Jenna Lappalainen v Brophy Family Trust T/A Total Health - Thermal Imaging

[2017] FWC 1068

[2017] FWC 1068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jenna Lappalainen
v
Brophy Family Trust T/A Total Health - Thermal Imaging
(C2017/284)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] Mrs Jenna Lappalainen alleged that the termination of her employment by the Brophy Family Trust trading as Total Health – Thermal Imaging was in breach of the general protections provisions of the Fair Work Act 2009 (Cth.). The Trust denies the allegation and says that Mrs Lappalainen was not dismissed.

[2] The Trust sought permission to be represented by a lawyer. Mrs Lappalainen had filed some material in accordance with the directions but that material did not address the issues that needed to be considered in an extension of time hearing. As a result, she filed additional material the evening before the hearing, which the solicitor for the Trust had not had an opportunity to consider before the hearing. It was submitted that the disorganized nature of the material added complexity to the matters before the Commission. Mrs Lappalainen opposed the granting of permission. I determined to grant permission for the Trust to be legally represented. I accepted their submission that the need to take oral evidence added some complexity such that permitting the Trust to be represented enabled the matter to be dealt with more efficiently.

[3] Given Mrs Lappalainen’s dismissal took effect on 23 December 2016, her general protections application lodged on 17 January 2017 was not made within 21 days of the date the dismissal took effect.

[4] The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench 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]

(a) the reason for the delay;

[6] Mrs Lappalainen says that after receiving text messages and phone calls from Mrs Deidre Brophy between 28 December 2016 and 12 January 2017, she decided to contact two law firms which then asked her to forward to them all the relevant information. She said she first called the law firms on 9 January 2016 but they were not open. She said she contacted the Legal Aid office but they were also closed. She said that she looked at the Commission’s website. She said she decided that she wanted legal advice before she made the application. She was told on 16 January 2017 that it would be more cost effective to represent herself and on 17 January 2017 Mrs Lappalainen lodged the application form. There was no explanation as to why Mrs Lappalainen took no steps prior to 9 January 2017 to pursue her claim. She was due to file her application on 13 January 2016 but because this fell on a Saturday she had until 15 January to file her application within the 21 day time limit.

[7] It is not unusual for there to be a delay in obtaining legal advice particularly over the Christmas/New Year period when legal offices are closed. Mrs Lappalainen said she went to the Commission’s website. The website provides extensive information about both unfair dismissals and general protections claims and the application form which is available on the website is not complex. The website advises employees of the 21 day time limit. Mrs Lappalainen said she was aware of this but still wanted to obtain advice before she lodged her application. While wanting to obtain legal advice before lodging the application is not unreasonable given the short time period set by the Act to lodge applications, applicants should not delay lodging applications in circumstances where the delay would cause the application to be out of time.

[8] I am not satisfied that Mrs Lappalainen has a reasonable explanation for the delay in lodging her general protections claim.

[9] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[10] Mrs Lappalainen was aware of the dismissal when it took effect. She had the full 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[11] Mrs Lappalainen said she did not dispute the dismissal because she had health risks associated with her pregnancy. However, even if Mrs Lappalainen could not dispute the dismissal face to face, other avenues to dispute the dismissal were available to her, for example she could have sent an email or letter, but she did not. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[12] There was no evidence about any prejudice to the Trust. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[13] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 3

[14] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[15] Mrs Lappalainen says that she attended work on 23 December 2017 and was told to complete an employment separation certificate. She says she was told that due to her illness she was no longer required by the business. Mrs Lappalainen says she was pregnant at the time. Mrs Brophy said that Mrs Lappalainen initiated the termination by presenting her with a completed centrelink separation certificate. She denied making any comments about Mrs Lappalainen’s pregnancy.

[16] Mrs Lappalainen made allegations about conduct by Mrs Brophy that occurred after the termination. I am not able to make any findings in relation to those allegations. However, what occurred after the termination is not relevant to the merits of Mrs Lappalainen’s claim. Mrs Lappalainen also made allegations about unpaid wages. Again I am not able to make any findings in relation to those claims. It was not put that Mrs Lappalainen’s employment was terminated because she made a complaint about not being paid for the time she worked.

[17] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties particularly about what occurred on 23 December 2016 and, if Mrs Lappalainen was dismissed, whether she was dismissed because of her pregnancy.

[18] Mrs Lappalainen will need to establish that she was dismissed. If she does the Trust would bear the onus of establishing that her pregnancy was not one of the reasons for the dismissal. I find that Mrs Lappalainen’s claim is not unarguable and therefore this weighs in favour of a finding that there are exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[19] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[20] I am not satisfied that there are exceptional circumstances. I am not satisfied that Mrs Lappalainen had provided a reasonable explanation for the delay. This is not a case where the merit of the claim that she was dismissed because she was pregnant and the lack of prejudice outweigh the other criteria. I therefore decline to grant Ms Lappalainen an extension of time and her application is dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

R.Sheehy for the Respondent.

Hearing details:

2016.

Melbourne, by telephone:

22 February.

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid

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

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