Kirsten Saunders v Harvest Education Technical College T/A Hetc

[2016] FWC 3750

[2016] FWC 3750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kirsten Saunders
v
Harvest Education Technical College T/A HETC
(C2016/312)

COMMISSIONER CIRKOVIC HOBART, 9 JUNE 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application

[1] On 16 February 2016, Ms Kirsten Saunders (the Applicant) lodged an F1 application form with the Fair Work Commission (Commission). Later that same day a telephone call was made to the Applicant during which she clarified that she wished to lodge a general protections application involving dismissal. The Applicant advised she would lodge an amended application to this effect.

[2] On 1 March 2016, the Applicant lodged a general protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Harvest Education Technical College (HETC) (the Respondent).

[3] The Applicant commenced employment with the Respondent on 29 September 2015. She says that she was dismissed on 12 November 2015 and the dismissal took effect on that day.

[4] The Application was lodged 75 days out of time.

[5] For the reasons set out below, I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the Application will be dismissed.

Alleged Contravention

[6] The Applicant submits that she was dismissed because she was having issues with management and that the work environment was extremely stressful and contributed to her anxiety and irritable bowels syndrome. 1. A breach of s.340, 343 and 344 is alleged.

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where 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]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Background

[13] On 3 March 2016, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 13 May 2016.

[14] The Applicant was self-represented. The Respondent was represented by Mr Angus Murray of Irish Bentley Lawyers. Mr Murray sought permission to appear on behalf of the Respondent on the morning of the hearing. The Applicant did not object to Mr Murray’s submission. After hearing submissions from Mr Murray pursuant to s.596 of the Act leave was granted pursuant to s.596(2) of the Act.

Matters to be taken into account pursuant to s.366(2)

[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[16] The Applicant submits that there were a number of reasons for the delay in filing her application within the legislative timeframe. These included:

• her on-going collaboration regarding the reasons for her termination and on-going efforts made by her to discuss future contracting arrangements with the Respondent,



• the human resources advisor Ms Carolina Villamil was on leave during the period, from 12 November 2015, the date of termination, and mid December 2015, the date upon which the Applicant cites she had determined to make “inquiries” as to the taking of action against the Respondent,



• financial hardship,



• anxiety over issues relating to her employment situation and other issues,



• the ending of a long term relationship,



• intermittent internet access difficulties, and



• the need to provide rehoming for her foster cats as amongst the reasons for the delay.

[17] The Respondent submits that the factors put forward by the Applicant do not establish or sufficiently particularise factors that should sway the Commission to exercise its discretion to allow the application to proceed.

[18] In particular the Respondent relies on the Applicant’s evidence that as at mid December 2015 the Applicant was of a mind to make an application to the Commission to exercise her rights and did in fact on her own evidence make contact with the Fair Work Ombudsman and the Commission at that time. During cross examination the Applicant submitted that whilst she was trying to get things together and “hold it together” she was stressed and had other things on her mind, and further, found it difficult to access internet facilities. The Respondent submits that it is implausible that the Applicant did not have access to internet facilities between the period of her termination, 12 November 2015, and the filing of the form F1 on 16 February 2016, at least for some period. Indeed, during cross examination the Applicant admitted that there were periods of intermittent, if not regular, access to internet usage but that she needed to use the internet sparingly given that finances were an issue and that she also needed the internet usage at that time to cater to her foster cats.

[19] I am not satisfied that the Applicant has provided an acceptable reason for the not insignificant delay in lodging her Application. The Applicant on her own evidence admitted to considering lodging an application in mid-December 2015 and yet failed to lodge until 16 February 2016. The Applicant did not provide the Commission with sufficient evidence that the intermittent disruptions to internet usage, financial hardship, the Applicant’s other concerns with her foster cats and supporting a family friend who was the victim of an attack over the Christmas period were sufficient reasons to establish that she was unable to lodge an application from 12 November 2015 to 16 February 2016. I accept that the Applicant may have been suffering an anxiety and/or fatigue related illness, however on her own evidence she was still capable of dealing with a number of other issues in her life, such as supporting friends and fostering her cats.

[20] This factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her Application.

(b) Any action taken by the person to dispute the dismissal

[21] The Applicant contends that there were on-going discussions between her and representatives of the Respondent from 12 November 2015 to at least mid-December with a view to the Applicant being provided contractual ad-hoc work with the Respondent. Whilst I accept the evidence that these discussions were taking place, I do not accept that this is action taken to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[22] It was submitted on the Respondents behalf that it would be prejudiced by having to defend a claim that it would not otherwise have to address. There was also a suggestion that an application would be made for costs to be awarded against the Applicant. This suggestion was subsequently retracted and has not been considered by me. Whilst I note the Respondent’s submission, it goes more to the issue of inconvenience, as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[23] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 3 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.4 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[24] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 5 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[25] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[26] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 6

[27] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Kristen Saunders, Applicant;

Angus Murray of Irish Bentley Lawyers, for the Respondent.

Hearing details:

2016

13 May (Telephone hearing).

 1   Exhibit A -1, par 6

 2   [2011] FWAFB 975.

 3   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 6   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

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