Jacinta Pamamull v Co.As.It. Community Services Ltd

[2021] FWC 5075

[2021] FWC 5075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jacinta Pamamull
v
Co.As.It. Community Services Ltd
(C2021/3517)

DEPUTY PRESIDENT CROSS SYDNEY, 17 AUGUST 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] Ms Jacinta Pamamull (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Co.As.It Pty Ltd (the Respondent) in contravention of Part 3-1 of the FW Act (the Application). The Respondent has objected to the Application on the ground that the Application is out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

[2] Section 366(1) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[3] The parties are in dispute about when the dismissal took effect.

[4] The Applicant submits that the dismissal took effect on 28 May 2021, because, while the termination meeting occurred on 27 May 2021, the Applicant laundered her uniforms on 28 May 2021, before returning those uniforms and other property of the Respondent that same day.

[5] The Respondent submits that the dismissal in fact took effect on 27 May 2021, because that was the day of the termination meeting. While the Applicant was offered the opportunity to work out her one week period of notice, the Applicant declined that offer and left the workplace on the afternoon of 27 May 2021.

[6] Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact. 1 Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.2

[7] I find that it was clearly communicated to the Applicant by written correspondence on 27 May 2021, that the dismissal took effect that day. Laundering uniforms and returning property could in no way be seen as performing work for the Respondent.

[8] Having regard to the matters I have referred to above, I find that the dismissal took effect on 27 May 2021.

Was the Application made within 21 days after the dismissal took effect?

[9] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 3

[10] As I found above, the dismissal took effect on 27 May 2021. The final day of the 21 day period was therefore 17 June 2021, and ended at midnight on that day. The Application was made on 18 June 2021. The Application was made 1 day late.

[11] As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.

Was the Application made within such further period as the Commission allows?

[12] Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.

[13] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 4

[14] I set out my consideration of each matter below.

Reason for the delay

[15] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 June 2021. The delay is the period commencing immediately after that time until 18 June 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 5

[16] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 6

[17] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay. 7

Submissions and evidence

[18] The Applicant submitted that the delay was for the following reasons:

•  Illness – On 26 May 2021, the Applicant advised the Respondent she had injured her back. That back pain escalated to an excruciating level which resulted in the Applicant attending a Specialist Chiropractor on Tuesday 8th June and 19th June, with the pain being relieved after a Hospital admission and Operation on Wednesday 30th June 2021. A medical certificate certifying the Applicant as unfit for work from Monday 28 June to Thursday 2 July 2021 was tendered in evidence; and

•  Homelessness – The day after the dismissal the Applicant had to vacate her residence and for at least the following 21 days was homeless.

[19] In relation to the reason for the delay, the Respondent submitted that while the Applicant asserted that she became “homeless” in the week of her dismissal, the only evidence provided was a series of screenshots, taken on unknown dates from Facebook Marketplace, showing properties for rent. As to the Applicant’s illness, which was not contested, the Respondent noted that there were only two Chiropractor visits, and only one prior to the filing of the Application. Further, the hospital admission and operation occurred on 30 June 2021, twelve days after the Application was made.

[20] In the hearing of the application to extend time, the Applicant:

(a) Stated that after her dismissal she applied for approximately 20 jobs a day, though she clarified that such applications were simply generic applications made from her telephone;

(b) Said all her energies and efforts were directed to finding employment;

(c) Stated “Finding a home was more important than chasing this matter;” and

(d) Referred to Maslow’s hierarchy of needs, 8 a theory of motivation which states that five categories of human needs dictate an individual’s behaviour, and stated the need to find a home and employment dictated her conduct in pursuing those goals at the expense of pursuing this Application.

Findings

[21] Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs against the Applicant in this matter. Unlike an authority relied upon by the Applicant, 9 she was not suffering from significant impairment. It is clear that the Applicant could have pursued the Application within time if she chose, but instead prioritised other issues.

[22] While there were numerous references in the hearing to the application being “only one day late,” I note that such a small length of time does not obviate the need for acceptable explanation of the delay, and that numerous decisions of the Commission have refused to allow a one day extension in time to file an application. 10

What action was taken by the Applicant to dispute the dismissal?

[23] It is not in dispute that, other than by saying in the dismissal meeting of 27 May 2021 that the dismissal was “unfair,” that the Applicant did not take any actions to dispute her dismissal prior to making the application on 18 June 2021.

[24] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal. I consider this factor is a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[25] The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.

What are the merits of the Application?

[26] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal 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).” 11

[27] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[28] In the circumstances, I find that it is not possible to make an assessment of the merits of the Application.

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

[29] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[30] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

[31] 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. 12 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.13

[32] It is clear that the factor that has been accorded significant weight in this matter is the absence of an acceptable reason for the delay. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist. 14

[33] Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. 15

[34] Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application. 16

[35] As found above, the Applicant was not prevented or impeded from filing the Application within time. She simply chose to prioritise other issues to the exclusion of pursuit of the Application.

[36] Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.

Conclusion

[37] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms J Pamamull, on her own behalf.
Mr G Muir, for the Respondent.

Hearing details:

2021.
Sydney (via teleconference)
August 5.

Printed by authority of the Commonwealth Government Printer

<PR732894>

 1   Siagian v Sanel Pty Ltd (1994) 54 IR 185.

 2   Siagian v Sanel Pty Ltd (1994) 54 IR 185.

 3   Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 5   Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

 8   A H Maslow ‘A theory of human motivation’ (1943) 50 Psychological Review 370–96. 

 9   Ellis v Melton Shire Council[2012] FWA 1033.

 10   See for example. Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd [2021] FWC 530.

 11   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

 12   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 14   Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

 15   Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].

 16   Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].