Karen Cross v Jabiru Community Youth and Children's Services Association (Inc)
[2019] FWC 7417
•28 OCTOBER 2019
| [2019] FWC 7417 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karen Cross
v
Jabiru Community Youth & Children’s Services Association (Inc)
(U2019/10093)
COMMISSIONER JOHNS | SYDNEY, 28 OCTOBER 2019 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Karen Cross (the Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 10 September 2019. That being 25 days after her employment was terminated by Jabiru Community Youth & Children’s Services Association (Inc) (the Respondent) on 16 August 2019 and, consequently, 4 days after the 21 day time limit provided for in the FW Act.
Preliminary matter - permission to be represented
[3] On 18 October 2019 the Respondent sought permission from the Commission for it to be represented by a lawyer. The Applicant opposed the application.
[4] It was necessary to determine this preliminary matter at the outset to ensure that the manner in which any jurisdictional hearing was conducted was fair and just having regard to the decision of the Federal Court of Australia in Warrell v FWC [2013] FCA 291.
[5] In its written submissions filed the Respondent relied upon:
a) section 596(2)(a) of the FW Act, arguing that permission should be granted on the basis that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter involving a jurisdictional objection.
b) Section 596(2)(b) of the FW Act, arguing that due to the “lack of knowledge and advocacy experience” of its representatives, it was unable to properly represent itself. It was contended that the Respondent “the comparatively small business and as such does not have an internal specialist human resources for legal expertise.”
[6] The Applicant, representing herself, objected to the Respondent being represented by a lawyer.
[7] In deciding the question of permission to be represented I considered all that was put before it in the submissions and had regard to the cases to which I was referred.
[8] I also heard from the Chief Executive Officer of the Respondent, Brett Rowland. Mr Rowland provided me with information about the term of his appointment as Acting CEO and now CEO, his bachelor degrees and the operations of the Respondent which has an annual turnover of $8.2 million.
[9] In so far as the application for permission to represented was advanced having regard to s.596(2)(a) I was not satisfied that an extension of time hearing was invested with any measure of complexity. While noting that a jurisdictional objection is regularly treated as complex, an extension of time matter does not fall into that category. There is very little that a Respondent can say about the matter. Even if it could be said that there was some complexity I was also not satisfied that I would be assisted in the efficient conduct of the matter if I allowed the Respondent to be represented. It is regularly the business of the Commission to deal with extension of time applications. I was not persuaded that I would be assisted in the efficient conduct of the same if I allowed the Respondent to be represented by a lawyer or paid agent.
[10] In so far as the matter was advanced having regard to s.596(2)(b) I was not satisfied that the Respondent was unable to represent itself. The statutory test is not whether a party can be better represented by a lawyer or paid agent. It must demonstrate that it is unable to represent itself. In attendance before me was a Chief Executive Officer of the Respondent. Noting his skills and experience and also the limited role that a Respondent has to play in an extension of time hearing I was satisfied that Mr Rowland was able to represent the Respondent.
[11] In all the circumstances I decided not to grant the Respondent permission to be represented.
The jurisdictional objection
[12] On 20 September 2019 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
[13] On 9 October 2019 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection and the parties complied with the same.
[14] The exhibits marked in the matter were as follows:
Exhibit No. | Description |
1 | Form F2 - Unfair dismissal application |
2 | Form F3 - Employer response to unfair dismissal application |
3 | Email from Applicant to the chambers of Vice President Catanzariti dated 8 October 2019 |
4 | Respondent’s submissions regarding permission to be represented |
5 | Respondent’s submissions regarding extension of time |
6 | Witness statement of Emma Clare Chambers dated 18 October 2018 |
7 | Applicant’s submissions opposing permission to be represented |
8 | Applicant’s submissions regarding extension of time |
Legislative scheme
[15] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s.394(3) of the FW Act:
“(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.”
[16] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and 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. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances:”
[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. 4
Facts leading up to and relating to the dismissal
[17] It is common ground between the parties, or otherwise not contested, that:
a) On 2 October 2018 Applicant commenced employment with the Respondent.
b) The terms and conditions of employment of the Applicant were covered by the Children’s Services Award 2010.
c) The Applicant was paid $32.02 per hour.
d) On 31 July 2009 the Applicant received a letter from the Respondent concerning a number of allegations regarding her performance and conduct.
e) On 5 August 2019 a meeting occurred to discuss the allegations.
f) On 7 August 2019 the Applicant received a letter from the Respondent advising her of overarching concerns regarding the allegations made against her. The letter advised the Applicant of the Respondent’s intention to terminate her employment and provided her with an opportunity to respond.
g) On 13 August 2019 the Applicant provided a response to the Respondent.
h) On 16 August 2019 the employment of the Applicant was terminated with effect that day.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[18] It is undisputable that there were 25 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. Consequently, the application was four days late.
