Jacqueline Rhonda Hossack v Hear Data Pty Ltd T/A Audiometric and Acoustic Services

[2017] FWC 6080

[2017] FWC 6080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Jacqueline Rhonda Hossack
v
Hear Data Pty Ltd T/A Audiometric and Acoustic Services
(C2017/5078)

COMMISSIONER CIRKOVIC MELBOURNE, 18 DECEMBER 2017

Application to deal with contraventions involving dismissal.

[1] On 12 September 2017, Mrs Jacqueline Rhonda Hossack (Applicant) lodged a general protections application (application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Hear Data Pty Ltd T/A Audiometric and Acoustic Services (Respondent).

[2] The Applicant commenced employment with the Respondent in August 2008. 1

[3] There is no dispute between the parties, and I am satisfied on the evidence, that the Applicant was dismissed by the Respondent on 18 July 2017 and the dismissal took effect on that day. 2

[4] Section 366 of the Act provides that a general protections application involving dismissal must be made within 21 days of the dismissal taking effect, or within such further period as the Commission allows under s.366(2). From the dates outlined above, it is apparent that Mrs Hossack’s application was lodged some 35 days out of time.

[5] In this decision, I have considered whether an extension of time should be afforded to Mrs Hossack for the lodgement of her application and, for the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting such an extension.

Alleged Contravention

[6] The Applicant submits that she was dismissed by the Respondent by way of handwritten letter handed to her by Mr Richard Unkles, its Director, whilst she was on sick leave. Mrs Hossack’s application discloses alleged breaches of ss.340 and 352 of the Act.

Legislative scheme

[7] Section 366(1) of the Act provides the following in relation to the lodgement of an general protections application involving dismissal:

(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).

[8] Section 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances for the delay. The Commission, in considering whether exceptional circumstances exist, must take into account the following factors:

(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.

[9] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 3where the Full Bench, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, 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 seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days of the date of termination taking effect, or within a further period allowed by the Commission. The words must be made are not defined in the Act, but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 4

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, 5 which, although concerned with an unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 6 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”[Endnotes not reproduced]

Background

[13] On 7 August 2017, the Applicant lodged an unfair dismissal application with the Commission pursuant to s.394 of the Act.

[14] The matter was listed for conciliation on 1 September 2017 and the Applicant filed an F50 Notice of Discontinuance discontinuing her unfair dismissal application on 6 September 2017.

[15] On 12 September 2017, the Applicant filed her general protections application.

[16] On 22 September 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of an outline of argument: extension of time. The matter was listed for hearing via telephone on 12 October 2017.

[17] The Applicant was represented by Mr Andrew Hossack, her support person. The Respondent was self-represented, with Mr Unkles appearing at the hearing.

[18] At the hearing, evidence for the Applicant was given by:

•  Mrs Hossack, the Applicant.

[19] Evidence for the Respondent was given by:

•  Mr Unkles, Director.

Matters to be taken into account pursuant to s.366(2)

[20] 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

[21] The Applicant submits that the reason for filing her application out of time is that following the unfair dismissal conciliation conference on 1 September 2017, the Applicant was provided with a 3 day cooling off period where she was to decide what she wanted to do. The Applicant submits that within this time, she sought legal advice, and that she was advised to file a general protections application because she “would be better off.” 7

[22] The Applicant further submits that she was advised by the Commission prior to filing either application to use the unfair dismissal form. The Applicant submits that she “should have been given an option at that time to go either that way or go to the other way.” 8 Mrs Hassock’s written material elaborates as follows:

“I lodged an Unfair Dismissal claim on advice from a Fair Work Commission member within 21 days of my dismissal. The advice from FWC basically outlined the process for making an Unfair Dismissal claim and paying the lodgement fee. The Fair Work Commission did not advise me that an alternate application was possible by way of a General Protections application and did not explain to me the limits in terms of compensation in an Unfair Dismissal claim. I am now aware that a General Protections application is the more appropriate application and I seek an extension of time to file this application. The exceptional circumstances are that the Fair Work Commission instructed me to make an unfair dismissal application when it is not supposed to provide advice and I originally acted within 21 days.” 9

[23] The Respondent submits that the Applicant is in effect seeking to have “two bites of the cherry.” The Respondent further submits that acting on legal advice is not exceptional circumstances. 10

[24] At the telephone hearing on 12 October 2017, I put it to the Applicant that the Commission is not permitted to give advice to parties and that Commission staff are only permitted to give advice as to process. 11 The Applicant conceded that she had accessed the Commission website and was aware of the 21 day time frame in which she had to file her application.

