Jessica Boland v D G Tindall Services Pty Ltd T/A PWM Advice

[2016] FWC 7549

[2016] FWC 7549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Boland
v
D G Tindall Services Pty Ltd T/A PWM Advice
(U2016/10065)

DEPUTY PRESIDENT DEAN SYDNEY, 26 OCTOBER 2016

Application for relief from unfair dismissal – extension of time.

[1] Ms Jessica Boland (the Applicant) was employed by D G Tindall Services Pty Ltd T/A PWM Advice (the Respondent) until her dismissal on 3 May 2016.

[2] On 12 May 2016 the Applicant lodged an application (first application) pursuant to s.394 of the Fair Work Act 2009 (the Act). The first application was the subject of conciliation by a Fair Work conciliator on 14 June 2016. The Applicant discontinued the application on 15 June 2016. The Applicant claimed that she discontinued the first application “as a result of certain comments made by the conciliator” 1.

[3] The Applicant lodged a second application for unfair dismissal remedy on 8 August 2016 (the current application). The current application was lodged some 75 days outside the 21 day period prescribed by the Act.

[4] I note here that there is no impediment to a second unfair dismissal application being made under the Act 2.

[5] In its response filed on 13 September 2016, the Respondent objected to an extension of time and raised the following jurisdictional objections to the current application:

a. The Applicant’s employment did not meet the minimum employment period; and

b. The business is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code.

[6] The matter was listed for hearing by telephone on 24 October 2016 to determine whether I should extend time for the Applicant to pursue the current application. At the hearing, the Applicant was represented by Mr M Byrnes and the Respondent was represented by Mr A Suthers.

[7] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[8] Section 394(3) of the Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[9] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 3 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.”

[10] 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.

[11] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[12] The Applicant gave evidence that during the conciliation of her first application on 14 June 2016, the conciliator expressed the view that she had not been employed by the Respondent for 12 months and therefore did not satisfy the minimum employment period.

[13] The conciliation was concluded on the basis that the Applicant would have 3 days to consider her position and have the opportunity to obtain legal advice.

[14] The Applicant stated that the conciliator had a telephone conversation with her father (who was assisting the Applicant) the day following the conciliation. In this conversation, it is alleged the conciliator said that the Applicant should discontinue her application on the basis that she was not eligible to make an unfair dismissal complaint and that costs may be ordered against her if she proceeded. The Applicant submitted that after discussing the matter with her father, she followed the advice of the conciliator and discontinued her first application on 15 June 2016. She said she did so because she did not have the legal knowledge to question the views expressed by the conciliator.

[15] The Applicant obtained an appointment with Legal Aid NSW within a day or so of discontinuing the first application, and was then referred to her current lawyers. The current application was lodged on 8 August 2016.

[16] The Applicant gave evidence during the hearing, and was cross-examined. During cross-examination, the Applicant agreed that she was aware that there was a time limit for the filing of unfair dismissal applications and was aware of this at the time she met with Legal Aid NSW.

[17] In submissions made on behalf of the Applicant, it was accepted that the conciliator did not give legal advice, but did express views about the Applicant’s prospects, which influenced the Applicant to take the step of discontinuing the first application.

[18] The Respondent contended that the Applicant discontinued her first application voluntarily and the fact that she did not discontinue the application on the day of the conciliation conference indicated that she chose to consider her position before making the decision to discontinue her first application.

[19] The Respondent submitted that the Applicant was assisted throughout the process by her father, who the Applicant confirmed in cross-examination had experience in human resource matters (although not unfair dismissal matters).

[20] The Respondent argued that there was no evidence of the conversation between the Applicant’s father and the conciliator, which was alleged to have led to the decision to discontinue, as her father was not called to give evidence.

[21] The Respondent argued that the Applicant had the opportunity to obtain advice prior to the first conciliation on 14 June 2016, and immediately after the conciliation conference.

[22] Most importantly in my view, the Respondent pointed to the delay that occurred between 15 June 2016 (being the date the first application was discontinued) and the lodging of the current application on 8 August 2016, being a period of almost two months.

[23] Other than the Applicant’s brief evidence that she had conversations with her lawyers during this period, there was no other explanation as to why the current application took so long to be made.

[24] The Applicant’s knowledge of the 21 day time frame and lack of satisfactory explanation of the delay between 15 June and 8 August 2016 weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant was aware of her dismissal at the time it took effect.

Any action taken by the person to dispute the dismissal

[26] The Applicant took action to dispute her dismissal, and lodged the first application within the 21 day time frame. In ordinary circumstances this action would weigh in favour of finding exceptional circumstances. However, in this case I find it to be a neutral consideration given the Applicant’s subsequent action of discontinuing the first application, as there was then a period of almost two months in which the Respondent would rightly consider the ‘dispute’ to have been concluded.

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

[27] The Respondent submitted that the Applicant’s second application was filed nearly two months after her first application was discontinued, and if accepted, will cause a significant prejudice to the Respondent as a result of it incurring additional legal costs.

[28] The Applicant submits that there is no (or little) prejudice to the Respondent as the Applicant will not be seeking reinstatement.

[29] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. 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.

The merits of the application

[30] The Applicant, unsurprisingly, argues that the current application has merit, and the Respondent, again unsurprisingly, argues that it doesn’t.

[31] I note that the Applicant will have two further hurdles to overcome if I extend time, those being whether the Applicant has served the minimum employment period and whether the dismissal was consistent with the Small Business Fair Dismissal Code.

[32] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[33] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’6

[34] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[35] I have considered all of the matters to which my attention is directed by the Act.

[36] I do not find it necessary to make a finding as to what may have been said by the conciliator, or what reliance was placed on this by the Applicant in deciding to discontinue the first application. This is because of the substantial delay that occurred after the first application was discontinued. It is a result of this delay – that being between 15 June and 8 August 2016 – that I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[37] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M Byrnes for the Applicant.

A Suthers for the Respondent.

Hearing details:

2016.

Sydney (by telephone):

October 24.

 1   Applicant’s submissions at para 1.4.

 2   AB v Tabcorp Holdings[2015] FWCFB 523.

 3   [2011] FWAFB 975.

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 5   [2015] FWC 8885.

 6 Ibid at [29].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR586618>