Krystle Gatt v Victorian Ombudsman

[2014] FWC 2711

[2014] FWC 2711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystle Gatt
v
Victorian Ombudsman
(U2014/3917)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 APRIL 2014

Application for relief from unfair dismissal; Extension of time; Application to be allowed a further period within which to make unfair dismissal remedy application refused; Application dismissed

Introduction

[1] Ms Krystle Gatt (Applicant) was dismissed from her casual employment with the Victorian Ombudsman (Respondent) with effect on 18 December 2013 when she was advised that the Respondent would not be allocating further shifts to the Applicant. On 20 January 2014 the Applicant lodged with the Fair Work Commission (Commission) an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act).

[2] An application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows¹. The Applicant therefore had until 8 January 2014 to lodge this application. As events transpired, the Applicant did not lodge an application until 12 days after the standard statutory time limit had elapsed. The Applicant therefore requires the Commission to exercise its discretion under s. 394(3) of the Act to allow her a further period within which to make this application.

[3] I have decided, after taking into account the matters set out in s. 394(3) of the Act, not to allow the Applicant a further period within which to make her application because I am not satisfied that there are exceptional circumstances to warrant the exercise my discretion. I have found it unnecessary to deal with the Respondent’s jurisdictional challenge based on the Respondent’s characterisation of the Applicant’s employment as irregular casual employment. The application for an unfair dismissal remedy will therefore be dismissed. These are my reasons for that decision.

Background and factual context

[4] The Applicant entered into a “casual employment agreement” with the Respondent on 21 March 2012². Under that agreement casual employment commenced on 2 April 2012³ and was to continue on an “occasional basis”. The casual employment could be terminated by either party giving one hour’s notice in writing to the other⁴. During a scheduled debriefing session with the Applicant’s team leader held in the afternoon of 18 December 2013, the Applicant was advised that she would not be allocated any further shifts, which the Applicant took to mean that her employment was being terminated⁵. The decision to terminate the Applicant’s casual employment appears to have been made on the basis of an assessment of audit scores resulting from an audit review recently conducted by the Respondent⁶.

[5] Mr John Taylor, the Deputy Ombudsman gave evidence that the “meeting with Ms Gatt on 18 December 2013 was conducted on the basis that Ms Gatt was a casual employee. Ms Gatt was advised of her poor performance, not as a basis for dismissing her, but to explain why shifts would not be allocated in the following year”⁷. This is, with respect, a distinction without a difference. It also appears to me to be self-serving, is analytical rather than evidence of what actually occurred and is an analysis given by a person who was not in attendance at the meeting on 18 December 2013 in circumstances where the Applicant’s former team leader, who was in attendance, was not called to give direct evidence of the event.

[6] Although the employment was not brought to an end consistently with the casual employment agreement because written notice was not given, it does not follow that there was no dismissal. It is very difficult to accept, and I do not accept, that a clear indication that no shifts would be allocated to Ms Gatt in 2014, did not involve dismissal from a position of casual employment. Even if I accept Mr Taylor’s analysis as evidence, noting that he was not present at the meeting on 18 December 2013, on a proper analysis of that which had occurred at the meeting on 18 December 2013, the Respondent advised the Applicant that it was not going to allocate any further shifts to the Applicant or at least any further shifts in 2014. The casual employment agreement provided that employment would continue on an “occasional basis”. The Respondent’s advice to the Applicant is an indication that it no longer intends to provide employment on an “occasional basis”. That advice is conduct that is indicative of an intention by the Respondent that it no longer wishes to be bound by the contract. As such the conduct was a repudiation, which the Applicant appears to have accepted thereby bringing the employment to an end. That is sufficient to bring the termination of employment within the meaning of “dismissed” in s. 386(1). I am satisfied that the Applicant was dismissed on 18 December 2013.

