Kathleen Ward v Raymond P & Margaret J Collins

[2024] FWC 2740

[2024] FWC 2740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kathleen Ward
v

Raymond P & Margaret J Collins

(C2024/5795)

DEPUTY PRESIDENT DEAN CANBERRA, 4 OCTOBER 2024

Application to deal with contraventions involving dismissal – extension of time not granted.

1. This decision concerns an application made by Ms Kathleen Ward (Applicant) pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her dismissal from Raymond P & Margaret J Collins (Respondent).

1. Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

1. The Applicant stated in her application that she was dismissed on 19 July 2024 when she was notified by the Respondent via a text message that her job was no longer available. Her general protections application, received by the Commission on 19 August 2024, was made 10 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.

1. The application was listed for hearing on 3 October 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on her own behalf. Mrs Collins appeared for the Respondent.

Extension of time

1. The Commission may exercise its discretion to allow a further period for a general protections 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]

1. Section 366 of the Act provides:

366 Time for application

(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).

(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.

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] 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.”

1. The onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle

1. I now deal with each of the provisions of s.366(2) of the Act.

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]

2. The Applicant advanced three reasons for the delay. First, she filed the wrong application. Second, she was provided unclear information regarding her status of employment, and third, she had been away and didn’t have a chance to file it within time.

3. The Commission records indicate that the Applicant lodged an unfair dismissal application on 13 August 2024. That application was lodged 4 days outside the 21-day statutory timeframe, which in her case ended on 9 August 2024. The Applicant was subsequently advised by a Commission Registry staff member that based on her period of employment of just over 5 months she did not appear to have completed the requisite minimum employment period and so was unable to make the unfair dismissal application.

1. On 19 August 2024 the Applicant withdrew the unfair dismissal application and on the same day lodged the present application.

1. Having considered the evidence presented by the Applicant, I am not satisfied that an acceptable explanation has been provided for the Applicant’s failure to file this application within the statutory timeframe.

1. There is nothing in the matters raised by the Applicant that is out of the ordinary or unusual. First, there is nothing unusual about filing the wrong application. To the extent it was the ‘wrong’ application, it was only because the Applicant had not met the minimum employment period and was ineligible to proceed with that application. Second, in the hearing the Applicant confirmed that she had been informed on 19 July 2024 that her employment had ended. She was clear about her dismissal from this date. Third, being away from home and not getting a chance to file an application is not exceptional.

1. Having considered the matters raised, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging this application. This weighs against the finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

1. The Applicant made an unfair dismissal application however this was also outside the statutory timeframe. This does not weigh in favour of the granting of an extension of time.

Prejudice to the employer

1. Give the short delay, I do not consider that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.

The 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 alleged she was dismissed because she suffered an injury at work. The Respondent says the Applicant “walked out” and did not return to work.

1. This case will turn on contested facts which cannot be resolved in this context. As such, 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 a general protections application. However, cases of this kind will generally turn on their own facts.

1. Neither party suggested this was a relevant criterion in this case, and so I find this to be a neutral consideration.

Conclusion

1. Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

1. An order giving effect to this decision is separately issued.

DEPUTY PRESIDENT

Appearances:

K Ward on her own behalf.
M Collins for Raymond P & Margaret J Collins.

Hearing details:
2024.
By Telephone:
October 3.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

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

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