st May. I had the phone appointment on the 21st .
On the 29th of may 2024, i mailed my application to the Fair Work commission East Sydney. On Monday the 3rd of June was my daughters 11th birthday and i forgot to chase up that day if my paperwork arrived. The next day. the 4th of June, i called the office to see if my paperwork had arrived but still not. So i decided to file the application on line.
It was only 1 day after the 21 day deadline so i hope you can understand as going through the unfair dismissal itself has been very difficult.

I was made aware of my dismissal on Sunday 12th of May via text message at 7am!
No prior questioning or anything to make me think my job was in jeopardy.

No action was taken to dispute the dismissal . After the way i had just been treated i did not want to go back there.
I only called on Monday 13th May to ask what the actual incident that was referred to in the text message was. Not a proper reason was given.

I was not only unfairly dismissed ,as the story changed as to why i even lost my job, but so poorly treated after not even being asked about the 'incident' myself.
And to be done via text message, not only very unprofessional but cold and unnecessary.

I do not believe the same treatment for all staff has applied here at all. I have clearly been ganged up on and lied about by other staff, which he just believed them without ever asking me my side.
I will be looking forward to hearing back from you.

1. The Applicant honestly and candidly conceded in the Hearing that she knew of the 21 limitation period for at least a week before she made her Application.

1. I find that there was no acceptable explanation for the Applicant’s delay in filing the Form F2. The Applicant did nothing from 13 May to 29 May 2024, to advance her claim. She allegedly contacted legal aid but provided no evidence of this. The Commissions registry confirmed receipt of the posted Application, which was dated 24 May 2024, on 6 June 2024. I find it difficult to imagine the posting of her Form F2 took two weeks to reach the Commission. The Applicant also filed no proof of postage.

1. I acknowledge the date written on the Applicants Form F2 states 24 May 2024 however the commissions Registry confirmed two separate instances of filing. The First being online on 4 June 2024 and the second being received via post on 6 June 2024.

1. The Applicants application is out of time. Although the Fair Work Commission Rules 2013 (FW Rules) permit an application to be “lodged” by “sending the document by post to an office of the Commission” it is not “made” within the meaning of s 394(2) until this occurs. A mailed application is not made when drafted, dated or posted. In the case of a posted application, the making occurs when the postal process is complete, and the posted application is received by “an office of the Commission”.[2]

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

1. This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

1. The Applicant did not challenge her dismissal in any way. Nonetheless, the Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

1. Again, the Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(e) Merits of application

1. This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

1. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

1. In the matter of Kornicki v Telstra-Network Technology Group[3] the 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.”[4]

1. The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

(f) Fairness between the person and other persons in a similar position

1. Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

1. As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed in the Respondent’s favour.

1. I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms E Zizius the Applicant.

Mr P Agostinado, Solicitor, on behalf of the Respondent.
Mr Dobre on behalf of the Respondent.

Hearing details:

Microsoft Teams.

2:00PM.

2 August 2024.

[1] Form F2 at Q1.5.

[2] Rule 13(2)(b) of the FW Rules.

[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[4] Ibid.

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