Fiona Kennedy v Action Industrial Catering Pty Ltd
[2024] FWC 3200
•20 NOVEMBER 2024
| [2024] FWC 3200 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Fiona Kennedy
v
Action Industrial Catering Pty Ltd
(C2024/6822)
| COMMISSIONER P RYAN | SYDNEY, 20 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal – application made out of time – circumstances not exceptional – application dismissed
Introduction and Background
This decision concerns an application by Ms Fiona Kennedy (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant states that her employment with Action Industrial Cleaning Pty Ltd (Respondent) was terminated with effect from 23 August 2024. The Application was made on 24 September 2024.
An application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows.[1] The period of 21 days ended at midnight on 13 September 2024. Therefore, the Application was made 11 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.
I listed the matter for hearing at 1:00pm (AEDT) on Monday 18 November 2024. I also directed the parties to file materials in support of, or in opposition to, the application for an extension of time. I directed the Applicant to file her materials by no later than 4:00pm on 25 October 2024. The Applicant did not comply with that direction.
On 28 October 2024, my Chambers sent correspondence to the Applicant seeking an explanation. On 29 October 2024, the Applicant sent correspondence stating, “[T]he date of the hearing is the 18 November I have to travel to NZ for a family issue 18 November.” I understood that correspondence to be an application for an adjournment even though that was not expressly requested. The Applicant did not otherwise explain her failure to comply with the directions or indicate when her materials might be filed.
On 30 October 2024, my Chambers sent correspondence to the Applicant seeking documentation supporting her travel arrangements and advising that her response to question 1.4 of the Application will be taken as comprising her materials in chief. The Applicant did not respond.
On 15 November 2024 and having not received any further correspondence from the Applicant providing documentation supporting her travel arrangements or materials supporting her application for an extension of time, my Chambers sent correspondence to the parties confirming that the matter remains listed for hearing at 1:00pm (AEDT) on Monday 18 November 2024. The parties were also provided with access to the Hearing Book and advised that if they fail to attend the hearing, the matter may be determined in their absence.[2]
On 18 November 2024, the Applicant failed to attend the hearing. After repeated attempts to contact the Applicant were unsuccessful, I decided to proceed to determine the application for an extension of time.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.[3] 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.[4]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) 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.
Section 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to make an application for the Commission to deal with a dismissal dispute.[5]
I now consider these matters in the context of the Application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[6]
In response to question 1.4 of the Application, the Applicant provided the following explanation for the delay:
I went on a two week mental health break.
It’s a public holiday weekend as I complete this form.
I contacted legal aid 3 days ago and had an appointment this morning.
I have no personal computer or printer.
I wanted to apply for a driving position with Pilbara Minerals and thought my prospects might be hampered. Legal aid advised it should not.
I do not accept the explanations, whether considered individually or collectively, constitute an acceptable or reasonable explanation for the delay for the following reasons.
First, although the Applicant states she went on a mental health break, there is no compelling medical evidence that the Applicant was suffering from a medical condition and that it had a material impact upon the Applicant’s capacity to make the Application within the statutory time limit.[7]
Second, an applicant does not need to have a personal computer or printer to make an application. Access to the internet or a telephone is sufficient, noting an application can be made by telephone. Throughout these proceedings, the Applicant communicated with the Commission and my Chambers by email, demonstrating that the Applicant has an email address and access to the internet. The Application also included mobile telephone contact details for the Applicant.
Third, the public holiday and Legal Aid appointment somewhat explain the period of delay between Friday 20 September 2024 and Tuesday 24 September 2024, but by 20 September 2024, the Application was already well past the 21-day time limit.
Fourth, the Applicant stated that she elected not to make (or delayed making) the Application pending her applying for a job with a client of the Respondent. There is no reason why the Applicant could not have made the Application and withdraw it at a later date if she felt that she could not proceed with it.
In the absence of an acceptable or reasonable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[8]
In Hunter Valley Developments Pty Ltd v Cohen[9], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[10]
There is no evidence of any action taken by the Applicant to dispute the dismissal other than making the Application. This factor weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed 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.
It follows that it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.
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.366(2).
Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
No Appearance for the Applicant.
Ms K Delaveau and Ms N McAllister for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link).
18 November.
[1] See s.366 of the Fair Work Act 2009.
[2] See s.600 of the FW Act.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285; Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[9] [1984] FCA 176.
[10] Ibid at [19].
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