Jenny Weiss v Newcastle Permanent Building Society Limited

[2017] FWC 3358

[2017] FWC 3358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenny Weiss
v
Newcastle Permanent Building Society Limited
(U2017/4443)

COMMISSIONER SAUNDERS NEWCASTLE, 10 JULY 2017

Application for an unfair dismissal remedy – refusal of application to extend time

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (the Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Jenny Weiss (the applicant) a further period for her unfair dismissal application (the Application) to be made against the Newcastle Permanent Building Society Limited (the respondent) in circumstances where:

(a) her dismissal by the respondent took effect on 30 March 2017;

(b) the Application was made on 21 April 2017; and

(c) the 21 day period for the Application to be made expired on 20 April 2017.

The jurisdictional objection

[3] On 23 June 2017, a hearing was conducted in relation to the applicant’s application for an extension of time.

[4] The applicant tendered a number of documents and gave oral evidence in support of her application. The respondent made submissions, tendered documents, and called one witness, Ms Felicity Laczina, Head of People and Development.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

[8] Ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 5

Consideration

Paragraph 394(3)(a) - reason for the delay

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[10] There must be an acceptable reason for the delay in making the unfair dismissal application. 8

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 9

[12] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, 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. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“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.”

Relevant chronology of events

[13] There is no dispute that the applicant’s employment came to an end on 30 March 2017. The applicant was notified of her dismissal by the respondent in writing on 30 March 2017 and was advised that her dismissal was effective from that day.

[14] The applicant has a history of domestic violence with her ex-partner and had problems associated with this throughout the 21 day time period following her dismissal.

[15] On 7 April 2017, the applicant’s daughter had a court-ordered visit arranged with the applicant’s ex-partner. The applicant dropped her daughter off at the visit however the visit did not go well and resulted in the police being called. Later that day the applicant’s ex-partner showed up at her place of residence.

[16] On 11 April 2017, the applicant sent an email to Ms Kristy Ellen, an employee of the respondent, requesting policy documents that she intended to use for the preparation of her Application. After the applicant did not receive a response from Ms Ellen, the applicant emailed Ms Brooke Reynolds, Employee Relations and Safety Advisor for the respondent, requesting the same documents.

[17] On 12 April 2017, the applicant was required to attend a court-ordered Family Assessment with her ex-partner and his family, and her family.

[18] On 13 April 2017, Ms Reynolds responded to the applicant’s email advising her that ‘NPBS does not release policy documents to external parties or parties no longer employed by NPBS’.

[19] In the period between 14 April 2017 and 17 April 2017, which was Easter, the applicant’s ex-partner made approaches regarding an unscheduled visit with the applicant’s daughter and became aggressive, and threatened the applicant. The applicant’s ex-partner damaged the applicant’s property by throwing eggs at her house.

[20] On 20 April 2017, the applicant submitted to the respondent, via her union representative, a ‘letter of appeal’ regarding her dismissal. Included in this letter of appeal, the applicant wrote the following sentence:

“On receiving advice I view this matter as one of Unfair Dismissal and I am proceeding with enquiries in this regard concerning a timely application to the Fair Work Commission.”

[21] On 21 April 2017, the applicant lodged her Application with the Commission. The Application was made one day late.

Analysis of the chronology of events and reasons for delay

[22] In accordance with the principles summarised in paragraphs [9] to [12] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 20 April to 21 April 2017. However, the circumstances from the time of the dismissal (30 March 2017) 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.

[23] In addition to the matters referred to in the chronology of relevant events summarised in paragraphs [13] to [21] above, the applicant relies on the following reasons for the delay in filing her Application:

(a) the applicant adduced evidence of email requests from herself to employees of the respondent, requesting policies that she intended to use for the preparation of her Application;

(b) the applicant gave evidence that she was not provided with minutes of meetings between herself and the respondent, from 28 March and 30 March 2017. The applicant gave evidence that she intended to use those documents to prepare her Application, but that she was never provided with them;

(c) the applicant took considerable time preparing a detailed appeal to the respondent. The applicant gave evidence that it was the preparation of the internal appeal that delayed the preparation of her Application. The applicant also gave evidence that she believed the preparation of the Application to the Commission was more detailed and that it was this extra detail that caused an additional delay in filing her Application; and

(d) the applicant has suffered domestic violence in the past and continues to have problems associated with this. The applicant lives in an ongoing threatening environment and suffers considerable pressure and distress as a result of this.

[24] I am sympathetic to the applicant’s circumstances, particularly those in relation to the domestic violence the applicant has suffered, and the ongoing problems associated with it, including during the 21 day period following her dismissal. I am satisfied that the domestic violence related events and resultant distress caused to the applicant provide an adequate explanation for the applicant not being able to work on the preparation of her Application for a number of days during the 21 day period following her dismissal. However, there were a number of days during the 21 day period where I am satisfied that the applicant was not precluded from working on her Application by reason of domestic violence related matters. So much is clear from the fact that the applicant prepared and lodged a detailed internal appeal with the respondent within the 21 day timeframe.

[25] Although the applicant accepted that she was aware of the 21 day time limit, she has not, in my view, provided an adequate explanation as to why she was able to complete and lodge her detailed letter of appeal to the respondent within the 21 day period, but not file the Application within that time. I am not satisfied that any refusal by the respondent to provide documents to the applicant following her dismissal provides an adequate explanation for her delay in filing her Application. I find that this factor (s.394(3)(a)) weighs against granting the applicant an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[26] The applicant first became aware of her dismissal on 30 March 2017. That was the day the dismissal took effect. The applicant had 21 days after the dismissal on 30 March 2017 to make her Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[27] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 12

[28] The applicant’s letter of appeal that was provided to the respondent on 20 April 2017 shows that she made attempts to dispute her dismissal. In this letter the respondent was also put on notice that she would challenge the fairness of her dismissal. Although her appeal to the respondent was ultimately unsuccessful as she was not able to make use of the respondent’s disciplinary procedure after being terminated, it remains clear that the applicant did make a number of attempts to dispute her dismissal. This factor (s.394(3)(c)) weighs in favour of finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[29] Prejudice to the employer will weigh against granting an extension of time. 13 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.14

[30] A long delay gives rise “to a general presumption of prejudice”. 15

[31] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 16 No such evidence was adduced by the respondent in this case.

[32] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[33] In Kornicki v Telstra-Network Technology Group 17the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.” 18

[34] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 19 for the purpose of determining whether to grant an extension of time to the applicant to lodge her Application.

[35] I adopt this reasoning in relation to my consideration of the merits of the Application.

[36] The respondent submits that it had a valid reason for the termination of the applicant’s employment on the basis of the allegations set out in a letter provided to the applicant on 28 March 2017. The applicant denies certain allegations and claims that it was unfair for her to be dismissed.

[37] I am not able to make an assessment of the merits because there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 considered this criterion and said (at [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 or 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] Having taken into account the matters referred to in paragraphs [9] to [39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s overall circumstances were not out of the ordinary course, unusual, special or uncommon.

[41] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Weiss, J, on her own behalf

Forster, P, solicitor, on behalf of the respondent

Hearing details:

2017

23 June

Newcastle.

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Section 394(3) of the Act.

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

 4 [2011] 203 IR 1

 5   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 6   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 7   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

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

 13   Ibid.

 14   Ibid.

 15   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 16   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

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

 18   Ibid.

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

 20   [2016] FWCFB 6963

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