Julie Konda v McWaters Productions Pty Ltd T/A Open Slather Foxtel Sketch Comedy Series

[2015] FWC 8198

[2015] FWC 8198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Julie Konda
v
McWaters Productions Pty Ltd T/A Open Slather Foxtel Sketch Comedy Series
(C2015/5965)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 4 September 2015 Ms Julie Konda (the Applicant) lodged a General Protections application, involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant alleged that she had been dismissed by McWaters Productions Pty Ltd T/A Open Slather Foxtel Sketch Comedy Series (the Respondent).

[2] The Applicant commenced employment with the Respondent on 21 February 2015. She was employed as a “Costume Standby” on the Foxtel Sketch Comedy Series. She says that she was dismissed on 21 July 2015 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that she was verbally dismissed on 21 July for the reason that she was a single parent. Performance issues were raised and it was suggested that the Applicant could not cope with the job because of her personal circumstances. A breach of s.351, in respect of family or carer’s responsibilities, is alleged.

Respondent’s Submissions

[4] The Applicant was engaged under a Crew Agreement which provides for a maximum period of engagement. The terms of this agreement will, no doubt, be the subject of debate if the matter proceeds to further argument.

[5] The Respondent denies the allegation as to the breach of s.351 and the factual basis for it. It submits that the Applicant was terminated consistent with the Agreement.

Relevant Legislation

[6] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position.”

Approach of the Commission

[7] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[8] On 2 October 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 18 November 2015.

[9] The Applicant was self-represented. The Respondent was represented by Mr A. Lunn, solicitor, who was granted permission to appear pursuant to s.596.

Matters to be taken into account pursuant to s.366(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

The Applicant lodged 24 days out of time. She relies on a confirmation of factors to justify the lateness:

● She was ill at the time of the dismissal. Her certificate extends until 7 August.

● She misunderstood the directions by thinking that time ran from the date of the directions issued by the Commission.

● The legal representations she thought she had arranged withdrew.

● She had computer and internet problems during the period.

● As a single mother, she had financial and emotional difficulties in coping in the period following the dismissal

[11] Unusually, the Respondent advised the Commission that it did not oppose the extension of time and was prepared to negotiate.

[12] As the quote from Nulty above demonstrates, “exceptional circumstances” may be comprised of a combination of factors which separately would not bring an applicant within s.366(2). This was affirmed by the Commission, also in Wayne Candy v Structural Cranes Pty Ltd[2012] FWA 5878. In my view this is such a case.

[13] I am satisfied that the combination of the factors listed above provide the basis for a finding that exceptional circumstances exist.

(b) Any action taken by the person to dispute the dismissal

[14] After the dismissal, the Applicant made a number of attempts to contact various organisations to get advice as to how she could institute proceedings to challenge the dismissal.

[15] I consider that this factor is supportive of a finding that exceptional circumstances exist.

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

[16] Given that the Respondent has indicated support for the extension of time, it will not be prejudiced, if the extension is granted.

(d) The merits of the application

[17] There is a disagreement over what was said between the Applicant and the Respondent during July. There is also an issue about the meaning of the Crew Agreement. Nevertheless, the Respondent has shown a willingness to meet the substance of the claim. The parties should be given an opportunity to reach an agreement to settle the s.365 application.

(e) Fairness as between the person and other persons in a like position

[18] This factor was not addressed and has not been taken into account.

Conclusion

[19] Having considered all of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application for a further period for lodging of the application is granted. An Order (PR57448) in these terms will accompany this decision.

DEPUTY PRESIDENT

Appearances:

J. Konda, Applicant.

A. Lunn, solicitor with A. Arteta, P. Walton and R. McKenna for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 18.

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