Kirsty Burgess v Event Safety Management Pty Ltd
[2024] FWC 1935
•23 JULY 2024
| [2024] FWC 1935 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kirsty Burgess
v
Event Safety Management Pty Ltd
(C2024/3053)
| COMMISSIONER SCHNEIDER | PERTH, 23 JULY 2024 |
Application to deal with contraventions involving dismissal
Ms Kristy Burgess (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Event Safety Management Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
It appears that the application may have been filed outside of the statutory time period prescribed. Before dealing with the dispute, I must be satisfied that the application was not made out of time.
Dismissal date
Section 366(1) of the Act provides that such an application must be made:
a)within 21 days after the dismissal took effect; or
b)within such further period as the Commission allows.
As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties do not dispute that the dismissal took effect on 17 April 2024.
The final day of the 21-day period was therefore 8 May 2024, and ended at midnight on that day. The application was made on 9 May 2024.
The application was made one day late. As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Extension of time
Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:
a)the reason for the delay; and
b)any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]
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.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
I set out my consideration of each matter below.
Consideration of Criteria
What are reasons for the delay?
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 8 May 2024. The delay is the period commencing immediately after that time until 9 May 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant provided the following reasons as contributing to the delay:
· The Applicant is not familiar with the General Protections application process and was waiting for support from a community legal center prior to completing her application.
· The Applicant submits that as she is self-represented this resulted in a delay in her filing her application.
· The Applicant submits that she was not aware that the 21-day filing period did not exclude weekends.
· The Applicant submits that she was required to attend medical appointments at Hospital on 3 May 2024 and 8 May 2024.
The Applicant provided copies of medical certificates dated 3 May 2024 and 8 May 2024, confirming she attended medical appointments on those days.
In relation to the reason for the delay, the Respondent submits that the circumstances outlined by the Applicant do not support a finding of exceptional circumstances.
The Respondent notes that the Applicant contacted the Fair Work Ombudsman on 18 April 2024 and was provided with general information and resources available to the public to assist in the filing of a claim.
The Respondent submits that the resources provided included clear information on how the 21-day time limit is calculated.
The Respondent submits that the Applicant has not provided any convincing evidence or explanation as to why she was not aware of the filing requirements, when the information had been provided to her by the Fair Work Ombudsman.
The Respondent also highlights that, from the evidence provided, the Applicant was seeking information from the Commission’s website about her employment and workplace rights from as early as 10 April 2024 (7 days before her termination). The Respondent submits that this is further evidence that the Applicant had ample opportunity to file her application with the Commission within the required 21-day period.
The Respondent acknowledges that the Applicant provided medical certificates for two days (3 May and 8 May 2024). However, the Respondent submits that the Applicant has not provided any explanation or evidence that supports the conclusion that the Applicant was so incapacitated that she was unable to file her application on the other 19 days of the 21-day filing period.
Regarding the above, the Applicant’s most reasonable excuses for the delay are those related to her medical treatments. It is understandable that such circumstances could, in some circumstances, reasonably contribute to some form of delay and could support a finding of exceptional circumstances. Conversely, the reasons put forth regarding the Applicant’s unfamiliarity with the application process are not particularly supportive of a finding of exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that she took action to dispute the dismissal. The Applicant submits that she filed an unfair dismissal application within the 21-day filing period.
The Commission’s records do not reflect any such application being made. Rather, from the material provided by the Applicant, it appears the Applicant is referring to her enquiry with the Fair Work Ombudsman on 18 April 2024. The Fair Work Ombudsman responded the same day and provided the Applicant with information as to how she could seek to challenge her dismissal.
Having regard to the matters I have referred to above, I accept that the Applicant made an enquiry to the Fair Work Ombudsman and not that some other dismissal dispute was lodged prior to the current application. It is clear that disputation of the dismissal had been on the Applicant’s mind prior the action of filing this application.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted, by way of need to expend additional resources and costs on legal fees to defend the claim if an extension of time is granted.
There is no suggestion from the Respondent that there would be a prejudice by way of evidence issues or similar.
The Applicant submits the delay in question is minor (only one day), therefore there is no material prejudice to the Respondent if an extension of time is granted.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[10]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[11] 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.[12]
The Applicant provided evidence explaining why she was unable to file her application on two days out of the twenty-one-day period, being 3 May 2024 and 8 May 2024. However, the Applicant has not been able to provide any submissions or evidence that supports the position that the Applicant was so incapacitated for the whole or majority of the 21-day filing period which would warrant an extension of time.
Although understandable that medical treatment may contribute to a delay supportive of exceptional circumstances, the medical evidence before the Commission does not suggest that the Applicant was incapacitated for an extended period or to the extent that she was unable to file within time.
I accept that the Applicant may have made an innocent error in misunderstanding or misinterpreting that weekends and public holidays are included in the 21-day filing period. However, ignorance of the law is not supportive of a finding of exceptional circumstances. The Commission has established that ignorance of the 21-day filing period is not an exceptional circumstance and I see no reason to depart from such a finding.
The Applicant being self-represented is not particularly supportive of a finding of exceptional circumstances. The Commission does not require parties to be represented and many self-represented parties are able to adequately inform themselves of the lodgment period and file within time.
Finally, I accept that the Applicant made an enquiry to the Fair Work Ombudsman following her termination. However, it seems the Applicant did not lodge a dismissal dispute prior to the 21-day filing period. From the information provided to the Applicant by the Ombudsman on the day she made her enquiry, it is evident that she had not made an application. Therefore, I do not consider any delay arising out of this to be supportive of a finding of exceptional circumstances.
Having regard to all the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[13]
COMMISSIONER
Appearances:
K Burgess, Applicant.
A Talbert of Adept Legal Solutions on behalf of the Respondent.
Hearing details:
2024.
Perth (by video):
July 22.
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Ibid; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, at [13].
[5] Ibid.
[6] [2018] FWCFB 901, [39].
[7] [2018] FWCFB 901, [40].
[8] Ibid, [17].
[9] [2015] FWCFB 287, [12].
[10] [2011] FWAFB 975, [36].
[11] Ibid, [13].
[12] Ibid.
[13] [PR777415].
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