[7] In the evening of 18 December 2013, the Applicant sent email correspondence to the Respondent acknowledging that she had been advised earlier that day that she would no longer be allocated shifts and requested copies of the two most recent audits concerning her performance⁸. The Applicant gave evidence that she had composed the email with the assistance of her sister-in-law, that she was extremely distressed and that she was advised by her family that she should seek further clarification about what had happened⁹. I note that the email of 18 December 2013 does not make any reference to the Applicant being “extremely distressed” and is the only contemporaneous written record of what had occurred on 18 December 2013. On 20 December 2013 the Applicant travelled overseas to Thailand to commence holidays that had been earlier organised¹⁰. Whilst the Applicant was overseas she says that she had limited access to the internet¹¹ although she did access the internet on 27 December 2013 to retrieve an email that had been sent on 26 December 2013 by the Respondent in response to the Applicant’s email of 18 December 2012¹². The Respondent’s email makes clear that the Respondent regarded the Applicant’s employment to be at an end because the email concludes with the salutation “best wishes to you in your future endeavours”¹³.

[8] Whilst overseas, other than checking her email on 27 December 2013, the Applicant took no steps to make an Application to the Commission about her dismissal, to seek any advice about her dismissal, or to otherwise dispute her dismissal. The Applicant explained this in her evidence as follows:

THE DEPUTY PRESIDENT: Mr Grapsas, why don’t you let the witness give evidence. Ask questions?---So after 10 days, I did receive a response from my director. She had outlined that they would not be providing me with copies of my audit score, but that my last audit score was actually a three. It was at that point that I realised that I had been, perhaps, lied to, or, I guess, lied to in my debrief session with my manager. I was extremely distressed about that because I couldn’t, I guess, come to terms with what had actually happened, if it wasn’t a performance issue, then what was it, but I did make the decision at that point to put it aside until I got home. I wanted to check my contract and my enterprise agreement, and have a look at that. I always wanted to be in a better position to, I guess, have Internet or phone access to take the matter further, so I waited until I got home to do that.¹⁴

[9] The Applicant returned to Australia from Thailand on 6 January 2014¹⁵. The Applicant gave the following evidence about the steps that she took in relation to the dismissal on returning to Australia:

MR GRAPSAS: What date did you get back to Australia?---6 January 2014.

6 January would have been inside the 21 day period but you hadn’t resolved the matter because - did you only get the response from the ombudsman office when you got home?---No, it was 26 December that I received the response but I didn’t have Internet access until the next day, so I actually read it on 27 December.

But you were away overseas at the time - - -?---That’s right.

- - - with limited Internet access?---Yes.

Therefore, when you got home, what steps did you then take in an attempt to try and resolve the matter satisfactorily?---Sure.

Did you have any further discussion with the ombudsman office or any further correspondence?---No, I didn’t have any further discussion with the ombudsman office. What I did do was contact the Fair Work Ombudsman. The reason why I did contact the Fair Work Ombudsman, because that was the standard procedure that we - working at the Victorian Ombudsman, we advised our complainants that had employment related matters to contact the Fair Work Ombudsman, so that’s what I did.

And now the Fair Work Commission?---No, the Fair Work Ombudsman. What I did was initially consult their website and their website advised that, in relation to termination of employment matters, basically that it would be one of the things that the Fair Work Commission considered in determining whether someone had been unlawfully or unjustly terminated was whether they got a warning prior to the termination and whether they had the opportunity to rectify the matter. So based on that, I decided to contact the Fair Work Ombudsman over the phone. I did that; however, they didn’t provide me with any advice.

THE DEPUTY PRESIDENT: You returned on 6 January?---On 6 January.

You contacted the Fair Work Ombudsman initially by consulting the website?

---Yes.

Was that on 6 January?---No, that was on 7 January.

