Janice Noller v Harvey Health and Community Services Group Inc

[2019] FWC 7210

[2019] FWC 7210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Janice Noller
v
Harvey Health and Community Services Group Inc
(C2019/4873)

DEPUTY PRESIDENT BOYCE SYDNEY, 17 OCTOBER 2019

Application to deal with contraventions involving dismissal — application filed out of time — reasonable explanation for delay — exceptional circumstances — extension of time granted.

[1] On 18 June 2019, Ms Janice Noller (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by filing a Form F8 with the Commission’s Registry in Perth. The Applicant claims that her employment with Harvey Health and Community Services Group Inc (Respondent) was terminated at the initiative of the Respondent on 20 May 2019 in contravention of the General Protections provisions of the Act.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The Applicant acknowledges that she lodged her application eight days outside of the statutory time limit. To be within time, the Applicant should have lodged her Application on or before 11 June 2019.

[3] On 17 October 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge her Application. I have determined to grant the Applicant an extension of time to file her Application. These are the reasons for that decision.

Matters to be taken into account

[4] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[5] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2 A decision whether to extend time under s.366(2) involves the exercise of a discretion.3

[6] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  4 (Nulty)as follows:

“[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.”

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” (emphasis added)

[7] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 5

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[8] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[9] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[10] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged.

[11] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7 

[12] The Applicant submitted that the reason for the delay in lodging her Application was because she was advised by a member of the Commission’s General Protection’s Team that her original application (being a Form F8C filed pursuant to a s.372 matter) should be withdrawn, and an F8 Form filed instead. The Applicant correctly submits that the Form F8C was filed within the 21-day period required (on 10 June 2019). I note that both the Form 8C and the Form F8 make substantively similar allegations of fact and law against the Respondent.

[13] I find the reason for the delay proffered by the Applicant to be credible and reasonable. It weighs in favour of an extension of time being granted in this matter.

Action taken by the Applicant to dispute the dismissal

[14] This factor weighs in favour of the grant of an extension of time given the Form 8C and the Form F8 make substantively similar allegations of fact and law against the Respondent, and the Form F8C was filed within the 21-day period following the Applicant’s termination.

Prejudice to the employer

[15] This issue was not addressed by either party at the hearing. I consider it a neutral consideration.

Merits of the application

[16] The Respondent submits that there was no “dismissal” within the meaning of the Act. The Respondent submits that the Applicant resigned of her own accord. The Respondent’s case, if accepted, means that the Respondent has no liability to the Applicant under s.365 of the Act, and so the Applicant has no prospect of success in her claim at all.

[17] Notwithstanding the Respondent’s seemingly valid arguments as to jurisdiction and the merits of the Applicant’s claim, it is not my role in an extension of time request to make any conclusive determination as to the merits of an applicant’s claim. I do not do so. The merits of the Applicant’s case are therefore a neutral consideration in this matter.

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

[18] This issue was not addressed by either party at the hearing. I consider it a neutral consideration.

Conclusion

[19] The Application has been lodged eight days out of time in circumstances where the Applicant filed a wrong form within the 21-day time limit period.

[20] As is evident from the analysis above, the matters that were the subject of evidence and submissions at the hearing weigh in favour of a conclusion that there are exceptional circumstances. None of the factors weigh against such a conclusion. I am persuaded therefore that there are indeed exceptional circumstances warranting an extension of time in this matter.

[21] I not aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[22] I note that the Respondent ultimately withdrew its opposition to an extension of time being granted in this matter (by way of oral concession at the hearing).

[23] I will therefore allow the Applicant a further time period within which to lodge her Application. The Application may be lodged by 18 June 2019.

[24] The Application will be progressed by way of a conciliation conference at a time and date to be advised by the Registry.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for herself.

Ms V Gunn appeared for the Respondent

Hearing details:

The matter was heard in Sydney on 17 October 2019 (with videolink to Perth).

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 3   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 4   [2011] FWAFB 975.

 5   [2019] FWCFB 2384 at [16] – [20].

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 7   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.