Francess Laine Bonifacio v Calibre Real Estate Pty Ltd
[2024] FWC 2151
•21 AUGUST 2024
| [2024] FWC 2151 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Francess Laine Bonifacio
v
Calibre Real Estate Pty Ltd
(C2024/3561)
| COMMISSIONER HUNT | BRISBANE, 21 AUGUST 2024 |
Application to deal with contraventions involving dismissal – first application made within 21-day time limit – incorrect advice given by Commission staff member to discontinue application and bring a new application – new application made two days out of time – extension of time granted.
Ms Francess Bonifacio made several applications under s.365 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) in May 2024. The applications are general protections disputes involving dismissal.
Ms Bonifacio was dismissed from her employment with Calibre Real Estate Pty Ltd (the Respondent) on 7 May 2024. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 28 May 2024.
Ms Bonifacio came to Australia from the Philippines when she was aged 22. She is now 29 years old.
On 26 May 2024 at 11:27am, Ms Bonifacio made her first general protections application, C2024/3456. She named the Respondent as the applicant, yet provided her details within the Form F8. On 29 May 2024, a Commission Client Services Representative made a telephone call to Ms Bonifacio. The Client Services Representative made the following file note:
“OBTC to A [number] regarding lodged application. A stated that she had lodged the
application, informed A that the app was lodged with her previous employer as the
applicant and that should be her. A stated that she didnt know she is the applicant and
her previous employer the R. A stated that she’ll send an updated form through.”
Clearly, this first application was made within the 21-day time limit.
Within the Commission, abbreviations are common, where an applicant is often referred to as ‘A’ or ‘the A’ and a respondent as ‘R’ or ‘the R’.
On 29 May 2024 at 9:47pm, Ms Bonifacio made a second general protections application, C2024/3560. It is in substantially the same form as the first general protections application, C2024/3456.
On 30 May 2024, Ms Bonifacio sent the following email to the Commission’s General Protections Team:
“Dear Team,
I hope you are well. I can confirm that I have completed the amended version of my application.
And I would like to thank you for calling me last night to give me some clarifications, greatly appreciated.
Please let me know if there’s any issues. Looking forward to hearing from you.”
On 30 May 2024, the same Client Services Representative who spoke with Ms Bonifacio on 29 May 2024 telephoned Ms Bonifacio. The Client Services Representative made the following file note on 30 May 2024:
“OBTC to A [number], regarding lodged application. I informed A that for her amended application to be updated, she will need to lodge a F1 form with the changes that will be presented before a member for approval. That it might be easier for her to lodge a new application. A advised that, this application be discontinued that she will lodge a new app. I informed A that a disco email for this app and updated version will be sent through, and she can lodge a new app either by email or OLS. I informed that this app will be disco’ed as discussed and A said yes.”
The Client Services Representative sent Ms Bonifacio a letter advising the application in C2024/3456 had been discontinued.
On 30 May 2024 at 9:52pm, Ms Bonifacio made a third general protections application, C2024/3561, this present application.
A Client Services Representative made a telephone call to Ms Bonifacio on 3 June 2024 and made the following file note:
“OBTC to A nominated telephone contact regarding Multiple application. A confirmed that she lodged a GP application on 25 May 2024 (C2024/3456 in time) but had completed it incorrectly and was told to lodge again. She then lodged a further GP
application on 29 May 2024 (C2024/3560) and again on 30 May 2024 (C2024/3561) both OOT. A has decided to progress the final application lodged as this had more
attachments”
A Client Services Representative sent Ms Bonifacio a letter on 3 June 2024 advising the application C2024/3560 had been discontinued.
Legislative requirements
Section 366 of the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The application was allocated to me to determine whether the application was made within the statutory timeframe and if it was not, whether an extension of time should be granted.
Hearing
Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A Hearing was convened by video using Microsoft Teams on 13 August 2024. Ms Bonifacio appeared and gave evidence on her own behalf. Mr Dane Moloney, paid agent of Human Outsouce was granted leave to appear for the Respondent. Mr Justin Hagen, Director of the Respondent was present for the Hearing.
