Jessica Joy Sullivan v Digital Quarter Pty Ltd

[2023] FWC 691

[2023] FWC 691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jessica Joy Sullivan
v

Digital Quarter Pty Ltd

(C2023/802)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 MARCH 2023

Application to deal with contraventions involving dismissal

1. Issue and outcome

1. On 15 February 2023, Ms Jessica Joy Sullivan (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Digital Quarter Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.

1. It is uncontroversial that the Applicant’s dismissal took effect on 7 December 2022.  It therefore follows that the application was filed some 49 days late. 

1. As observed, the Act requires the application to have been made within 21 days of the dismissal taking effect. However, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.

1. Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The Applicant filed a bare response, with little to no evidence addressing the factors in s 366(2)(a)-(e). In light of the Applicant indicating in the materials filed that she had experienced housing insecurity, I decided it was appropriate to conduct a hearing. In the absence of a witness statement from the Applicant and a paucity of relevant evidential material before me, I allowed both parties to provide viva voce evidence. However, the Respondent was content to rely on the witness statement of Mr Mark Semaan, a Director of the Respondent.

1. Briefly stated, I have found that the Applicant’s employment ended on 7 December 2022. It follows that the Applicant’s application was made outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[3]

1. Background

1. It appears from the documents tendered that the Applicant commenced employment with the Respondent on 21 October 2022.[4]

1. The Applicant was responsible for a variety of tasks which included, but was not limited to, content moderation, customer support, product testing and marketing on one of the apps owned by Digital Quarter, known as RedHotPie.[5]

1. Whilst the Applicant was convinced that her former partner, whom she had sought a Family Violence Restraining Order (FVRO) against, had assisted in her obtaining the role with the Respondent, Mr Semaan denied that was the case.[6]

1. Mr Semaan said that around November 2022, the Applicant began experiencing difficulties in her personal life, regarding her former partner.[7]  Mr Semaan said that the Applicant disclosed to him and other Directors that she was involved in a police matter with another user of RedHotPie.[8]

1. The Applicant gave evidence that she had kept the Directors informed about everything that was occurring with her former partner.[9]  The Applicant said that she had been unhoused or housesitting at her parents’ place whilst they were away, caring for the ‘furbaby, McGee’.[10]

1. Mr Semaan said that having held discussions with fellow Directors, they formed the view that they were not comfortable giving the Applicant full access to the confidential databased of ‘users’ of the Respondent’s ‘apps’, given her job performance to date.[11]  Mr Semaan expressed that he regarded the Applicant’s performance as below expectations.[12]

1. On 2 December 2022, the Applicant requested to work from home, her email stated:

…it is at all possible for me to work from “home” (Prevelly) at all next week?  I would be housesitting with my furbaby, McGee.  I have been missing her hard and would love some time with her where she is most comfortable…[13]

1. Mr Semaan denied the request.  Mr Semaan said it had been discussed with the Applicant at the interview stage that working from home was not an option for the role she had taken on.[14]

1. Mr Semaan said the following week, on 7 December 2022, the Applicant informed him that she was unwell and took personal leave.  Mr Semaan explained that the Applicant asked him whether she needed to get a medical certificate, to which he replied it was not necessary.[15]  On that same day, the Applicant was notified of her dismissal.[16]

1. The Applicant said that she had asked Mr Semaan if she needed a medical certificate to resolve the matter and he had replied, ‘no’.[17]  Nevertheless, the Applicant obtained one, but her dismissal status did not change.[18]

1. Extension of time

1. Consideration now turns to whether to extend the 21-day period within which the Application was to be brought. 

1. In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

1. It has been said that proceedings not commenced in time should not be entertained.[19] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[20] 

1. In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[21]  The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions.  In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[22]  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 can be considered exceptional.[23]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[24]

1. At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

3.1      Reason for the delay

1. In Pottenger v Department of Caffeine,[25] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[26] or a reasonable explanation.[27] 

1. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[28]  Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[29] 

1. The Applicant attributes the delay in making the application upon several factors.  First, whilst admitting that she was aware of the statutory timeframe in which the application was to be made, the Applicant stated that she held off making the application as she was awaiting the outcome of the FVRO (served on her former partner on 17 January 2023).[30]  The Applicant explained that she did not want to be discredited by, presumedly, not having obtained the FVRO.

1. In the documents filed by the Applicant, she includes a text message to a person who appears to be her job network agent, Karyn.  The text message reads:

8 Dec 2022

Hi Karyn,

I have just been notified that apparently I have been sent my notice of termination via Skype, email and post.  I have a medical certificate to cover my leave of absence until the end of the week.  I am going to court today to lodge this FVRO.  I have asked them if I may know the reason for this.  I will let you know if I hear anything.  I will be spending the remainder of my time trying to secure my separation certificate and on the phone to Centrelink…[31]

1. In a further text message to Karyn on 8 December 2022, the Applicant wrote:

I have requested a separation certificate.  I am going to court now.  I need to lodge a fair work claim regarding discrimination and exploitation type="1">

The Applicant appears to have obtained an interim FVRO on 9 December 2022.[33] 

1. The Applicant gave evidence at hearing that the person named in the FVRO had evaded being served with the interim order on 9 December 2022.  The Applicant’s former partner had 21 days to challenge the interim order once served (17 January 2023).  Having not challenged the FVRO, the Applicant clearly considered that this validated what she had contended about the issues with her former partner.  The Applicant says she sent an email and an ‘app technical support ticket’ to the Respondent on 8 February 2023, forwarding ‘that correspondence’.  The Applicant noted that the Respondent was not being responsive by Skype. 

