Heather Williams v OzCare

[2015] FWC 8505

[2015] FWC 8505

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Heather Williams
v
OzCare
(U2015/12286)

COMMISSIONER JOHNS SYDNEY, 15 DECEMBER 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] On 8 December 2015 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Mrs Heather Williams (applicant) and dismissing her application for an unfair dismissal remedy.

[2] On 8 December 2015 the applicant requested reasons for that decision. These are those reasons.
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3

[2] This decision is about whether the Commission should allow the applicant a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her:

a) application was lodged on 14 October 2015,
b) that being 56 days after her employment was terminated by OzCare (respondent) on 19 August 2015.

The jurisdictional objection

[3] On 19 October 2015, the Commission wrote to the applicant, outlining the matters the Commission was required to consider by the FW Act and asked her to provide a statement addressing those matters within 14 days.
[4] Accordingly, the matter proceeded by way of a jurisdictional hearing because the application was 35 days late.
[5] On 28 October 2015 the applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the applicant says that, although the termination took effect on 19 August 2015:

a) She had to travel to the United Kingdom (UK) to attend to her sick mother as a matter of urgency;
b) Upon her return from the UK she was providing advice and assistance to her step daughter with her medical issues; and

c) She was only able to give consideration to the circumstances surrounding her dismissal in the weeks after her return from the UK.

[6] On 24 November 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent says:

a) There was a period of 20 days prior to the applicant departing for the UK during which time an application could have been made;

b) 12 days elapsed between the applicant’s return and her filing of the application; and

c) The reasons for the delay advanced by the applicant do not constitute exceptional circumstances.

The jurisdictional hearing
[7] The applicant and respondent consented to the matter being dealt with on the papers.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  5

Consideration
Paragraph 394(3)(a) - The reason for the delay
[10] It is undisputable that there were 56 days between when the termination of the applicant’s employment took effect and when a proper application was filed with the Commission.
[11] The applicant says that the primary reason for the delay was her mother’s ill health and the need for her to travel to the UK to attend to her mother’s care. She further submitted that upon her return to Australia her step-daughter had health concerns and she was providing support and assistance to her during this time.

[12] The respondent correctly observed that there were a number of days before the applicant left Australia in which she could have made an in-time application for unfair dismissal remedy. There is no acceptable explanation for her non-action during that time. While sympathetic to the applicant’s case, the illness of a relative (even one overseas) is regularly and routinely experienced by many people. It does not disable them from attending to their own pressing affairs. There was nothing exceptional in the applicant’s excuse.
[13] This factor weighed against of granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[14] It is uncontested that the applicant first became aware of the dismissal on 19 August 2015.
[15] This factor weighed against of granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[16] The applicant did not indicate that she took any action to dispute the dismissal aside from the filing of this application.

[17] The lack of action taken by the applicant weighed against granting her a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[18] The respondent accepted that there was no significant prejudice caused by the application being filed 35 days late.
[19] Prejudice to the respondent was a neutral factor in considering whether to grant the extension of time.
Paragraph 394(3)(e) - The merits of the application
[20] In the matter of Kornicki v Telstra-Network Technology Group 6the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 7

[21] The Commission, as presently constituted, notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.” 8

[22] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[23] The substantive factual contest between the applicant and the respondent is whether the termination of the applicant’s employment was a case of genuine redundancy.

[24] If the applicant can establish that there were suitable redeployment options available then she may be able to establish that the termination of her employment was harsh, unjust or unreasonable and, consequently, unfair. In this regard the applicant’s case is not without merit or lacking in any substance.

[25] Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting her a further period to make her application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[26] The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
[27] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[28] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).
[29] The application for an extension of time was refused. The jurisdictional objection was upheld and the substantive application for an unfair dismissal remedy was dismissed.
[30] An Order to this effect was issued on 8 December 2015. 9

COMMISSIONER

 1   PR574864.

 2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 3 Section 394(3) FW Act.

 4 [2011] 203 IR 1

 5 Above note at [13].

 6   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 7   Ibid.

 8 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 9   PR574864.

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<Price code C, PR574869>