It is noted that in the present application, Ms Bonifacio asserts that she was dismissed because of her race and an unnamed physical or mental disability.
At the Hearing, Ms Bonifacio confirmed that at no time had she made any complaint to the Respondent about being discriminated against because of her race. In respect of a claim of mental or physical disability, Ms Bonifacio stated that the dismissal had had an impact on her mental and physical health.
I took the parties through the considerations at s.366(2) of the Act. The Respondent did not assert that there was any prejudice to it by this present application having been made two days outside of the statutory time limit.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:
‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
‘23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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” in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’
[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.” [footnotes omitted].
For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]
Consideration
The reason for delay – s.366(2)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an explanation for any part of the delay will usually weight against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weight in an applicant’s favour, though it is ultimately a question of degree and insight.[6]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]
Ms Bonifacio made an application within time on 26 May 2024. While she incorrectly named the Respondent in the place of the applicant, she did insert her name and contact details below. Her error could have easily been amended at some future point.
Ms Bonifacio then made a second application. As is clear from her communication, she thought she was amending her first application. The Commission took it to be a second application.
Regrettably, Ms Bonifacio was given advice by a Commission member of staff on 30 May 2024 to discontinue the first two applications. The advice given by the Commission member of staff was inappropriate. An applicant with an application made within time should not be encouraged to discontinue their application and bring a substantially identical application, especially when that advice is given outside of the 21-day time limit. I have instructed my Associate to raise the matters in respect of Ms Bonifacio’s applications with the Commission’s Client Services Manager.
I am satisfied that the reason for the delay in bringing this present application two days out of time can be explained by the incorrect advice given by the Commission’s member of staff. If the incorrect advice had not been given, the application in C2024/3456 would have remained on foot and been filed in time.
The reason for the delay is, in my view, supportive of an extension of time being granted.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]
The first and second general protection applications were not served on the Respondent on account of having been withdrawn quickly after having been filed. Nevertheless, it is evident that Ms Bonifacio made every effort to take action to dispute within the statutory time limit, and in her first application, did so.
I therefore consider that Ms Bonifacio took action to dispute the dismissal with the Respondent. The action taken by Ms Bonifacio to contest her termination supports the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
The Respondent concedes and I accept that there would be little, if any, prejudice to the Respondent caused by the delay of two days. This supports the granting of an extension of time.
The merits of the application – s.366(2)(d)
It is well established that “it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[10]
Ms Bonifacio alleges she was dismissed on account of her race and the dismissal had an impact on her mental and physical wellbeing. Having heard from Ms Bonifacio at the Hearing and learning that she never raised any allegations in respect of her race with the Respondent during her almost six months of employment, I do not consider that simply because she asserts that she is the only person employed by the Respondent of Asian descent, she was dismissed because of her race.
On the face of it, it appears that Ms Bonifacio was dismissed within her six-month probationary period for poor performance, including her punctuality and customer complaints.
Ms Bonifacio’s assertion that the dismissal has impacted her mental and physical wellbeing is understandable, but she has not asserted that she was dismissed because she has any diagnosed mental or physical disability.
I do not consider, on the information before the Commission the merits in Ms Bonifacio’s application to support the granting of an extension of time.
Fairness as between the person and other persons in a like position – s.366(2)(e)
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[11] where it was said:
“...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
I am not satisfied that the criterion of fairness between Ms Bonifacio and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 366(2) of the Act, I am satisfied that there are exceptional circumstances in this case, when the various circumstances are considered individually or together. I am satisfied that I should exercise my discretion to allow a further period of time for Ms Bonifacio’s application to be made.
Accordingly, the jurisdictional objection is dismissed and the application will now proceed to conference before the Commission.
COMMISSIONER
Appearances:
F Bonifacio appeared for herself.
D Moloney of Human Outsource Pty Ltd t/a Human Outsource for the Respondent.
Hearing details:
2024.
Brisbane.
By Video using Microsoft Teams.
13 August.
[1] [2011] FWAFB 975.
[2] Smith v Canning Division of General Practice [2009] AIRC 959.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[7] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36].
[11] [2015] FWC 8885 at [29].
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