Gail Coffey v Fair Repairs Pty Limited

[2020] FWC 2882

[2020] FWC 2882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gail Coffey
v
Fair Repairs Pty Limited
(U2020/6867)

DEPUTY PRESIDENT DEAN SYDNEY, 3 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

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

[2] The Applicant advised that she became aware on 24 April 2020 that her employment with Fair Repairs Pty Limited (the Respondent) had been terminated. Her unfair dismissal application was lodged on 19 May 2020.

[3] 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). For a dismissal to take effect, it must be communicated to the Applicant.

[4] Taking the commencement of the 21 day period as starting on the date she became aware of her dismissal, the application was filed outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under section 394(3).

[5] 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

[6] 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.

[7] 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

[8] 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

[9] The Applicant submitted that the reasons for the delay in filing her application was that she had been suffering from post traumatic stress disorder and anxiety and her condition got worsened after the dismissal. The Applicant claimed that she had not seen a doctor as she did not feel that she could leave her house.

[10] The reason given for the delay is not supported by any medical evidence. While I accept that the Applicant may have been stressed and anxious during some or all of the period of the delay, absent any medical evidence detailing the impact the illness had on the Applicant’s capacity to lodge the Application, I do not accept the explanation as preventing the Applicant from lodging the application on time.

[11] 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

[12] The Applicant became aware of the dismissal on 24 April 2020. I consider this factor to be neutral.

Action taken to dispute the dismissal

[13] The Applicant did not take any action to dispute her dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[14] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[15] The Act requires me to take into account the merits of the application in considering whether to extend time. There is no detailed material before me as to the merits of the application. As a result, it is not possible to make any assessment of the merits and accordingly I consider this criteria to be a neutral consideration.

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

[16] 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. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[17] 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. In my view, there are no exceptional circumstances in this case, 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719845>

 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]