Hall v Macmahon Contractors Pty Ltd

[2016] FWC 1025

[2016] FWC 1025

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Susan Hall
v
Macmahon Contractors Pty Ltd T/A Macmahon Holdings
(U2015/17005)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 17 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        Ms Susan Hall alleged that the termination of her employment by Macmahon

Contractors Pty Ltd on 10 November 2015 was unfair.

[2]        Her unfair dismissal application lodged on 22 December 2015 was not made within 21

days of the date of the dismissal.

[3]        The Fair Work Commission can extend time for the lodging of an unfair dismissal

application if it is satisfied that there are exceptional circumstances. In assessing whether

there are exceptional circumstances the Commission must have regard to certain matters.

Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion

to decide whether to extend time.

[4]        The meaning of "exceptional circumstances" was considered in Nulty v Blue Star

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Group Pty Ltd where the Full Bench said:

[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

[2016] FWC 1025

seen as producing a situation which is out of the ordinary course, unusual, special or

uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[5]        Ms Hall’s employment was terminated on 10 November 2015. The next day she flew

to Bali on a pre-organised holiday. When she returned to Perth she was advised by a former

work colleague that she had been offered her job, which she declined. As a result, Ms Hall

doubted that her redundancy was genuine and was advised to lodge an unfair dismissal

application.

[6]        On 17 November 2015, Ms Hall registered with the Fair Work Commission and

received an acknowledgement of her registration. She said that she thought she had lodged a

complaint.

[7]        On 23 November 2015, Ms Hall contacted her former boss to seek a reference and to

ask his opinion about how she should proceed with her complaint to the Commission. He

suggested that she contact Macmahon’s HR manager. She did not want to, instead her former

boss made the contact himself. As a consequence the HR Manger contacted her on 24

November 2015 but a mutually agreeable time could not be arranged until 4 December 2015.

[8]        On 4 December 2015, Ms Hall met the HR manager and explained that she thought

she had been unfairly dismissed. He told her he would review the matter and contact her in

due course. In her outline of argument she stated that she did not proceed with the application

within 21 days as the HR manager was reviewing the matter and she was fairly confident that

there would be a favourable outcome.

[9]        Ms Hall spoke to the HR manager again on 18 December 2015, who told her that the

decision to terminate her employment would not be reversed. She said she contacted the

Commission to ask about her application and was told that she had not filed an application she

had only registered with the e-filing system. She then filed an application with the

Commission. Ms Hall submitted that due to issues with her laptop and also with Wi-Fi in the

area it took her a considerable amount of time to complete the forms. To support her claim

she attached a photograph of a computer screen with a black mark covering part of the screen.

[10]      I am not satisfied that it was reasonable for Ms Hall to believe that she had lodged an

unfair dismissal application by registering on the Commission’s website. There was no

evidence that Ms Hall suffered any particular disability which prevented her from reading and

understanding the information on the Commission’s website. The e-filing webpage advises

new users that they must register to use the e-filing service. It advises that the forms need to

be downloaded and saved from the Commission’s website. The e-filing webpage provides

detailed instructions about how to complete the necessary forms. The e-filing registration does

not require a registrant to provide any details about the nature of the complaint; the name of

the respondent or any other details. The e-filing receipt makes no reference to an application.

[11]      Ms Hall decided to await the outcome of the review before she completed the

application form. She said in the hearing that she was still deciding if she was going ahead

with the claim. Once she was made aware that the review was unsuccessful she took another

four days to lodge the application. Even accepting her computer and Wi-Fi difficulties, I do

not accept that it was reasonable in circumstances where her application was already late that
[2016] FWC 1025

she took another four days to complete the form and lodge it with the Commission. An

employee, who awaits the outcome of a review, before progressing a claim, takes the risk that

the claim will be lodged out of time. To have any chance of succeeding in an extension of

time application the employee must act promptly once the review is completed.

[12]      This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[13]      Ms Hall was aware of the dismissal when it took effect. She had the full 21 days to

lodge her application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[14]      Ms Hall took no action to dispute her dismissal at the time. However once she became

aware that her job had been offered to another person, she doubted the genuineness of her

redundancy. She did, after being contacted by the HR Manager from Macmahon, seek a

review. This weighs in favour of a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[15]      It was submitted that Macmahon’s would suffer prejudice because another employee

was made redundant at the same time and that employee would be encouraged to make an out

of time application. It further pointed to the additional costs it would incur in having to defend

this matter. Any prejudice suffered by Macmahon’s is not sufficient as to weigh against a

finding that there are exceptional circumstances.

(e) the merits of the application;

[16]      Ms Hall submitted that this was not a genuine redundancy because Macmahon had

identified that her work needed to be done and a trainee was being promoted into her position.

Further, she submitted that she was selected for redundancy because of her age. Macmahon

submitted that this was a genuine redundancy. It submitted that the work performed by Ms

Hall had been reallocated to the remaining administrative staff.

[17]      I am not able to make any assessment of the merits as there are factual disputes

between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[18]      No relevant submissions were made on this criterion. I consider it to be neutral.

Conclusion

[19]      I am not satisfied that there are exceptional circumstances. I am not satisfied that Ms

Hall had a reasonable explanation for the whole of the delay. I have found her belief that she

had lodged an application when she registered with the Commission to be unreasonable. I

further was not satisfied that it was reasonable for her to take four days, after finding out the

review was unsuccessful, to lodge her application.
[2016] FWC 1025

[20]      The criteria that weigh in favour of a finding of exceptional circumstances are not such

as to outweigh the lack of a reasonable explanation for the delay. An extension of time will

not be granted and the matter must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

S Hall on her own behalf.

J Elder and J Mackie on behalf of the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

8 February.

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[2011] FWAFB 975