All right?---Yes. I, on 7 January, contacted the Fair Work Ombudsman via telephone in order to get some advice on how to proceed. They advised me that they couldn’t provide any advice because they weren’t sure whether state government employees were covered by the Fair Work Act and that’s why they suggested I take some legal advice. I tried to do that; I contacted several law firms. Most of them did not get back to me. A lot of them are getting back to me now, which is interesting. I was able to - I then also had a session with my psychologist on Saturday, the 11th. After speaking with her or debriefing with her, I felt that I did have grounds to take the matter further. Then we also discussed coping strategies to deal with the stress and shock that I was experiencing. I contacted more lawyers between 13 and 15 January and wasn’t responded to. I was then able to get through to a law firm that dealt with workplace matters. They had an online chat forum on their site and I spoke with a paralegal. This is on Thursday, the 16th. The person that I had spoken to had stated that I should contact Australian Dismissal Services because they specialised with the sorts of concerns that I was raising. I did that, that day. I had spoken with the general manager of Australian Dismissal Services, Peter Anderson. He informed me at that point that my claim had exceeded the time limit; however, he suggested that I conduct an assessment just to determine whether my case did have merit. I scheduled that as soon as I could, which was three days later, that was on Sunday, 19 January. The outcome of that assessment was that my case did have merit and that they suggested that even though it had exceeded the time limit, that I should put in an application. That was done that day and Australian Dismissal Services submitted my application on Monday, the 20th.

MR GRAPSAS: Can I just clarify, you had the assessment with our company on the Sunday?---Yes.

Was the reason for the Sunday, was that the first time it was available to them or to you, or to both?---Available to Australian Dismissal Services, yes.

So the first opportunity you had to have the assessment - - -?---On Sunday morning.

Right, and then my understanding was the claim was lodged the following day, Monday, the 20th?---That’s correct.

Is that correct?---Yes.¹⁶

[10] The Applicant had, during the course of 2013, consulted a psychologist, Ms Melinda Kennedy 17. On 11 January 2014, the Applicant again consulted Ms Kennedy18. On 18 January 2014 Ms Kennedy prepared a report in which she observed that on 11 January 2014 the Applicant had presented as “very upset and panicky” and that this was a “dramatic change in Krystle’s well-being”, which in Ms Kennedy’s opinion “directly related to the unexpected employment termination”19. Ms Kennedy also gave oral evidence as follows:

THE DEPUTY PRESIDENT: Ms Kennedy, I’m going to allow the ombudsman’s office to ask you some questions in a moment, but I just have a few?---Yes.

You’d agree, I assume, that any episode where a person loses their employment is stressful?---Yes.

I’ll try and get an assessment from you as to whether your assessment of Ms Gatt showed there was a heightened level of stress than would otherwise be the case. I’m assuming in every case where somebody loses their job unexpectedly, stress levels are heightened?---Sure.

Based on your observations, was there anything particular about your observations of Ms Gatt that led you to believe that her stress levels were higher than that which might otherwise be expected?---Yes, I suppose the best way for me for me to answer that would be to compare how she was presenting on 11th of the 1st to how she was presenting when she was first referred.

Yes?---She was referred due to some adjusting to some particular life issue that anyone would have found very distressing. I think that given what was going on for her at that time she actually coped quite well and amidst support she coped exceptionally well, and then when I saw her on 11th of the 1st her coping was, you know, she was distressed to a point that I had never seen before. So even though she had all those - her initial referral, what was going on in her mind, she wasn’t as distressed at that point. She wasn’t presenting as distressed at that point to me as she did on the 11th of the 1st.

Yes?---I hope that helps.

No, that is helpful. You’re not able, obviously, to give evidence about her condition in the days immediately following the dismissal because you didn’t conduct - - - ?---No, the earliest I saw Krystle was the 11th of the 1st, following - - - 

Yes?---I do have the K10 results from the GP. That was on the 10th of the 1st, which is just the day before.

And what do those tell you?---That was a K10 result of 31. When I had seen her the session - before that, the K10 result that was done on 20 November was 17.

Yes?---So just to explain what that means in terms of the score, So K10 is 10 questions scoring distress levels and 10 means that there’s no distress, 30 would be a high distress level, and 50 would be severe distress. So prior to the dismissal her score was 17, which was heading towards the no distress end of the scale. And then when I did see her post-dismissal it was the high - over high score of distress.

