Faye Sawyer v Rentokil Initial Pty Ltd

[2021] FWC 1556

[2021] FWC 1556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Faye Sawyer
v
Rentokil Initial Pty Ltd
(U2021/360)

DEPUTY PRESIDENT MANSINI MELBOURNE, 23 MARCH 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mrs Faye Sawyer (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was filed outside the statutory timeframe and, taking into account the matters at s.394(3), am not satisfied that the circumstances (when considered individually or together) are exceptional. Accordingly, the application is dismissed. The reasons for this decision follow.

Application filed outside the statutory timeframe

[3] The Applicant’s employment with Rentokil Initial Pty Ltd (Respondent) ended on and effective 22 December 2020. The unfair dismissal application was lodged on 13 January 2021.

[4] 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). The period of 21 days ended at midnight on 12 January 2021. The application was therefore filed one day outside the 21 day period.

[5] The Applicant asked the Commission to grant a further period for the application to be made under s.394(3). A program for the filing of materials in relation to this jurisdictional issue was set and the matter proceeded to hearing, by telephone, on 17 March 2021.

[6] In support of her request for an extension of the time for filing the claim, the Applicant asked the Commission to receive the application and a statement prepared in response to the directions. The Applicant also gave oral evidence at the hearing. The Respondent did not seek to address the Commission about the lateness of the application.

The ‘exceptional circumstances’ test

[7] 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

[8] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[9] 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.

[10] 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

[11] 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

[12] The Applicant explained the reason for her delay as because she was “preoccupied with family stuff”. 4 She elaborated on this reason as follows:

•  her application, the Applicant said that she was late to process the application form due to her “sons current kidney issues” and that her son was having surgery for these issues the next day.

•  In her written statement, the Applicant said that the reason for her delay was that her son was in hospital with kidney rejection and also her husband had 2 surgeries.

•  At the hearing, the Applicant said that her son is a single parent and so she was providing care to the child on account of his kidney issues. She identified one date that her husband had surgery, being 13 January 2021.

[13] The Applicant did not detail or seek to rely on medical or other objective evidence in support of her reason(s). One single day was provided with certainty as to the impact of these events, being 13 January 2021 – the same day that the application was filed. The Applicant was otherwise vague and not able to identify precise dates or times on which these events were said to have prevented her from filing.

[14] I accept that the Applicant was busy managing family responsibilities in the period following her dismissal on 22 December 2020. But, on the limited materials before the Commission, I do not consider these matters (individually or together) to be uncommon or unusual and am not satisfied that there is an acceptable or reasonable explanation for the delay. Rather, the Applicant has demonstrated that she was capable of identifying the jurisdiction and able to make an unfair dismissal claim. She simply did not do so until after the statutory time for filing.

[15] In the circumstances, the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.

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

[16] Whilst the Applicant claimed to have been forced, it is not contentious that she resigned her employment and was therefore aware of the dismissal on the same day that it took effect.

[17] This factor weighs against the Applicant because she had the benefit of the full 21 day period to lodge an application.

Action taken to dispute the dismissal

[18] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 5 The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.6

[19] The Applicant said that she was not permitted to contact the Respondent after her resignation on 22 December 2020. She did not take steps to notify the Respondent of her intention to dispute the termination of the employment relationship prior to filing this application.

[20] This factor does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted.

[22] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[23] The Act requires me to take into account the merits of the application in considering whether to extend the time for filing.

[24] In relation to the substantive claim, the Respondent’s primary position was that the Applicant was not “dismissed” because she voluntarily resigned from the employment. Following alleged observations that she was ignoring her work restrictions, the Respondent met with the Applicant twice to remind her of the requirements of her return to work plan. It said she had offered her resignation orally at the second of those meetings, on 21 December 2021, but this was not accepted - presumably because it was offered in the ‘heat of the moment’. It was not until the Applicant tendered a written notice of resignation the following day that her resignation was accepted.

[25] The Applicant alleged to have suffered inappropriate treatment which she described as bullying, harassment and discrimination from management - including in relation to a work related injury and the taking of meal breaks. She contended that, as a result, she felt she had no choice than to resign.

[26] The merits of the application would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits.

[27] I consider the merits to be a neutral consideration.

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

[28] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[29] 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

[30] 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. The absence of an acceptable or reasonable explanation and the Applicant’s immediate awareness of the dismissal taking effect respectively weigh against, and all other factors weigh at best neutrally towards, a finding of exceptional circumstances in this case. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[31] 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:

F. Sawyer for herself.

K. Nolan for the Respondent.

Hearing details:

2021.
Melbourne (By Telephone).
17 March.

Printed by authority of the Commonwealth Government Printer

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 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].

 4   Applicant’s written statement.

 5   Wilson v Woolworths[2010] FWA 2480 at [19]-[21].

 6   Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.