Kerry-Ann Anderson v L'Arte Central Limited
[2022] FWC 1986
•27 JULY 2022
| [2022] FWC 1986 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kerry-Ann Anderson
v
L’Arte Central Limited
(U2022/6590)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 27 JULY 2022 |
Extension of time (s 394(3)) – no exceptional circumstances – application dismissed
This decision concerns an application made by Ms Kerry-Ann Anderson for an extension of time within which to bring her unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Ms Anderson was employed by L’Arte Central Limited (respondent), a not-for-profit social enterprise which operates a florist and café. She was dismissed on 2 June 2022 after the respondent determined that her administrative role was not needed. Section 394(2) requires an unfair dismissal application to 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 21-day period ended at midnight on 23 June 2022. The application was lodged by email to the registry of the Commission at 1.26am on 24 June 2022, one hour and twenty six minutes out of time. In order for Ms Anderson’s application to proceed, she requires an extension of time.
The Commission does not have an open discretion as to whether to extend time. Section 394(3) provides that the Commission may extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. This is to be contrasted with s 185(3)(b), which allows the Commission to extend the time within which an enterprise agreement must be filed simply if it considers that it is fair to do so. I adopt the broad approach to the expression ‘exceptional circumstances’ set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section in determining whether there are exceptional circumstances. These matters are as follows: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a similar position.
The Act does not indicate what kind of reason for delay might tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable explanation’. In relation to the reason for her delay, Ms Anderson submitted that she had miscalculated the 21-day period and believed that the period expired at midnight on 24 June 2022. However, a miscalculation is not an acceptable reason for the delay, nor is it an exceptional circumstance. Information concerning lodgement requirements is available on the Commission’s website. Ms Anderson said that she had been very busy, as she is a single mother, and had been studying and looking for work. But being busy is not exceptional or a good reason for the delay. Ms Anderson also said that she was feeling overwhelmed by having been dismissed, and that she was in poor mental health at the time. No medical evidence was submitted. Ms Anderson has not established that poor mental health prevented or seriously impeded her from lodging her application on time. The application was filed only a short time after the end of the 21-day period, however this is not exceptional. A small delay is still a delay. I am not satisfied that Ms Anderson has an acceptable or reasonable explanation for the delay, nor do I consider that there are exceptional circumstances surrounding the delay. This weighs against an extension of time.
I consider the following matters to be neutral considerations. First, Ms Anderson was notified of her dismissal on the day that it took effect. Secondly, Ms Anderson did not take action to dispute her dismissal apart from filing her unfair dismissal application. Thirdly, there is no apparent prejudice to the employer in the present circumstances. Finally, I do not consider that there are any matters that are relevant to the question of fairness as between Ms Anderson and other persons in a similar position.
As to the merits of the application, the respondent contended that Ms Anderson’s dismissal was not unfair because her administrative role was no longer required following a restructure and the introduction of software which would automatically perform a number of her duties, with the remaining duties to be shared between managers. The company said that Ms Anderson was not qualified to perform other available roles. Ms Anderson submitted that her role was still required as most of her duties could not be undertaken by the software. She contended that she was dismissed because the wife of the company’s director needed a paid position and took over her role, and that the respondent did not make any attempt to redeploy her into other positions which she could reasonably have performed, such as working front of house or in the kitchen.
An application to extend time is in the nature of an interlocutory application (see s 396). In this case, the merits turn on disputed points of evidence that would need to be tested. Much would depend on factual findings. I consider the merits to be a neutral consideration.
Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. None of the considerations in s 394(3) weighs in favour of an extension. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Ms Anderson’s unfair dismissal application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
K. Anderson for herself
S. Cheeseman for the respondent
Hearing details:
2022
Melbourne
27 July
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