[25] For this consideration there must be an acceptable reason for the delay 12 and this must be for the whole period that the application was delayed.13 It was at all times open to the Applicant to lodge her general protections application. It is incumbent on an applicant to examine available options and remedies and to determine which course of action to take. That she chose to lodge an unfair dismissal application, discontinue and then file a general protections application cannot be seen as an exceptional circumstance. While I acknowledge that Mrs Hossack had lodged her unfair dismissal application within the required 21 day timeframe, and in so doing took some action to dispute her termination, that it progressed to the point of a conciliation conference and cooling-off period for her to seek legal advice and opt to pursue a general protections application militates against her. This is not a case of an immediate attempt to rectify an application lodged in error, nor does it discharge the Applicant’s onus to determine the most suitable application for her. I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

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

[26] In the Applicant’s Outline of Argument: Extension of Time, in response to question 1e ‘When you became aware of the dismissal, did you question or argue against the dismissal after you became aware of it?’, the Applicant states that she took action to dispute her dismissal by way of filing an unfair dismissal application. 14

[27] She does not make any further submissions about any attempt to dispute the dismissal. The Respondent did not make any submissions on this point.

[28] On the materials before me, there is nothing which demonstrates the Applicant took action to contest her dismissal, other than by lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

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

[29] The Applicant submits that the Respondent has not been prejudiced by the delay. 15

[30] The Respondent does not submit it has been prejudiced by the delay and that “in actual fact having had more time to do more research is actually advantageous” to their case. 16

[31] Accordingly, I consider this factor to be a neutral consideration.
(d) Merits of the application

[32] The Respondent submits that the Applicant was dismissed for reasons involving the unauthorised use of the Respondent’s chequebook, taking unauthorised leave, and makes allegations of theft and fraud. The Applicant denies the allegations made by the Respondent. 17

[33] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.” 18

[34] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 19 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the merits of the substantive application.20 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[35] The Applicant submits that “most other people in a similar situation would be afforded the right of innocence until proven guilty.” 21

[36] The Respondent submits that they are unable to compare the Applicant’s situation as no other employee of the Respondent has been in the Applicant’s position at their firm. 22

[37] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 23

[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 24 considered this criterion and said (at 41):

“[41]…Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”

[39] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[40] In establishing whether exceptional circumstances exist the Commission must take into account the criteria listed in s.366(2) of the Act. The expression “exceptional circumstances,” while not specifically defined in the Act, has been accepted in this Commission to encompass circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered. 25

A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances, and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 26

[41] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of Mrs Hossack’s general protections application under s.366(2). Accordingly, the application is dismissed.

[42] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr Andrew Hossack for the Applicant.

Mr Richard Unkles for the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

October 12.

 1   Transcript PN101.

 2   Ibid PN177-178.

 3   [2011] FWAFB 975.

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[2010] FWCFB 7251.

 5   [2016] FWCFB 349.

 6   [2015] FWCFB 287.

 7   Transcript PN120-125, PN136.

 8   Ibid PN163.

 9   Applicant’s Outline of argument: Extension of Time, item 1d.

 10   Transcript PN189-190.

 11   Ibid PN162.

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 13   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

 14   Applicant’s Outline of argument: Extension of Time, item 1e.

 15   Ibid, item 1f.

 16   Transcript PN194.

 17   Ibid PN179-184;Applicant’s Outline of argument: Extension of Time, item 1g.

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

 19   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

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

 21   Applicant’s Outline of argument: Extension of Time, item 1i.

 22   Respondent’s Outline of argument: Extension of time, 29 September 2017, item 1f.

 23   Wilson v Woolworths [2010] FWA 2480 [24]-[29].

 24   [2016] FWC 6963 [41].

 25   [2011] FWAFB 975 [13].

 26   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [15].

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