Jessica Sheehan v Category 5 Labour Management Vsa Pty Ltd

[2021] FWC 6583

[2021] FWC 6583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Sheehan
v
Category 5 Labour Management Vsa Pty Ltd
(U2021/9942)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 10 DECEMBER 2021

Application for an unfair dismissal remedy – Jurisdiction – Extension of Time – Application – Dismissed

[1] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act), in respect of her employment with Category 5 Labour Management VSA Pty Ltd (the Respondent). That application was lodged on 5 November 2021.

Application was filed outside the statutory timeframe

[2] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[3] The Applicant’s employment was terminated by the Respondent with effect from 13 October 2021. Based on a termination date taking effect on 13 October 2021, the application for a remedy should have been lodged by no later than 3 November 2021 but was lodged on 5 November 2021.

[4] The application was therefore lodged outside of the time prescribed. The application was made less than 7 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[5] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[6] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[7] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[8] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[9] I now consider these matters in the context of the Application.

(a) Reason for the delay

[10] 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 or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered. 3

[11] The Applicant provides an explanation for delay in filing her application with a timeline of significant dates.

[12] On 18 August 2021 the Applicant was advised that her father-in-law who resides in Cairns was terminally ill. 4

[13] From 6 September to 9 October 2021 the Applicant and her partner were in Cairns after being permitted to travel from Victoria on compassionate grounds. The Applicant worked remotely for the Respondent during this period. 5

[14] The Applicant returned to work on 13 October 2021. The Applicant was immediately terminated upon her return to work. 6

[15] The Applicant immediately began her unfair dismissal application upon termination and had completed the draft by 15 October 2021. The Applicant intended to file with the Commission shortly after this date, as she was aware of the 21-day time limit. 7

[16] On 16 October 2021 the Applicant’s father-in-law passed away, the following weeks were spent grieving this loss. The Applicant became distracted and lost track of the 21-day time limit. 8

[17] At her first opportunity on the evening of 4 November 2021 1 day after the time limit elapsed the Applicant went to complete the application, realising it was out of time on this day. The Applicant proceeded to complete the application and filed it with the Commission on 5 November 2021. 9

[18] In my view the Applicant had adequate time to lodge her application. She could have lodged it in the period 13-15 October. After the death on 16 October she had a number of days in which she could have lodged it. I accept that there would have been a personal impact on her which was ‘distracting’. However, there is an obligation on an applicant to lodge on time which she did not comply with. She has obligations under the Act if she wishes to exercise her right to initiate litigation. She has to accept some responsibility herself for the delay. The explanation she has provided does not fully explain the period of delay. This weighs against the Applicant in this case.

(b) Whether Applicant first became aware of the dismissal after the date it took effect

[19] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the Applicant asserts she became aware of the dismissal at the time it took effect. 10

[20] The Applicant was made aware of the dismissal on 13 October 2021 at a meeting with the East Coast General Manager Mr Paul Tobin and the Company Director Mr Sam Sycamore. The Applicant was provided with a formal letter of redundancy after this meeting. 11

In the circumstances, this weighs against the Applicant, because she was immediately aware of her dismissal.

(c) Any action taken by the Applicant to dispute the dismissal

[21] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The Applicant has not taken any action to dispute her dismissal. 12

[22] In the circumstances, that is a matter that weighs against the Applicant.

(d) Prejudice to the Respondent including prejudice caused by the delay

[23] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The period of time is short, and no prejudice is claimed by the respondent.

[24] In the circumstances, that is a matter that weighs in favour of the Applicant.

(e) The merits of the application

[25] As to the merits of the application, there will need to be evidence led and submissions put in relation to the genuineness or not of the redundancy, and at this stage I am unable to assess the merits beyond saying that both sides will need to put submissions and evidence.

(f) Fairness as between the Applicant and other persons in a similar position

[26] As to fairness between the Applicant and other persons in a similar position, the Applicant asserts there are no other persons in her position. 13

[27] 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 Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

Conclusion

[28] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[29] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[30] As I have indicated, above there is no satisfactory explanation for the delay, and I have taken each of the above factors into consideration. In the circumstances I am not persuaded that there are exceptional circumstances which warrant an extension of time. I therefore refuse to grant an extension of time.

DEPUTY PRESIDENT HAMILTON

Printed by authority of the Commonwealth Government Printer

<PR736656>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 4   Digital Court Book at pg. 15.

 5   Ibid pg. 15-16.

 6   Ibid pg. 16.

 7   Ibid pg. 16.

 8   Ibid.

 9   Ibid.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Ibid pg. 19.