Jasmin Farrell v Epic Hair Designs

[2019] FWC 213

[2019] FWC 213

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Jasmin Farrell
v
Epic Hair Designs
(C2018/6497)

COMMISSIONER CIRKOVIC MELBOURNE, 15 JANUARY 2019

Application to deal with contraventions involving dismissal.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 15 January 2019. Ms Farrell has made an application pursuant to s 365 of the Fair Work Act 2009 (“the Act”) for the Fair Work Commission (“the Commission”) to deal with a dispute involving contraventions relating to her dismissal. It is a dismissal of the Applicant said to have occurred for performance related reasons, with effect on 19 October 2018. Ms Farrell lodged her application on 15 November 2018 with the result that the application was outside of the time prescribed in s 366(1) of the Act.

[2] Section 366(2) allows for the Commission to allow a further period within which such an application is to be made if the Commission is satisfied there are exceptional circumstances, taking into account the reason for the delay, any action taken by Ms Farrell to dispute her dismissal, any prejudice including prejudice caused by the delay which might be suffered by the employer, the merits of her application, and fairness as between Ms Farrell and other persons in a like position.

[3] Ms Farrell stated her reasons for the delay, which were also set out in her written submissions in the proceeding. Ms Farrell stated that she ‘had everything ready to go’ but encountered various issues with technology, meaning that she needed to post her application in hardcopy, resulting in its lodgement in the Fair Work Commission out of time. The various issues were:

•  not being able to find a scanner that would scan her materials to a computer;

•  having issues with printers;

•  none of the necessary technology working.

[4] She also submitted that her lack of income prevented her from ‘having it done’ and that the delay in post time between posting the application and its receipt by the Fair Work Commission were reasons for the delay.

[5] The Applicant stated that she was aware of the 21 day time limit. She concedes that the application was “complete” earlier but that on the day of intended filing she encountered the issues described above.

[6] The Applicant does not offer a reasonable explanation for failing to complete and lodge her application within the required period. The application on its face makes clear the importance of the time limit. On the first page of the Form F8, under the heading “[l]odging your completed form”, it states, “Lodge your application along with any supporting documents with the Commission. Your application (Form F8) must be lodged within 21 calendar days after the dismissal took effect.”

[7] Ultimately, I am not satisfied that the reasons relied on by the Applicant, either when considered alone or when considered together, provide a reasonable explanation for the delay.

[8] Given this conclusion, this criterion weighs against a finding that there are exceptional circumstances.

[9] Turning then to the question of the action taken by the Applicant to dispute her dismissal, in her written material, Ms Farrell states that she attempted to challenge the Respondent’s findings. That is a factor that weighs in favour of granting an extension of time.

[10] With respect to the question of prejudice, the Respondent has argued that it will be prejudiced. While I have considered the submission of the Respondent, I do not consider that of itself equates to prejudice. Given the delay was only six days, I do not believe if an extension of time was granted the Respondent would suffer any prejudice beyond the ordinary inconvenience of defending a claim. I find this criterion neutral in this matter.

[11] As to the merits of the application, both parties have filed materials in their respective applications and responses. I note that the allegations as to the contravention of general protections provisions are disputed by the Respondent. In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. I have not done so. I find this criterion neutral in this matter.

[12] As to fairness between the Applicant and persons in a similar position, the Applicant states in her written material that she “wasn’t told about any problems at all, just called for a meeting and they don’t want to continue with me, I find that unfair and bullied through the whole time of my employment”. I find this criterion to be neutral in this matter.

[13] It is clear from the structure of s 366(2) that in assessing whether there are exceptional circumstances, account needs to be taken of all the matters. Individual matters, when viewed in isolation might not be particularly significant, and so it is necessary to look at matters collectively and to ask whether collectively the circumstances are out of the ordinary, unusual, special or uncommon, even though when viewed individually the circumstances might not so be described.

[14] Having considered all of the factors in s 366(2), I am not satisfied that there are exceptional circumstances warranting the granting under s 366(2) of a further period for the making of an application. Accordingly the application is dismissed. An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr J Farrell, self-represented.

Mr B Mann, on behalf of the Respondent.

Hearing details:

2018

15 January (via telephone)

Final written submission:

Applicant’s outline of argument: Extension of time (filed 19 December 2018)

Respondent’s outline of argument: Extension of time (filed 20 December 2018)

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