Yes. But in terms of - based on your experience - of what impact would a stress level at 30 have on a person in terms of their capacity to function?---Yes. Well, I had done the mental status examination, which suggested the confused and disconnected thinking, impaired cognition. So just not able to really hold a thought, carry a thought right through to its conclusion. She was sort of jumping from one thought to another, and often those thoughts were not really that related to each other. Yes, so, you know, it would have a - definitely had a very strong impact on her. She was extremely distressed, especially compared to how well she had been able to cope with other stressors in her life.

. . .

THE DEPUTY PRESIDENT: Before you do, just one more question, Ms Kennedy. Is there a diagnosis for Ms Gatt? A medical diagnosis?---Her GP has provided a diagnosis - two separate diagnoses, actually. So on 7 October 2013 there was a diagnosis of adjustment disorder, but I would like to point out that quite often that diagnosis or a labelling is not necessarily consistent with a DSM diagnosis that a psychologist would make.

Yes?---That same diagnosis was provided on 20 November 2013. However, on 10/1/14 the GP made a diagnosis of anxiety depression and no diagnosis of adjustment disorder.

Anxiety and depression?---And depression.

And did the GP indicate a view about the severity of the depression?---That it was improving.

Which presumably means that it had been worse at some point earlier?---I’m not sure. I’m not sure if they were referring to the anxiety to do with the adjustment disorder. That’s possible.

Yes, I understand?---I also - actually, the GP did a mental status examination when Krystle was first referred.

Yes?---And was everything was indicated to be normal except for sleep.²⁰

[11] During the course of her casual employment with the Respondent, the Applicant’s duties included providing telephone advice to persons making enquiries about lodging complaints with the Respondent. From time to time the Respondent would receive telephone enquiries from persons with employment related complaints and complaints about dismissal from employment. The Respondent had procedures in place for dealing with such enquiries which involved referral to an appropriate agency including to the Fair Work Ombudsman and to the Commission²¹. During the course of proceedings the Respondent produced documents prepared by the Applicant which show that the Applicant variously referred enquiries made to the Respondent which concerned employment related matters and dismissal related matters to an external agency, including to the Commission as recently as 3 December 2013²².

[12] When these documents were put to the Applicant during cross examination, the Applicant alleged that the documents had been altered and the procedure updated since the termination of employment²³. The first allegation is a serious one. It was made without any foundation, and no offer of proof was made to support the allegation. Moreover the Applicant was on notice that the Respondent would be relying on these documents because it provided copies of the documents as attachments to its outline of submissions which were filed in the Commission and served on the Applicant on 28 March 2014. The Applicant did not challenge those documents in its brief submissions filed in reply on 10 April 2014, nor did give notice of any such challenge. Furthermore Mr Taylor gave the following evidence:

Secondly, in relation to the examples of complaints registered by Ms Gatt during her employment, I should say that there is no possibility that those records have been doctored. If you look at the - by way of example, if you look at exhibit R1, the information relating to maternity leave, you will see it was registered on 21 May 2012. At the foot of the page is the date that document was printed, which was 3 March. It was registered at 3.55 pm. It was closed, if you look at the second page, at 5.10 pm the same day. That document cannot be opened and edited or changed without my direct approval. It is locked down once its closed. I can say that absolutely because I introduced this database both in the ombudsman’s office and in the Commonwealth ombudsman’s office, my former employer. Each of those cases was closed on the day it was registered, so it is simply not possible for those documents to have been doctored. Nor is it possible for anyone other than the author who received it and registered it to change it once it’s closed. That’s all I wish to add, sir.²⁴

[13] This evidence was given after the Applicant gave her evidence and was not challenged under cross examination, even though a serious allegation of wrongdoing had earlier been made by the Applicant. I reject the Applicant’s evidence about the authenticity of the documents.

