Karyn Cooper v Chapman Floor Coverings

[2024] FWC 688

[2024] FWC 688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Karyn Cooper
v

Chapman Floor Coverings

(U2024/1380)

DEPUTY PRESIDENT DEAN CANBERRA, 19 MARCH 2024

Application for an unfair dismissal remedy – extension of time.

1. Ms Karyn Cooper (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by Chapman Floor Coverings (Respondent).

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Applicant’s dismissal took effect on 24 November 2023 and she made the application on 9 February 2024, some 56 days outside the 21 day period.

1. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

1. The matter was listed for hearing by telephone on 18 March 2024. The Applicant appeared on her own behalf and Mr D Chapman appeared for the Respondent.

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

1. The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

(b)   whether the person first became aware of the dismissal after it had taken effect;

(c)   any action taken by the person to dispute the dismissal;

(d)   prejudice to the employer (including prejudice caused by the delay);

(e)   the merits of the application; and

(f)    fairness as between the person and other persons in a similar position.

1. 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. I now consider these matters in the context of this application.

Reason for the delay

1. The Act does not specify what reason for the 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 of the circumstances must be considered.[3]

1. The Applicant gave evidence that she experienced a stroke on 18 August 2023 and as a result she was in hospital from 22 to 23 August 2023. At the time of her dismissal on 24 November 2023 she was “still in the midst of recovery, grappling with significant physical and psychological challenges”. She said her weakened state left her incapable of contesting her dismissal or seeking information about her rights. She also said that the timing of the dismissal, followed closely by the Christmas and New Year period, further impeded her ability to secure medical or legal guidance.

1. The medical evidence supplied by the Applicant demonstrates that as of 30 October 2023 she had returned to work part time 4 hours per day. There was no medical evidence submitted that supports a finding that the Applicant was incapacitated to such an extent that she was unable to make her application within the statutory time frame.

1. In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional, in that there is no medical evidence that explains the 56 day delay, and the Christmas and New Year period is not out of the ordinary. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant was aware of the dismissal on the day it took effect and therefore had the full 21-day period to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission should not embark on a detailed consideration of the substantive case.

1. The Applicant strongly disputes the basis for her dismissal, which involved an allegation of misconduct. The Respondent contends there were significant issues amounting to serious misconduct which warranted her dismissal.

2. The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

1. 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. However, cases of this kind will generally turn on their own facts.

1. I do not consider that there are any persons or cases relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration.

Conclusion

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

K Cooper, on her own behalf.
D Chapman for Chapman Floor Coverings

Hearing details:
2024.
By telephone:
March 18.

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

[2] Ibid.

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

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