Kerry Allen v Sonta Pty Ltd t/a Essential Beauty Golden Grove

[2020] FWC 3448

[2020] FWC 3448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kerry Allen
v
Sonta Pty Ltd t/a Essential Beauty Golden Grove

(C2019/7017)

DEPUTY PRESIDENT MANSINI MELBOURNE, 1 JULY 2020

Application to deal with a general protections dispute involving dismissal - application filed out of time – circumstances exceptional - extension of the time for filing allowed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s 365 of the Fair Work Act 2009 (Act).

[2] I have determined that Ms Kerry Allen (the Applicant) did not file within the statutory timeframe and to allow a further period within which to lodge her application. These are the reasons for that decision.

Was the application made out of time?

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2).

[4] The Applicant’s employment with Essential Beauty Golden Grove (the Respondent) was terminated on and with effect from 21 October 2019. The application was lodged on 15 November 2019. Accordingly, the period of 21 days ended at midnight on 11 November 2019 and the application was filed four days outside the statutory timeframe.

[5] The Applicant identified the jurisdictional issue in her original application and asked that the Commission allow a further period for the application to be made. The Respondent opposed this request. The parties made an initial attempt at conciliation, by agreement, but the matter was not resolved. Accordingly, the jurisdictional issue was referred to me for determination.

[6] In accordance with the program for hearing of the jurisdictional issue, the Applicant filed two witness statements, an outline of submissions and brief submissions in reply. The Respondent filed an outline of submissions and no witness evidence. The parties jointly requested that the question of jurisdiction be determined on the papers. I adopted that course in light of the fact that resolution of the jurisdictional question does not involve any factual disputes.

Are there exceptional circumstances?

[7] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made only if it is satisfied that there are ‘exceptional circumstances’. The matters of which I must be satisfied are set out in s 366(2) of the Act.

[8] The exceptional circumstances test establishes a high hurdle for an applicant. 1 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.2 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 can be considered exceptional.3

[9] My consideration of the matters set out at s 366(2) follows.

Reason for the delay – s 366(2)(a)

[10] 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’ or ‘credible’ explanation. 4 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.5 Ultimately, it is a question of degree and insight.6

[11] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 7

[12] The Applicant contends that the delay in filing her general protections application was due to representative error on the part of her union.

[13] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 8 In Clark v Ringwood Private Hospital,9 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;

•  A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;

•  The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged; and

•  Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. 10

[14] It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 11 However, as the Full Bench explained in Long v Keolis Downer,12 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.13

[15] The sequence of events relevant to the Applicant’s reason for the delay was as follows.

[16] On 21 October 2019, the Applicant attended a face to face meeting with Ms Waterhouse of the Respondent in which she was informed that her employment was terminated. During that meeting, the Applicant was given a letter which stated that the Applicant’s employment would not continue beyond her probationary period and that Ms Waterhouse had “come to this decision after speaking to you (the Applicant) on the 27^th September regarding your work ethic and not meeting your criteria”. The Applicant signed the letter as requested, although her evidence was that she felt under pressure to sign it. On 22 October 2019, the Applicant requested a separation certificate which was provided that same day. The separation certificate provides the reason for dismissal as “Unsatisfactory work performance” and “To (sic.) much time off to be able to meet her performance criteria”.
[17] On 28 October 2019, the Applicant contacted her union (of which she was a fee-paying member). The Applicant’s evidence was that she read the reasons given on her separation certificate to an industrial officer/lawyer of the union, and raised her concern that she had been unfairly dismissed whilst on sick leave. The Applicant said that the union’s advice to her was that she had no legal avenues to pursue as she had been employed for less than six months. There was no mention of a general protections claim.

[18] On 15 November 2019, the Applicant’s daughter was dismissed and contacted the Working Women’s Centre. The Applicant’s daughter subsequently encouraged the Applicant to contact the Working Women’s Centre because through their advice she had learned of an alternative avenue to make a dismissal related claim (a general protections claim). The Applicant then contacted her domestic violence lawyer who recommended she contact the Working Women’s Centre. At 4.21pm on 15 November 2019, the Working Women’s Centre industrial officer advised the Applicant that she may be eligible to make a general protections claim, that the 21 day timeframe for filing had passed, but the Applicant may be able to obtain an extension of the time for filing on account of her union’s representative error. The Applicant instructed the Working Women’s Centre to file this application on her behalf and the application was lodged that same day.

[19] The reason given for the delay was not disputed by the Respondent, and the Applicant’s evidence about the reason for the delay was unchallenged.