[14] In my view, the documents produced by the Respondent in the proceedings seriously undermine the Applicant’s assertion that she was unaware of her legal rights, and her allegation amounts to no more than a recent invention advanced to cast doubt on documents which she had prepared and which undermined the case she was advancing. Furthermore, the baseless allegation made whilst under oath makes accepting her evidence overall all the more difficult without additional corroboration, because making the unfounded allegation combined with the inherent unliklihood of the allegation having any substance, affects the Applicant’s credibility in a serious way. I accept without reservation the evidence given by Mr Taylor in respect of the documents and I accept that the documents establish that the Applicant was well aware at the time of her dismissal, that she had the option of making an application to the Commission in relation to her dismissal or at the least that the Commission was the appropriate place at which enquiries about her dismissal could be made.

[15] During the course of proceedings there was a dispute between the Applicant and Respondent about the duration of the advance roster that was given to the Applicant²⁵ and other employees. For reasons that will become apparent I have found it unnecessary to resolve the controversy.

Principles for allowing applications to be lodged outside the prescribed time limit and application in this case

[16] The Applicant’s dismissal took effect on 18 December 2013. Her application for a remedy should have been made within 21 days after the dismissal took effect, namely by 8 January 2014. The application was lodged on 20 January 2014 and was therefore 12 days outside of the time prescribed. The Commission may allow a further period²⁶ within which an application may be made. The discretion to allow a further period will only be exercised if the Commission is first satisfied there are “exceptional circumstances”, taking into account²⁷:

n the reason for the delay; and

n whether the person first became aware of the dismissal after it had taken effect on: and

n any action taken by the person to dispute the dismissal; and

n prejudice to the employer (including prejudice caused by the delay); and

n the merits of the application; and

n fairness between the person and other persons in a similar position.

[17] It is clear, from the structure of s. 394(3) of the Act that each of these matters must be taken into account when assessing whether there exist “exceptional circumstances”.

[18] “Exceptional circumstances” are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances need not be unique, unprecedented or very rare²⁸. Before considering whether to exercise my discretion to allow a further period within which the application may be made, it is first necessary to determine whether there are exceptional circumstances.

Reason for the delay

[19] There must be an acceptable reason for the delay²⁹. The Applicant needs to provide a credible reason or credible reasons explaining the whole of the period that the application was delayed³⁰. The Applicant has advanced several reasons for the delay. First it is said that the Applicant travelled overseas on leave shortly after the dismissal, during which time she had limited access to the internet. She returned to Australia on 6 January 2014. The overseas travel had been arranged prior to the dismissal. As a consequence she was unable during this period to make an application. I do not accept that the travel prevented the Applicant from making an application within the time prescribed. First, the Applicant had time to lodge her application before her departure. No credible explanation is given for her failure to do so. Secondly, even though the Applicant has alleged that she had limited access to the Internet during her period overseas, the evidence clearly discloses that she did have access to the Internet on 27 December 2013 and could have accessed information from the Commission’s website and could have filed an application electronically by email on that day. Thirdly, when the Applicant returned on 6 January 2013, she took no steps to lodge an application and made limited attempts to enquire about her rights.

[20] The evidence is that on 7 January 2013 the Applicant sought out information from the Fair Work Ombudsman and thereafter attempted to contact some law firms to obtain legal advice. These enquiries could also have been before the Applicant departed to Thailand but they were not. Moreover, that the Commission was the appropriate body to deal with an unfair dismissal was in my opinion, a matter known to the Applicant before she departed from Thailand. This is evident in correspondence that she sent to a person making an enquiry about an unfair dismissal to the respondent on 3 December 2013³¹. In my view the Applicant’s overseas trip to Thailand is neither an acceptable nor credible explanation for the delay.

[21] The Applicant also submits that during the whole of the period following her dismissal until the time she made this application that she was suffering “extreme distress” and that she consulted a medical practitioner and her psychologist about the distress. It seems to me that the evidence discloses that the Applicant was suffering significant stress and possibly was in a depressed condition for some or all of the period in question. Ms Kennedy’s evidence establishes that the Applicant was likely suffering a degree of distress which was greater than that which might be expected ordinarily in a person whose employment has been terminated. But it does not follow that this heightened level of distress had the result of impairing the capacity of the Applicant to make an application to the point where it explains the delay.

