Kirralee Morris v Gold Couture Pty Ltd, Lorene Khamis
[2022] FWC 2377
•6 SEPTEMBER 2022
| [2022] FWC 2377 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kirralee Morris
v
Gold Couture Pty Ltd, Lorene Khamis
(C2022/2713)
| DEPUTY PRESIDENT LAKE | BRISBANE, 6 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Ms Kirralee Morris (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Gold Couture Pty Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Brisbane on 29 April 2022. The Applicant began her employment on or around October 2021. The Applicant was dismissed by the Respondent on 7 April 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. To be within time, the Applicant should have lodged her application on or before 28 April 2022 and thus was one day out of time.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
On Friday, 19 August 2022, I issued directions to the parties for a telephone hearing on 5 September 2022 at 10.00 am to determine whether the application was lodged in time and if not, whether to allow the Applicant an additional period within which to lodge her application.
On Saturday, 3 September 2022 at 12.18 am, the Applicant sent an email to my Chambers that she was currently in South America.
On Monday, 5 September 2022 at 9.46 am, my Associate emailed the parties that due to the late notice, we were unable to reschedule the hearing and the hearing would proceed as listed.
On Monday, 5 September 2022 at 10.00 am, my Associate attempted to connect the parties to the hearing. The Applicant answered and initially stated that she had poor phone reception, her phone battery was low, and she did not have access to a charger. My Associate explained that correspondence was sent advising the parties that the hearing was to proceed. The Applicant then stated she was currently filming a reality television show. She asked if an adjournment were possible, and my Associate stated that one would not be possible. The Applicant then alluded to a family member passing away but then asked if her lawyer could attend in her place.
I determined to give the Applicant a further 15 minutes to allow for an alleged representative to attend, noting that we did not have any notice of representation filed.
After 15 minutes I commenced the hearing and only the Respondent was in attendance, we had not received any further update from the Applicant.
I note that following the hearing the Applicant sent an email advising Chambers of the contact details of her lawyer. It is not the Commission’s role to contact representatives to attend a hearing which has been subject to clear and timely directions.
I also note that there have been two previous conciliation attempts regarding this matter that have been held by the Commission on 1 July 2022 and 28 July 2022. Both conciliations were unable to proceed as the Applicant had failed to attend and did not provide reasons for non-attendance.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged her application on 29 April 2022.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim of the Applicant that he was dismissed.
The Applicant’s submissions
In the Form F8 filed with the Commission, the Applicant asserted that she filed the application within 21 calendar days of her dismissal taking effect. The Form F8 is dated 27 April 2022.
The Applicant was required to file submissions relating to the jurisdictional objection by 26 August. The Applicant failed to meet this deadline. I decided to grant an extension to the Applicant to allow her to file her submissions and provide reasons for failing to comply with a Direction from the Commission by 31 August. The Applicant again failed to meet this deadline. As such, the Applicant has failed to provide any evidence pertaining to the lateness of her application.
Furthermore, the Applicant did not advise the Commission that she would be overseas filming a reality television show apart from the email referred to previously. The Applicant failed to provide evidence as to why the application was received one day out of time.
The Respondent’s submissions
The Respondent’s submissions can be summarised as follows.
The Respondent relies on the fact that the application was filed on 29 April 2022, being 22 days after the Applicant’s dismissal.
The Respondent confirmed that she had informed the Applicant that her employment was terminated immediately on the morning of 7 April 2022 at approximately 10.12 am. The Applicant had not arrived for work on time at 10.00 am and had been warned on two previous occasions that her late arrival and early departures from her work was not acceptable without providing advance notice.
The Respondent gave evidence that the Applicant was frequently late to work and left work prior to the scheduled hours. The Respondent noted that she had provided the Applicant with flexibility in accommodating her personal needs but unfortunately the Applicant had not improved her attendance and her attitude was not one that engendered a cooperative and engaged team at work. In summary, the Respondent said she “could not let her continue to disrespect the whole team” and described the Applicant’s employment as being a “train wreck”.
The Respondent had paid out any entitlements that were owed to the Applicant and the Applicant had removed her tools of the trade the same day.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(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.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act.
The Applicant did not provide any submissions or evidence as required under the Directions regarding the jurisdictional objection for me to consider. I note that we did provide the Applicant with an extension of time to submit but we did not receive any material regarding the jurisdictional objection prior to the hearing.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
No submissions or evidence were received, and no testimony was provided to support that there might have been exceptional circumstances that would warrant an extension of time. The material before me was the application form that was signed and dated on 27 April 2022 which did not provide any reasons for any lateness in the application.
As the application is only considered submitted when received by the Commission, the application was filed on 29 April 2022 and not the date that it was signed.
Therefore, I do not find that there are any reasons for the delay. This factor weights against a finding in favour of an extension of time.
Action taken to dispute the dismissal (s.366(2)(b))
The Respondent attests that the Applicant did not dispute her dismissal. Without evidence to the contrary, I find that the Applicant did not dispute her dismissal generally with the Respondent.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
No evidence was presented of any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: 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 v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
Printed by authority of the Commonwealth Government Printer
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