[20] On the materials before the Commission, the Applicant took steps to seek appropriate advice about her options to contest her dismissal within seven days of being dismissed. The Applicant provided her union with sufficient information to identify the potential basis for a s 365 claim. However the Applicant was not advised of this avenue and was advised that there was no legal avenue available to challenge her dismissal. In reliance on the advice of her union the Applicant did not take any further steps until 15 November 2019 when she first learned of the option to contest her dismissal by making a general protections claim. The Applicant did not then sit on her hands. She acted immediately and without delay by both seeking further advice, from a different source, and instructing her new representative to file this application that same day. The application was filed a short time (just four days) after the expiry of the statutory timeframe.

[21] I have considered that there are a range of publicly available sources of information from which the Applicant could have obtained appropriate guidance in order to make this claim within the statutory timeframe. Whilst ignorance of the statutory timeframe is not of itself a reasonable excuse for the delay, in the face of the advice from her union the Applicant accepted that she had no available legal options and it is understandable that she did not seek a second opinion or further information until the new information came to light on 15 November 2019.

[22] In the particular circumstances of this case, I consider the Applicant’s reason to be an acceptable or reasonable explanation for the delay. The finding of an acceptable explanation weighs in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal – s 366(2)(b)

[23] In respect of s 366(2)(b), I am required to take into account any action taken by the Applicant to dispute the dismissal. The Applicant did not take steps to dispute her dismissal, other than by filing this application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer – s 366(2)(c)

[24] I cannot identify any prejudice that would accrue to the company 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.

[25] Merits of the application – s 366(2)(d)

[26] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[27] The Applicant commenced employment with the Respondent on 29 July 2019. The Applicant admitted to having left work early on occasions, which she claimed were authorised by the Respondent. On 3 October 2019, the Applicant left work early as she felt unwell and the next day was admitted to hospital. She was certified as unfit for work until 25 October 2019 but returned to the workplace for the meeting of 21 October 2019 at which she was dismissed.

[28] The Applicant contends that the Respondent has contravened s 352 of the Act by dismissing her from her employment for a protected reason being her temporary absence from work due to illness or injury for less than 3 months over a 12 month period. She points to the reason provided on her separation certificate in support of this claim. Further, the Applicant submits that the Respondent was aware that the Applicant was a survivor of domestic violence and that termination for accessing domestic violence leave is a prohibited reason and in contravention of the National Employment Standards.

[29] The Respondent maintains that the Applicant was terminated for reasons which related only to her poor performance which included the Applicant’s failure to follow the Respondent’s guidelines and policies, her manner with customers, and regularly leaving work early with no explanation, medical certification or authorisation. Further, it alleges that the Applicant used the Respondent’s beauty therapy facilities and products for her personal use and that of her daughter. The Respondent claimed that it had a performance discussion with the Applicant on 27 September 2019 and that, after this discussion, it was decided not to continue with the Applicant’s employment. The Respondent submitted that it had planned to end the probationary period at the end of the shift on 3 October 2019 (hence the termination letter was dated 3 October 2019), however, as the Applicant departed early that day and then was medically certified as unfit and did not attend for work from that date, it was not until 21 October 2019 that the dismissal discussion took place.

[30] On the materials before the Commission, it is evident that 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. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to 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 – s 366(2)(e)

[31] 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. 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

[32] Having regard to the matters I am required to take into account under s 366, I am satisfied that the requisite exceptional circumstances exist. The existence of a reasonable and acceptable explanation for the delay in filing the application weighs strongly in favour of a finding of exceptional circumstances, whereas the Applicant’s failure to dispute the dismissal does not weigh in favour. The other factors are considered neutral.

[33] In my view, and on balance taking into account all the matters at s 366, the circumstances of this case are exceptional.

[34] For the above reasons, I have determined to grant an extension of time under s 366(2). Accordingly, the Applicant’s application under s 365 of the Act will be referred to the General Protections Team who will correspond with the parties regarding progress of the matter.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720649>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at[12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 3   Ibid.

 4   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 5 Stogiannidis at [39].

 6   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 7   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33];Perry at [23].

 8   See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109 as cited in [2020] FWC 3033.

 9 (1997) 74 IR 413 at 418-9.

 10   Alice Olga Papp v DS Opco Pty Ltd (trading as Harris Scarfe) (formerly PSEA Dept. Stores Pty Ltd)[2020] FWC 3033.

 11   Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers [2019] FWCFB 2759 (QGS v Rogers) at [17].

 12   [2018] FWCFB 4109 at [60].

 13 QGS v Rogers at [16].