[22] First, the Applicant gave evidence that she was able to contact the Fair Work Ombudsman on 7 January 2014. Secondly, the Applicant was able to make phone calls to a number of law firms. Thirdly, the Applicant was able to navigate overseas travel. Fourthly, the Applicant was able to find an area in which she could access the Internet on 27 December 2013, and to access an email sent to her by the Respondent. Fifthly, there is no evidence that the Applicant consulted any medical practitioner about her distress while she was overseas and she did not consult her own medical practitioner until 10 January 2014. Sixthly, the Applicant’s own evidence tells against a conclusion that her decision-making was impaired to such a degree as to provide an acceptable explanation for the delay. The Applicant’s evidence was as follows:

So after 10 days, I did receive a response from my director. She had outlined that they would not be providing me with copies of my audit score, but that my last audit score was actually a three. It was at that point that I realised that I had been, perhaps, lied to, or, I guess, lied to in my debrief session with my manager. I was extremely distressed about that because I couldn’t, I guess, come to terms with what had actually happened, if it wasn’t a performance issue, then what was it, but I did make the decision at that point to put it aside until I got home. I wanted to check my contract and my enterprise agreement, and have a look at that. I always wanted to be in a better position to, I guess, have Internet or phone access to take the matter further, so I waited until I got home to do that.³² (my underlining)

[23] On the evidence, when the Applicant arrived home she still had sufficient time within which to lodge an application within the time prescribed, but she failed to do so.

[24] Finally, there is no evidence that her cognitive functioning was impaired to such a degree as to have the result that she was unable to make an application within the time prescribed or within a short time thereafter. Ms Kennedy’s evidence is that in a K10 test conducted by the Applicant’s medical practitioner on 10 January 2014 and used to measure levels of distress, the Applicant scored 31, indicating a high level of distress but certainly not extreme. When the evidence is taken as a whole, I do not accept that the Applicant’s heightened level of distress is an acceptable explanation for any period of the delay.

[25] The Applicant also asserts that she was unaware of the 21 days time limitation applicable to an application for an unfair dismissal remedy. Mere ignorance of the statutory time limit is not an exceptional circumstance³³, nor is it an acceptable explanation for delay. It is by no mean uncommon for persons who have been dismissed to be unaware of the statutory remedies that may be available to them or the time limits that govern access to those remedies.

[26] Finally the Applicant says that the Respondent did not inform her that there were avenues that she could pursue if she had any issues arising from the termination of her employment. First, I observe that the Respondent was not under any obligation to provide such information. Secondly, the Applicant was well aware that she could pursue issues arising from the termination of employment with the Commission because that is precisely the advice that she had given persons making enquiries to the Respondent about dismissal. As the evidence discloses, the most recent such advice was given by the Applicant on 3 December 2013. To suggest that a failure by the Respondent to provide such information to the Applicant as a reason for delay, is in the circumstances, to say the least, disingenuous. The reason offered does not provide an acceptable reason for the delay.

[27] It follows that there has not been any acceptable or credible explanation provided by the Applicant for the delay in lodging this application. This factor that weighs against the Applicant.

Awareness of the date the dismissal took effect

[28] The Applicant became aware that the dismissal took effect on the day that it took effect. Consequently she had the full 21 days within which to lodge an application. In the circumstances this weighs against the Applicant.

Any action taken by the Applicant to dispute the dismissal

[29] Apart from ultimately making this application, it does not appear that the Applicant took any substantive step to dispute the dismissal, although I accept that the Applicant’s email to the Respondent dated 18 December 2013 is suggestive of some disquiet on her part about her dismissal but it falls a long way short of disputing her dismissal in any material way. The enquiries made of the Fair Work Ombudsman on 7 January 2014 and subsequent phone calls to un-identified law firms also fall a long way short of taking any substantive step to dispute the dismissal. The absence of any such steps weighs against of the Applicant.

