Kelly Behan v Mick Neill Electrical Pty Ltd

[2021] FWC 4249

[2021] FWC 4249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly Behan
v
Mick Neill Electrical Pty Ltd
(U2021/5715)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 19 JULY 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Ms Kelly Behan (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with Mick Neill Electrical Pty Ltd (Respondent) took effect on 8 June 2021. The unfair dismissal application was lodged on 30 June 2021.

[3] Section 394(2) of the Act states 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 period of 21 days ended at midnight on 29 June 2021. The application was therefore filed 1 day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] 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

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] 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.

[7] 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 will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for 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. 5

[10] The relevant sequence of events may be summarised as follows:

•  On 8 June 2021, the Applicant was informed that her employment with the Respondent was to come to an end on that day.

•  A couple of days after 8 June 2021, the Applicant started gathering information and documents she needed to challenge the basis on which the Respondent had made its decision to terminate her employment. This included obtaining documents from third parties such as the Applicant’s general practitioner, to prove that the Applicant had been unwell and sought medical treatment when she was absent from work on personal leave. There was a delay in obtaining some of this information and documentation. For example, the Applicant’s general practitioner was on leave and her absence delayed the provision of documentation and information to the Applicant.

•  The Applicant was required to work from home on 29 June 2021 as a result of COVID-19 related restrictions. The Applicant completed her unfair dismissal application on 29 June 2021. Later on 29 June 2021, the Applicant tried to email her application to the Commission. The Applicant was unable to do so because her application, including the many documents attached to it, was about 71 pages in length and the Applicant’s home printer was not able to accommodate the scanning of so many pages.

•  The Applicant decided to wait until she attended work on 30 June 2021 to use her work printer to scan all the pages of her unfair dismissal application and email it to the Commission. The Applicant believed that she had until 30 June 2021 to lodge her application in the dismissal. The Applicant’s belief in this regard was based on her understanding that 9 June 2021 was the first day after her dismissal and adding 21 days to 9 June 2021 took the conclusion of the 21 day period to 30 June 2021.

•  The Applicant emailed her unfair dismissal application to the Commission on 30 June 2021. Because she experienced some complications in doing so, the Applicant telephoned the Commission to ensure that her application had been received. The person from the Commission to whom the Applicant spoke confirmed that her application had been received and, according to the Applicant, told her that her application had been lodged within the 21 day period.

[11] In summary, the Applicant relies on the following reasons for the delay in filing her unfair dismissal application:

•  The Applicant mistakenly calculated the 21 day period and believed that her application had to be lodged by 30 June 2021.

•  The fact that the Applicant had to work from home on 29 June 2021 as a result of the impact of the COVID-19 epidemic meant that she did not have access to her work scanner and printer on that day. The Applicant’s home printer was not able to scan a 71 page document. If the Applicant had attended her usual workplace on 29 June 2021, she says that she would have used her work scanner and printer to email her application to the Commission on that day.

[12] Although I have sympathy for the Applicant’s personal circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. First, ignorance of the 21 calendar day timeframe for lodging an unfair dismissal claim, or the correct method of calculating the conclusion of the 21 day period, is not an exceptional circumstance and does not provide an acceptable or reasonable explanation for the delay. 6 Secondly, although I accept that the Applicant would have emailed her application to the Commission on 29 June 2021 if she had attended her usual workplace on that day and COVID-19 related restrictions were the reason she did not attend her usual workplace on 29 June 2021, there was nothing preventing the Applicant from either attending an organisation such as Officeworks to scan and email her application to the Commission on 29 June 2021 or emailing her application (minus the large attachments) to the Commission from her home on 29 June 2021 and providing the supporting documents to the Commission on the following day. The reason the Applicant did not take such an alternative approach to lodging her application on 29 June 2021 was because she believed, mistakenly, that she had until 30 June 2021 to lodge her application. Thirdly, this is not a case where the Applicant was delayed in filing her application because she was misled by a third party. According to the Applicant, it was on 30 June 2021 that a person from the Commission apparently informed her that she had lodged her application within the 21 day time limit. However, that was after the 21 day time period had expired at midnight on 29 June 2021 and after the Applicant had emailed her application to the Commission. Accordingly, any misinformation provided to the Applicant about whether or not she had filed her application with the 21 day time period did not cause any delay in lodging the application.

[13] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 30 June 2021 weighs against a conclusion that there are exceptional circumstances.

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

[14] The Applicant was aware of her dismissal on the day it took effect (8 June 2021). The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[15] The Applicant gave evidence that she engaged in a communication with Mr Neill from the respondent following her dismissal to see if the matter could be resolved without the need to commence unfair dismissal proceedings. The respondent was not willing to reach such an agreement. This communication by the Applicant with the Respondent following her dismissal constitutes action to dispute her dismissal. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[16] 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

[17] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[18] The Applicant was dismissed for misconduct. The Respondent contends that the Applicant processed fraudulent payroll entries into her account in the period from 7 November 2019 until 8 April 2021. The Applicant has provided a detailed response to these serious accusations in her unfair dismissal application and the documents attached to it. The responses provided by the Applicant to a number of these matters seem plausible on their face. It would not be possible to form a concluded view about such matters in the absence of further evidence and cross examination of a number of witnesses, including the Applicant.

[19] On the basis of the material before the Commission the Applicant has at least an arguable case that her dismissal was harsh, unjust and/or unreasonable. She has raised legitimate points that would need to be examined in detail at a final hearing concerning whether there was a proper basis for the payments made to her. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in her favour of her application for an extension of time.

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

[20] 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.

[21] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[22] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging her application and although the Applicant took action to dispute her dismissal and has at least an arguable case that her dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[23] 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:

Ms Behan on behalf of herself
Mr Neill on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
July 16.

Printed by authority of the Commonwealth Government Printer

<PR731823>

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

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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

 6   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]