Irene Tomaras v Bill & Toni's Italian Pty Ltd T/A Bill & Toni's Italian Restaurant / Cafe

[2016] FWC 787

[2016] FWC 787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Irene Tomaras
v
Bill & Toni’s Italian Pty Ltd T/A Bill & Toni’s Italian Restaurant / Cafe
(C2015/6685)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 5 FEBRUARY 2016

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed.

[1] Ms Irene Tomaras (the Applicant) made an application which was lodged with the Fair Work Commission (the Commission) on 23 November 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Bill & Toni’s Italian Pty Ltd T/A Bill and Toni’s Italian Restaurant/Cafe (the Respondent) on 26 October 2015 in contravention of the general protections provisions in the Act.

[2] As the application was lodged seven days outside the statutory timeframe for lodgement set out in s.366(1) of the Act, the Commission issued Directions on 2 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] The extension of time issue was the subject of a telephone hearing on 28 January 2016. At the telephone hearing, Ms Tomaras appeared on her own behalf, while Mr Paul Bailey appeared with permission for the Respondent. Ms Tomaras provided a witness statement in support of her application but was not required for cross examination.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Ms Tomaras commenced employment with the Respondent on 27 April 2015 as a Manager on duty for the lunch time period.

[6] Ms Tomaras contends that she was dismissed because she raised with the Respondent her concerns regarding a number of issues, including issues regarding work, health and safety, alleged underpayments, food handling/hygiene and taxation. In her application, Ms Tomaras contended that her dismissal was in contravention of all of the general protections provisions of the Act.

[7] The Respondent submitted that Ms Tomaras was dismissed for poor performance.

[8] More particularly, in her application Ms Tomaras stated, among other things, that she:

• was dismissed when a colleague reported to the Respondent that she was photographing her paperwork and other material;



• had kept records, documentation and photos in relation to a range of concerns that she had about the Respondent’s practices, some of which she had reported to external parties such as the local council;



• had never been provided any payslips, a group employment certificate or a separation certificate;



• was dismissed on the spot on false, misleading and incorrect grounds without any notice;



• was admonished in front of other staff and a customer following her dismissal; and



• had been threatened, bullied and harassed at work.

[9] As noted above, Ms Tomaras’ application was lodged with the Commission on 23 November 2015, seven days outside the statutory timeframe specified in s.366(1)(a) of the Act.

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] In her submissions, Ms Tomaras cited the following as reasons for the delay in lodging her application:

• she was acting without any legal advice or knowledge of the set procedures;



• her union had advised her on 10 November 2015 that it would not submit an application on her behalf; and



• she struggled to complete her application within the statutory timeframe as that period coincided with the concluding stages of her studies towards a Human Resources Diploma.

[13] Ms Tomaras described her circumstances as exceptional in the least and unfair.

[14] At the telephone hearing, Ms Tomaras reiterated the above reasons, adding that the period following her dismissal was a very difficult time for her as she was in the final stages of her human resources studies, was not sure where to go for assistance, was unable to get assistance from her union and was emotionally shocked. Ms Tomaras further submitted that she found her circumstances post-dismissal overwhelming, stating that while she strived to do everything she was unable to do so.

[15] The Respondent in its written submissions contended that Ms Tomaras had not proffered a satisfactory explanation as to why she did not lodge her application within the 21 day timeframe.

[16] At the telephone hearing the Respondent submitted that the circumstances in this case were not exceptional, highlighting that Ms Tomaras had conceded during the course of the telephone hearing that she was aware of the 21 day timeframe for lodging a general protections application from at least 10 November 2015. Further, Ms Tomaras had provided no reasonable explanation for the delay in lodging her application for the period 10 to 16 November 2015, the latter date being the last day of the 21 day statutory timefame. In response to Ms Tomaras’ submission that she was advised by her union on 10 November 2015 that it would not lodge an application on her behalf, the Respondent submitted that there was no representative error in this case and no evidence that Ms Tomaras had instructed her union to make an application on her behalf.

