Krystal-Brooke Williams v Total Tools T/A Total Tools Narre Warren

[2016] FWC 3950

[2016] FWC 3950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystal-Brooke Williams
v
Total Tools T/A Total Tools Narre Warren
(U2016/2362)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Krystal-Brooke Williams alleged that the termination of her employment by Total Tools Narre Warren was unfair. Cranbourne Tools Pty Ltd filed a form F3 - Employer Response and denied the allegation.

[2] Given Ms Williams’ dismissal took effect on 21 April 2016, her unfair dismissal application lodged on 19 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“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]

The reason for the delay

[5] In her written material, Ms Williams gave evidence that she spoke to “Fair Work” on 29 April 2016 and was advised that she required a separation certificate in order to lodge her claim. Ms Williams provided a reference number however this is not a system used by the Commission. It is a system used by the Fair Work Ombudsman. She said she contacted Fair Work again on 2 May 2016 to advise that she had not received her certificate. Ms Cartwright, Cranbourne’s HR Manager, gave evidence that Ms Williams received the certificate on 10 May 2016. Ms Williams doubted this was the date but she could not recall when she received the certificate.

[6] At the hearing Ms Williams agreed that she had contacted the Ombudsman and she was advised to contact the Commission, which she did, but could not recall when she contacted the Commission. She was told that she needed to lodge an application.

[7] Further Ms Williams said she was waiting for her letter of termination before she lodged her application. Ms Cartwright said that such a letter had been sent by email to Ms Williams at the time of the dismissal.

[8] At the hearing Ms Williams said that she thought that the 21 days was 21 business days, though she was unable to explain why she thought this, as all references on the Commission’s website to 21 days uses the term 21 calendar days. Further she said her workers’ compensation lawyer told her she needed her letter of termination prior to lodging her application. Ms Williams did not provide any evidence from her lawyer to support this evidence and given Ms Williams advised that she still did not have her termination letter, its absence did not prevent her from lodging her claim.

[9] Finally Ms Williams said that she was still undergoing treatment for her injury and she was on medication. Ms Williams did not provide any medical advice to support any contention that her condition prevented her from lodging her application.

[10] There is no requirement for an employee to obtain a separation certificate to lodge an unfair dismissal application. There is nothing on the Commission’s website that tells applicants that they require an employment separation certificate to lodge an unfair dismissal application. Further the application form and the Commission’s website make it clear that the application must be lodged within 21 calendar days of dismissal.

[11] Further I accept Ms Cartwright’s evidence that Ms Williams was provided with the separation certificate on 10 May 2016. Ms Williams was not able to recall when it was received. There is no explanation other than her belief that she had 21 business days to lodge her application, as to why it took her another nine days to lodge her application.

[12] I am not satisfied that Ms Williams has a reasonable explanation for the whole of the delay. She provided no reasonable explanation as to why she thought that she had 21 business days. It is well established that ignorance of the time limit is not unusual and I am unable to find that Ms Williams suffered any particular disability which would lead to a finding that her ignorance of the time limit was reasonable. Even if I accepted that it was reasonable to await the separation certificate, which I do not, given she had that certificate on 10 May 2016, she had not provided a reasonable explanation for the subsequent delay.

[13] This weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[14] Ms Williams was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[15] Ms Williams denied the allegations put to her at the meeting on 21 April 2016. She did not do anything other than lodge this application to dispute the dismissal. I consider this criterion to be a neutral consideration.

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

[16] There was no evidence or submission about any prejudice to Cranbourne. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[17] In the matter of Kornicki v Telstra-Network Technology Group 2the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.” 3

[18] For the purpose of determining whether to grant an extension of time to the applicant to file her application, the Commission “should not embark on a detailed consideration of the substantive case.” 4

[19] Cranbourne have made serious allegations against Ms Williams - which she denies. Cranbourne said it has 15 employees. Therefore, it will be necessary for Cranbourne to call evidence to prove, on the balance of probabilities, that the conduct it alleges in fact occurred. It will not be sufficient for them to put forward evidence on a belief that it occurred. No such evidence was put before me and Ms Williams denied the allegations.

[20] While I am not able to determine the factual dispute between the parties at this hearing, it cannot be said that Ms Williams’s case is without foundation. This criterion weighs in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

[21] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”6

[22] There were no submissions that there were any persons in a similar position.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. While the merits weigh in favour of a finding of exceptional circumstances, this is not a case where the merits are such as to weight against a lack of a reasonable explanation for the whole of the delay. Ms Williams’ application for an extension of time is dismissed and accordingly her application is dismissed. An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

K. Williams on her own behalf.

A. Cartwright representing Total Tools T/A Total Tools Narre Warren.

Hearing details:

2016.

Melbourne:

June 17.

 1   [2011] FWAFB 975 at [13].

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

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

 5   [2015] FWC 8885.

 6 Ibid at [29].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR581762>