Kathrin Pydde v Wickro Pty Ltd trading as Homestyle Aged Care Services
[2017] FWC 5124
•4 OCTOBER 2017
| [2017] FWC 5124 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kathrin Pydde
v
Wickro Pty Ltd trading as Homestyle Aged Care Services
(U2017/6896)
| deputy president gooley | MELBOURNE, 4 OCTOBER 2017 |
Application for an unfair dismissal remedy.
Ms Kathrin Pydde alleged that the termination of her employment by Wickro Pty Ltd trading as Homestyle Aged Care Services was unfair. Homestyle denies the allegation.
Given Ms Pydde’s dismissal took effect on 19 May 2017 her unfair dismissal application lodged on 28 June was not made within 21 days of the date the dismissal took effect.
I refused permission for Homestyle to be legally represented. It submitted that as the matter raised jurisdictional issues it necessarily involved some complexity. I do not accept this submission. This matter did not involve any particular factual or legal complexity.
After conferring with the parties, I determined that the matter should be dealt with in conference.
The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[1] 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." [Endnotes not reproduced]
(a) the reason for the delay;
Ms Pydde relied on a combination of factors to explain the delay. Her partner required heart surgery in April 2017 and still has a heart condition. Her step daughter died unexpectedly in early May. Further, Ms Pydde said she had difficulty accessing the internet and therefore was unaware of her rights. She said she attempted to sort the matter out with the CEO but her calls were not returned. She said she was looking for work. She sought the assistance of her accountant on 6 May 2017 but said that her personal circumstances prevented her from lodging her application. She said she did not know she only had 21 days to lodge the application.
Homestyle submitted extracts from Ms Pydde’s Facebook page to show that she had access to the internet between the time of her dismissal and the lodgment of her application. It further submitted that Ms Pydde would have been able access internet services at the library or a café. It tendered Ms Pydde’s termination letter which advised her that she could get information about her terms and conditions of employment from the Fair Work Ombudsman and provided the phone number and web address.
Homestyle submitted that as Ms Pydde’s step daughter’s death and her partner’s heart condition occurred prior to the termination of her employment and that neither provided a reasonable explanation for the delay in lodging her application.
While not wishing to downplay the impact of the death of her step daughter or her partner’s ill health, Ms Pydde was able to work up to the date of her dismissal despite these two events. I am not satisfied that either of these events provide a reasonable explanation for the delay in lodging her application.
That Ms Pydde was looking for work during this time is not unusual and does not explain why she was not able to lodge her application in time.
I accept that Ms Pydde was not able to access the internet easily during this time. However the evidence established that Ms Pydde was able at times to access the internet via her mobile phone. There was no explanation as to why she did not use her mobile phone to review the information on the Commission’s website. A simple internet search undertaken on a phone can provide information about lodging applications and the time limits. Even if she was not able to lodge the application form on line she could have made an application by phone or attended the Commission’s office to lodge the application.
Ms Pydde saw her accountant within the 21 day time period. Her explanation as to why she took another 22 days to lodge her application was that she did not know of the time limitation. A lack of knowledge about the time limit for lodging applications is not unusual.
I am not satisfied that the reasons relied on by Ms Pydde either by themselves or when considered together provide a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.
(b) unfair dismissal only whether the person first became aware of the dismissal after it had taken effect.
Ms Pydde was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.
(c) any action taken by the person to dispute the dismissal;
Ms Pydde said she attempted to contact the CEO to discuss the matter. Ms Annette Roehrs gave evidence that Ms Pydde spoke to her after her dismissal about her overtime claim and that Ms Pydde did not dispute the dismissal at this time or at the time of the dismissal.
Whilst I am satisfied that Ms Pydde attempted to call the CEO, she took no other steps to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.
(d) prejudice to the employer (including prejudice caused by the delay);
There was no evidence or submission about any prejudice to Homestyle. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
(e) the merits of the application;
In the matter of Kornicki v Telstra-Network Technology Group[2] the 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 lodgement. 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." [3]
For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."[4]
In this matter there was no factual dispute about the incident that led to Ms Pydde’s dismissal. There is no dispute that Ms Pydde was made aware of the allegations and given an opportunity to respond to the allegations. Ms Pydde submitted that her dismissal was unfair because she had a good record and was a hard worker. Ms Pydde submitted that at the time of the incident she was having a difficult time in her personal life. Further, Ms Pydde acknowledged her fault and felt remorse for her actions however she did not consider her conduct to be sufficiently serious to warrant summary dismissal.
The Commission has found a dismissal to be unfair even when there is a valid reason for the dismissal and the dismissed employee was afforded procedural fairness. However, that would be a matter determined after hearing the evidence and the submissions. I consider this criterion to be a neutral consideration.
(e) fairness as between the person and other persons in a similar position.
There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.
Conclusion
I am not satisfied that there are exceptional circumstances warranting granting Ms Pydde an extension of time to lodge her application. I am not satisfied that Ms Pydde has a reasonable explanation for the delay in lodging her application. The only criteria in favour of such a finding is the lack of prejudice to the employer and that is not sufficient to enable a finding that there are exceptional circumstances.
Ms Pydde’s unfair dismissal application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
K. Pydde on her own behalf.
A. Roehrs for the Respondent.
Hearing details:
2017.
Melbourne:
2 October.
[1] [2011] FWAFB 975
[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[3] Ibid
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
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