Karryn Daniel v Jump Swim Schools

[2019] FWC 594

[2019] FWC 594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Karryn Daniel
v
Jump Swim Schools
(C2018/6813)

DEPUTY PRESIDENT DEAN SYDNEY, 7 FEBRUARY 2019

Application to deal with contraventions involving dismissal - extension of time.

[1] On 30 November 2018 Ms Karryn Daniel made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Jump Swim Schools (JSS) in contravention of the general protections provisions of the Act.

[2] Ms Daniel commenced employment with JSS on 9 May 2018 and her employment was terminated on 7 November 2018. Ms Daniel’s general protections application lodged on 30 November 2018 was made two days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission.

[3] The matter was listed for hearing by telephone on 6 February 2019 to consider the extension of time issue. At the hearing, Ms Daniel appeared on her own behalf and Ms S Snow appeared for JSS.

Consideration

[4] The Commission may exercise its discretion to allow a further period for a general protection application to be made 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.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances. 1

[5] Section 366(2) of the Act provides:

366 Time for application

(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.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd² 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.”

[7] The onus of establishing exceptional circumstances lies with Ms Daniel.

[8] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[9] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances. 3

[10] Ms Daniel’s explanation for the delay was that she had filed an application form F9 on 28 November 2018, being the 21st day since her dismissal. On 29 November 2018 she was informed by the Commission that she had lodged the wrong form. She then attempted to lodge the correct form F8 that afternoon but was unable to do so due to internet issues. Her application was finally lodged on 30 November 2018 when she regained internet access.

[11] Ms Daniel says that that various matters prevented her from dealing with the lodgement of the application during the 21 day period following her dismissal. These include attending a funeral in Victoria on 8 November 2018, staying at the hospital for two days with her daughter who had to undergo a surgery and, in the following two weeks, taking her to medical appointments and generally caring for her. She was also actively looking for work during this period. Ms Daniel says that it was a stressful time for her and losing her job added to that stress. She accessed the Fair Work website approximately two weeks after her dismissal. She then made enquiries with the Commission staff and was advised to file form F9. She claims that she had been unable to do so for three days due to internet issues and was finally able to file the form on the last day of the 21 day period.

[12] JSS argues that Ms Daniel has only provided a reasonable explanation for three days as to the reason for delay in making the claim within the 21 day period, namely the day she attended the funeral and the two days accompanying her daughter at the hospital. JSS submits that there was no evidence to suggest that Ms Daniel’s daughter required round-the-clock care which would inhibit her from having any free time to submit the claim. Ms Daniel’s admission that she had been actively seeking employment suggests that she did have available time to seek advice and lodge the claim within that period. JSS further contends that Ms Daniel has failed to provide evidence to support her claim that she had experienced Telstra internet connection difficulties during the time stated. It submits that JSS is located within 5 kms from Ms Daniel’s residence and it did not experience any internet difficulties at the relevant time. Further, Ms Daniel could have used the local council library’s free internet access.

[13] I accept Ms Daniel’s evidence that she had suffered from stress following the dismissal which was escalated by her carer responsibilities. However, stress, shock and confusion is not uncommon reaction to being dismissed, and are not normally regarded as exceptional circumstances.

[14] Nevertheless, I accept Ms Daniel’s evidence that she filed her initial application on the 21st day following her dismissal taking effect. This claim was confirmed by the Commission records which also indicate that the Form F9 essentially contains the same information as in the Form F8 subsequently lodged. It is clear that had Ms Daniels filed the correct form, her general protections application would have been made within the statutory timeframe. I further accept that her attempt to refile the application on the day she was advised that she had used the wrong form was defeated due to internet issues she had experienced and that she duly submitted the application the following day.

[15] Overall, I am satisfied that Ms Daniel has provided an acceptable reason for the delay. This weighs in favour of a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[16] There is no evidence that Ms Daniel took any steps to contest the termination until the filing of this application. Instead she actively sought alternative employment.

[17] I find this weighs against a finding that there are exceptional circumstances.

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

[18] I am not satisfied that JSS would suffer any prejudice if the extension of time were granted given the short delay. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

The merits of the application

[19] For the purpose of determining whether to grant an extension of time for Ms Daniel to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁴

[20] Ms Daniel contends that JSS has breached ss.340 and 343 of the Act, claiming that her employment was terminated because of her absence due to sickness and family responsibilities.

[21] JSS denies any contraventions of the general protection provisions and submits that Ms Daniel’s casual employment was terminated for misconduct and performance issues.

[22] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

[23] 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

[24] Neither party has made submission on this issue and I therefore find this to be a neutral consideration.

Conclusion

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

[26] On balance, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. Taken as a whole, the circumstances of Ms Daniel are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

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

DEPUTY PRESIDENT

Appearances:

K Daniel on her own behalf.

S Snow for Jump Swim Schools.

Hearing details:

2019.

Sydney and Jimboomba, QLD (by telephone):

February 6.

Printed by authority of the Commonwealth Government Printer

<PR704471>

 1   [2016] FWCFB 6963.

2 [2011] FWAFB 975.

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].