[19] On 8 October 2019 the Applicant explained the delay in the following terms,
“… I have been conversing with my representation and they have said that they cant continue as not financially viable. I said to them why did they tell me in the meeting with both Geoff and Colin of employer protect that they had to wait 21 days before they could put in application for unfair dismissal. which they did and they I got the attachment form for the waiver which I had to get someone to help me with. I was quite emotional after all that happened with Jabiru that I was having trouble trying to fill forms out on my own more the comprehension. further to this I couldn't access my emails until I made a deal to pay my phone bill so I could get onto my emails. this was a few days. I replied and did the form as quick as I could. I was diagnosed many years ago with ptsd and promised myself I would never let myself go down that path again as it was quite scary. I started having traits of in all this dealing with what happened. i have a copy of the pysch report from 2008 which I will attach also if this helps. I can also get a letter off my aunty who has been trying to help keep my spirits up through all this. I couldn't afford to go to a counsellor as no income, I did go and get stress leave before I was dismissed in fact got 2 letters which I was told to send to Colin and he would pass on to jabiru. he only sent one. I feel I have been caught up in something that got blown out of proportion with my representation which led to my dismissal. I don't feel I was treated fairly at all and then to have my property destroyed on top of it or lost really was the straw. I just believe that everyone should be given a fair crack in life. I gave so much of myself to jabiru and feel so broken now. Yes I have managed to get a new job, this has cost me dearly. with the extra travel, fuel costs, childcare fees and trying to drive the distance is putting a toll on me. Please don't dismiss this, please let this go ahead.
regards Karen Cross”. 5
[20] On date 2019 the Applicant further explained the delay as follows,
“(a) the reason the for delay is that on the 19th August 2019 I (Karen Cross) had a meeting with Geoff Taylor who said in that meeting that they had to wait 21 days before they could lodge the Unfair Dismissal Claim. This meant that it had to be done according to Geoff Taylor of Employer Protect on the 7th September 2019, being 21 days from dismissal. He sent through a draft letter of the Unfair Dismissal Claim, which, due to me not being able to access my emails until the 7th September 2019 I was not able to access. I read the email and this is where Geoff Taylor told me that I had to pay for lodgement or I could do the waiver seeing as I could not pay. I could not lodge the waiver form until the following Monday. That is when Geoff Taylor told me on the phone that the Unfair Dismissal Lodgement was late unless of course I had exceptional circumstances. After that conversation Geoff Taylor and Colin Dorbor of Employer Protect stopped accepting my telephone calls as they told me that the case was not financially viable for them to handle.” 6
[21] Before me the Applicant confirmed that,
a) it had been explained to her by Employer Protect that there was a 21 day time limit.
b) Employer Protect sent a draft of the Unfair Dismissal Application to her on 4 September 2019.
c) she read that email on or about 6 September 2019.
[22] To the extent that there was a contention, one time, that the Applicant was unaware of the treatment day timeframe that cannot be the Reason for the delay in light of the evidence that the applicant gave to me during the hearing. In any case it is well established that a lack of awareness about the statutory timeframe does not constitute an exceptional circumstance.
[23] To the extent that it appeared, on some of the material, that the Applicant may have been a victim of representative error, having regard to the evidence before me that cannot now be advanced as a reason for the delay. This is because it is clear that Employer Protect:
a) notified the Applicant of the statutory timeframe, and
b) provided her with a draft of her Unfair Dismissal Application in advance of the expiration of the same. Having received the draft the Applicant could have filed the application online within the 21 day timeframe.
[24] To the extent that some lack of access to information technology is advanced as the reason for delay, having regard to the evidence advanced before me during the hearing, I am not satisfied that any lack of access precluded the Applicant from filing the application within time.
[25] Therefore this factor weighs against granting the Applicant a further period to make her application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[26] It is uncontested that the Applicant first became aware of the dismissal on 16 August 2019.
[27] Therefore this factor weighs against granting the Applicant a further period to make her application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[28] Other than file her application out of time the Applicant took action to dispute the dismissal by contacting Employer Protect. However, it is clear that, although they explained the 21 day time limit to them she did not take action to ensure that they lodge the application on time.
[29] The lack of action taken by the Applicant weighs against granting her a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[30] The Respondent did not contend that there was any exceptional prejudice beyond the usual prejudice associated with delay.
[31] The prejudice asserted by the Respondent weighs is a neutral consideration in relation to granting the Applicant a further period to make her application.
Paragraph 394(3)(e) - The merits of the application
[32] In the matter of Kornicki v Telstra-Network Technology Group 7the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 8
[33] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[34] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[35] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the termination, and, even if there was, whether the circumstances of the Applicant result in the termination being harsh. These are not matters in dispute that can be resolved at a jurisdictional hearing.
[36] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
[37] If the Applicant can establish to the satisfaction of the Commission that there was no valid reason or that her personal circumstances in any case render the termination harsh she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of s.387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[38] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[39] I am not satisfied that this factor relevant.
Conclusion
[40] For the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).
[41] An Order [PR713756] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms K Cross for herself.
Ms B Roland for the Respondent.
Hearing details:
Friday, 25 October 2019
Melbourne via telephone
Printed by authority of the Commonwealth Government Printer
<PR713755>
1 Fair Work Act 2009 (Cth) (‘FW Act’) s.394(2)(a). 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 Ibid s.394(3).
3 [2011] 203 IR 1.
4 Ibid [13].
5 Exhibit 3.
6 Exhibit 8.
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid.
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