Fiona Patterson v Hogarth Australia Pty Ltd
[2023] FWC 2274
•7 SEPTEMBER 2023
| [2023] FWC 2274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fiona Patterson
v
Hogarth Australia Pty Ltd
(U2023/6750)
| DEPUTY PRESIDENT DEAN | CANBERRA, 7 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Ms Fiona Patterson (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by Hogarth Australia Pty Ltd (Respondent).
The Respondent objected to the application on the basis that it was made beyond the 21-day period prescribed by the Act.
Section 394(2) of the Act provides 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 Commission must first consider whether to grant a further period for the application to be made under s 394(3) prior to determining other jurisdictional objections[1].
The Applicant’s unfair dismissal application was lodged on 24 July 2023. There is no dispute the Applicant was dismissed on 22 June 2023, and so the application has been made 11 days outside the 21 day time limit prescribed by the Act. I must therefore decide whether to grant a further period for the application to be made under s 394(3).
The application was listed for hearing by telephone on 6 September 2023 to consider the jurisdictional objection. The Applicant appeared and gave evidence on her own behalf. Mr D Cross of Australian Industry Group appeared for the Respondent.
Extension of time
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.[2] 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.[3]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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 this application.
Reason for the delay
The Act does not specify what reason for the 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.[4]
The Applicant submitted that her claim was exceptional because the Respondent “failed to provide any requested evidence or sufficient information regarding my termination due to their delays, staff on leave – and my uncertainty of unfair dismissal became apparent when my employer failed to produce documented evidence that underpins the reasons for dismissal”.
She also said she travelled overseas on 7 July 2023 and didn’t have regular access to email. The Applicant also submitted that while overseas she coordinated with a lawyer appointed to her by the FWC however the lawyer told her they could not provide advice to her unless she paid $3000 which caused confusion and delay.
I am not satisfied that this is an acceptable reason for the delay in making an application. There is nothing in the explanation provided by the Applicant which is out of the ordinary or unusual. The making of an application of this kind does not require any detailed supporting information and so the request for ‘evidence’ the Applicant made to the Respondent does not provide an acceptable reason for the delay. Similarly, legal advice is not required to make this application. The application form is straightforward and uncomplicated and does not require legal advice to be completed. Finally, the Applicant’s overseas trip does not provide an acceptable reason for the whole of the delay, particularly given the application was lodged some 7 days after her return to Australia.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of her dismissal from the time it took effect on 22 June 2023. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant engaged in communication with the Respondent in the form of a request to provide ‘evidence’ to support the comments the Respondent had made in a performance improvement report it had prepared in relation to the Applicant. In her email, the Applicant indicated she considered the feedback about her performance to be “unfair and unjust”.
While the Applicant relied on the steps she took to obtain legal advice, there is no evidence to suggest the Respondent was aware of such steps.
Overall, this criterion weighs slightly in favour of a finding that there are exceptional circumstances.
Prejudice to the employer
The Respondent submitted it will be prejudiced if an extension is granted because it was entitled to assume after 3 weeks that the dismissal was uncontested and it was able to make alternative arrangements for the duties the Applicant performed to be performed by someone else. However, in the absence of any specific evidence as to such prejudice, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant contends her dismissal was unfair and disputes the contents of the performance improvement plan she had been placed on.
The Respondent contends it had a valid reason to dismiss the Applicant and followed a fair process in effecting the dismissal.
Based on the limited evidence before the Commission, it is not possible to form a view about the merits of the application. Accordingly, this is a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
The Respondent submitted that this criterion should weigh against the granting of an extension of time because it would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
I consider this to be a neutral consideration in the present matter.
Conclusion
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, either when the various circumstances are considered individually or together. 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 394(3).
It is unnecessary to deal with the Respondent’s jurisdictional objection as to whether the Applicant met the minimum employment period given I have decided not to extend time for the application to proceed.
Accordingly, this application is dismissed.
DEPUTY PRESIDENT
Appearances:
F Patterson on her own behalf.
D Cross of Australian Industry Group for Hogarth Australia Pty Ltd.
Hearing details:
2023.
By telephone:
September 6.
[1] See Herc v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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