[17] With regarding to the circumstances in this case, I note that it is not uncommon for someone who has just lost their job to experience shock and distress. These emotions do not constitute exceptional circumstances. Further, in circumstances where Ms Tomaras conceded at the telephone hearing that she was aware from 10 November 2015 of the 21 day statutory timeframe for lodging a general protections application, it is difficult to comprehend why she did not lodge her application until 23 November 2015, i.e. 13 days later. While I accept that she may have been under some pressure as a result of her studies, I also note that many dismissed employees are able to meet the statutory timeframe despite having to familiarise themselves with the process of making an application while at the same time having to look for a new job and continue to undertake a range of day-to-day activities. Against that background, Ms Tomaras’ ignorance of the process for making an application and her study commitments do not appear to be exceptional.

[18] Also relevant is the decision by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 1 which determined that an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Ms Tomaras has provided a credible reason for the whole period of the delay.

[19] The above analysis does not support a finding of the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[20] Ms Tomaras stated in her written submissions that she contacted her union on the day that she was dismissed. Ms Tomaras reiterated this at the telephone hearing, adding that she made an appointment to meet with the union on 10 November 2015 at which time she was advised of the 21 day statutory timeframe and that the union would not be lodging an application on her behalf. Ms Tomaras further submitted that she also sought advice from the Marrickville Legal Centre within the statutory timeframe and was advised that she should lodge her application with the Commission.

[21] The Respondent submitted that there was no evidence of any action by Ms Tomaras to dispute her dismissal prior to lodging her application with the Commission.

[22] Based on the material before the Commission, it appears that while Ms Tomaras did seek advice regarding her circumstances, she did not take any action to dispute her dismissal with the Respondent prior to lodging her general protections application. This does not support a finding that there were exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[23] Ms Tomaras submitted that the Respondent would not be prejudiced should an extension of time be granted.

[24] The Respondent contended that it had already been prejudiced by having to devote time and resources to dealing with the extension of time issue. While I note the Respondent’s submission in this regard, this of itself does not constitute prejudice in the sense that the Respondent would be disadvantaged in defending the application as a result of the delay in lodging the application.

[25] I therefore consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[26] While in her submissions Ms Tomaras set out a number of concerns regarding the Respondent’s conduct (see paragraph [6] above), she provided no material or evidence to support her assertion that she was dismissed for raising her concerns both with the Respondent and external bodies.

[27] The Respondent submitted that no satisfactory case had been presented by Ms Tomaras to demonstrate that her dismissal was because of a proscribed reason, contending that Ms Tomaras was dismissed for poor performance. At the hearing, the Respondent submitted that Ms Tomaras has a grievance with the Respondent and that she was frustrated that her complaints were not taken seriously. As such, the Respondent contended that Ms Tomaras was seeking to have her grievances addressed before the Commission, adding that this was not a proper basis for making a general protections application. Further, the Respondent reiterated that Ms Tomaras was dismissed for poor performance and that she had failed to provide evidence to demonstrate a contravention of the general protections provisions of the Act.

[28] While it is clear that Ms Tomaras is aggrieved by her dismissal, in the absence of any material to substantiate her claim that she was dismissed because she raised a number of concerns with the Respondent and external bodies, I consider the merits of Ms Tomaras’ application to be poor.

[29] As such, the merits of the application do not support the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[30] Neither party addressed this consideration in their submissions.

[31] Against that background, I consider this factor to be a neutral consideration.

Conclusion

[32] The question of exceptional circumstances was dealt with in Nulty in the following way:

“[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.”

[33] The above analysis does not see any factors point to the existence of exceptional circumstances. Against that background, and both having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[34] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

I. Tomaras on her own behalf.

P. Bailey for the Respondent.

Hearing details:

2016.

Melbourne and Sydney (telephone hearing):

January 28.

 1 (2010) 197 IR 403 at 408-409

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