1. The Applicant further submitted that other reasons for the delay included her housing instability and her employment instability.  The Applicant purports to have been house sitting in Margaret River for her parents and had only just returned to Perth at the time of making her application.[34]

1. Having considered the evidence before me, I am not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay.  However, this is not to discredit the difficulties encountered by the Applicant in respect of addressing issues with her former partner and obtaining an interim FVRO. 

1. First, the Applicant was aware that recourse was available to her through pursuing an application in the Commission. 

1. Second, the Applicant was cognisant of the timeframe in filing the application.  Ignorance of the law therefore had no bearing on the matter.

1. Third, the Applicant appears to have been under a misguided perception that it was preferable to await the grant of the FVRO to validate her position before filing her application in the Commission.  It would seem from the evidence that the Applicant may have held the belief that the grant of the FVRO would demonstrate to the Respondent that her difficulties with her former partner were valid, and this would change the Respondent’s view regarding her dismissal.  When this did not occur, that is the Respondent did not engage with her further, it appears the Applicant then decided to make her application in the Commission. 

1. While the Applicant may had held the view that it was preferable to delay making her application whilst awaiting the FVRO to be granted, as observed, her perception was misguided.  It was at all times open to the Applicant to make the application in the requisite period. 

1. As was submitted by the Respondent, the Applicant’s desire to ‘deal with’ the FVRO before turning her mind to the application does not amount to exceptional circumstances.  The decision to ‘run down the clock’ on the FVRO first was a decision premised on the Applicant’s personal preference.  Both applications were completely unrelated and could have easily run concurrently.  It is observed that the Applicant did not file her application for a further seven days after the FVRO appears to have been granted, on 7 February 2023.

1. Fourth, the Applicant’s economic and housing insecurity did not appear to impact upon her obtaining the interim FVRO, the FVRO, her separation certificate, and liaising with Centrelink and the Respondent – come 8 February 2023.  It cannot be said that the Applicant’s failure to make her application within the requisite time frame can be attributed to her housing situation or her economic insecurity. 

1. On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one.  This weighs toward a finding of there not being exceptional circumstances. 

3.2      Action taken to dispute the dismissal

1. The Applicant gave evidence that she attempted to contact the Respondent on 8 February 2023, with respect to the FVRO.  At page 45 of the Digital Hearing Book, there is a message to ‘Technical Support’ that states, ‘I would like to get back to work please.  Is that something you will help me with?’.  In all the circumstances, I do not consider that this message constitutes action disputing the Applicant’s dismissal.  The absence of action taken to dispute the dismissal is a factor that weighs against a finding of exceptional circumstances. 

3.3      Prejudice to the employer

1. Whilst the Respondent has submitted that it would be prejudiced if an extension of time was granted, I cannot identify any particular prejudice that the Respondent would face if that were the case.  

1. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.  In the present case, I consider this to be a neutral factor.

3.4      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[35] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an 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.[36]

1. The Respondent presses that the application is absent merit.  It asserts that the reason for dismissal was poor job performance and that the Applicant’s taking of personal leave was irrelevant to the dismissal.  The Respondent further asserts that it was permitted to terminate the Applicant’s employment with no reason required to be given and did so (relying upon the clause pertaining to the probationary period in the Applicant’s employment contract).  The Applicant contends that poor performance was not raised with her.

1. 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’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[37]  The merits of the application more generally would need to be scrutinised.  This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.  I therefore consider the factor neutral. 

3.5      Fairness as between the applicant and other persons in a similar position

1. At hearing, the Respondent drew support from a decision of this Commission where the applicant was denied an extension of time albeit the personal circumstances were similar, if not worse, than those presented now. 

1. However, having considered the Respondent’s submissions, I consider this to be a neutral consideration in the present matter.

1. Conclusion

1. The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.  Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

1. Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. I do not consider it fair and equitable to extend the time in which the Applicant could make his application.

DEPUTY PRESIDENT

Appearances:

J Sullivan, Applicant.
E Pickering, for the Respondent.

Hearing details:

2023.
Perth (by telephone):
29 March.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] PR760736.

[4] Witness Statement of Mark Semaan, [6] (Semaan Statement). 

[5] Ibid. 

[6] Ibid [4].

[7] Ibid [8].

[8] Ibid.

[9] Applicant’s email dated 15 March 2023; Digital Hearing Book, 15, 46 (DHB).

[10] Applicant’s email dated 15 March 2023; DHB (n 9) 15, 46.

[11] Semaan Statement (n 4) [9].

[12] Ibid [7].

[13] Ibid [14].

[14] Ibid [15].

[15] Ibid [16].

[16] Ibid [17].

[17] Applicant’s email dated 15 March 2023; DHB (n 9) 15, 46.

[18] Applicant’s email dated 15 March 2023; DHB (n 9) 15, 46.

[19] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

[20] Ibid [21].

[21] (2011) 203 IR 1, 6 [15].

[22] Ibid 5 [13].

[23] Ibid 5–6 [13].

[24] (2018) 273 IR 156, 165 [38] (Stogiannidis) (emphasis in original).

[25] [2018] FWC 3403.

[26] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].

[27] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[28] Stogiannidis (n 24) 165 [39].

[29] Ibid.

[30] Form F8 – General protections application involving dismissal, [1.4] (Form F8). 

[31] DHB (n 9) 77.

[32] Ibid 82.

[33] Ibid.

[34] Form F8 (n 30) [1.4]. 

[35] (1997) 140 IR 1.

[36] Ibid 11.

[37] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37] – [38].

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