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

[30] The Respondent, properly in my view, did not contend that it would suffer any prejudice either by reason of the delay or if the Applicant were permitted to make her application outside the prescribed time period. However the mere absence of prejudice to the Respondent does not mean it is a sufficient basis to grant an extension of time³⁴. In the circumstances of this case I am however prepared to accept that the absence of prejudice is a factor that weighs in favour of the Applicant.

The merits of the application

[31] Although the Respondent submitted that the substantive application was lacking in merit, I disagree. The perfunctory nature in which the Applicant was dealt with on 18 December 2013, the absence of any notice of the purpose of the meeting, the failure to give the Applicant an opportunity to respond to the matters raised in the audit and the failure to provide the Applicant with a copy of the audit all point to some unfairness. There is also the real possibility that there is an absence of a valid reason. Neither party led any substantive evidence going to the merits of the case. However I am satisfied based on the limited material, and accepting that the material has not been tested by way of cross examination, that the application is not without merit. Indeed it is not practical in hearings of this kind, to conduct a full evidentiary hearing to determine merit. In the circumstances the fact that the Applicant’s claim is not without merit weighs in favour of the Applicant.

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

[32] Neither party advanced any argument to address this consideration. The Respondent relied on several decisions³⁵ involving similar factual scenarios to those in the present case, and in which an extension of time was refused. I accept that the cases relied upon by the Respondent raise similar factual issues to those in the present case but they are not identical nor do those cases raise each of the same matters as arise in this case. Cases of this kind will generally turn on their own facts. I am also not aware of any application currently before the Commission which is comparable to this application. In the circumstances I regard this consideration in this case is essentially neutral.

Conclusion

[33] As I have observed in other cases of this kind³⁶, the statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application that is in place, is an expression of the Parliament’s intention that rights must be exercised promptly within a particular time so as to bring about certainty. Time limitations seek to balance a right to bring an action, against the desirability for prompt action and certainty. This is so that questions about actions that have been taken will be agitated within a particular period, otherwise that right is lost.

[34] Applications seeking relief from unfair dismissal must be made within 21 days after the dismissal takes effect. Only in exceptional circumstances should the Commission consider allowing a further period. Weighing all of the matters set out in s. 394(3), there is little in the evidence before me to establish that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application. True it is that the application has merit, but the absence of any acceptable or credible reason for the delay, the failure to take any substantive step to dispute the dismissal and the fact that the Applicant had the full 21 days within which to lodge the application because she knew her dismissal took effect on 18 December 2013, combine to outweigh this consideration.

[35] In the circumstances I do not allow a further period within which the application may be made. The Applicant’s unfair dismissal remedy application is dismissed. An order giving effect to this decision is issued separately.

DEPUTY PRESIDENT

Appearances:

S. Grapsas for the Applicant

M. Sullivan for the Respondent

Hearing details:

Melbourne.

2014

17 April.

1 Section 394 (2)

2 Exhibit R5

3 Ibid clause 4.1

4 Ibid

5 Transcript PN 51 – PN 64

6 See attachment B to Applicant' s application under section 394

7 Exhibit R8 at [10]

8 Ibid

9 Transcript PN 167

10 Transcript PN 66 and PN 74

11 Transcript PN 66

12 Transcript PN 78 and Attachment C to Applicant's application under section 394

13 Attachment C to Applicant's application under section 394

14 Transcript PN 76

15 Transcript PN 77

16 Transcript PN 77 – PN 92

 17   Exhibit R7

 18   Transcript PN 87

 19   Exhibit R7

20 Transcript PN 368 – PN 378; PN 395 – PN 401

21 See for example Exhibit R2

22 See Exhibit R1 and R3

23 Transcript PN 188 – PN 199

24 Transcript PN 459

25 See transcript PN 312 – PN 315; PN 459

26 Section 394 (2) & (3)

27 Section 394(3)

28 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [5]

29 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230]

30 See Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at [408] – [409]

31 Exhibit R3

32 Transcript PN 76

33 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at 6

34 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

35 Rose v BMD Constructions Pty Ltd[2011] FWA 673 and Wemyss v Mission Australia Employment Services[2010] FWA 1798

36 See for example Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479

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