Laura Yammouni v Therexa Pty Ltd the trustee for the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates
[2018] FWC 7516
•18 DECEMBER 2018
| [2018] FWC 7516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Laura Yammouni
v
Therexa Pty Ltd the trustee for the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates
(C2018/5183)
| Deputy President Beaumont | PERTH, 18 DECEMBER 2018 |
Application to deal with contraventions involving dismissal– whether application filed within 21 days – extension of time granted –exceptional circumstances.
This decision concerns an application (the Application) made by Mrs Laura Yammouni (Mrs Yammouni) for the Fair Work Commission (the Commission) to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The respondent, Therexa Pty Ltd the trustee for the Heath Family Trust T/A Activate Physiotherapy & Clinical Pilates (Activate), objected to the application on the basis that it was filed outside the 21 day period prescribed by s 366(1).
Activate, through its director, Mr Ben Heath (Mr Heath), declined to participate in a conciliation conference. Therefore, a hearing was listed for 12 December 2018.
Neither party was represented by a paid agent or legal representative at the hearing. However, Mrs Yammouni was represented by her husband (Mr Yammouni).
A legal representative assisted Activate to prepare submissions and witness statements; on that basis, a request for permission to represent under s 596 of the Act was made. I was not persuaded that the request for permission was required given the operation of rule 12 of the Fair Work Commission Rules 2013 (Cth) which exempts, subject to any contrary direction made under rule 12(2), the making of written applications and written submissions, the lodgement of documents with the Commission, and correspondence with the Commission from the general prohibition in s 596(1).[1]
However, if I am wrong, permission was granted under s 596(2)(a) as I was satisfied that the matter was one involving a complex fact scenario, coupled with a jurisdictional objection. Further, I considered the determination of the matter may be made more difficult and complex by the discordant approach that had been adopted.[2] Therefore, I considered that granting permission for Activate to be advised when preparing its materials, would likely strike a balance, and temper the material provided to the Commission.
At the hearing, Mrs Yammouni gave evidence on her behalf, and Mr Heath and Mrs Brooke Leisle Heath (Mrs Heath), who did the bookkeeping for Activate, gave evidence on behalf of Activate.
Section 366(1)(b) extends the time period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances the factors in s 366(2)(a) – (e) are taken into account. Having considered the relevant factors, I find that, on balance, and by a slim margin, the circumstances are such that they are exceptional. It is on this basis that I grant Mrs Yammouni a further period within which to lodge her Application under s 366(2). The Application may be lodged by 17 September 2018. The Application will progress by way of a conference at a time and date to be advised.
The reasons for my decision follow.
Background
Mrs Yammouni started work with Activate as a Physiotherapist on 5 September 2017. Her hours of work were 8am until 5pm on Monday, Tuesday and Thursday. Mrs Yammouni gave evidence that when negotiating her hours of work with Mr Heath she made it clear that she was unable to work weekends and after hours due to parental responsibilities.[3]
On 8 March 2018, Mrs Yammouni reports informing Mr Heath that she was pregnant and that she planned to take parental leave from mid-September 2018 until mid-January 2019, at which time she would return to work.[4] Mrs Yammouni gave evidence that Mr Heath responded by asking Mrs Yammouni to continue working until the end of August, as he had other physiotherapists on leave; she agreed.[5]
Mr Heath gave evidence to the effect that in the period of January to June 2018 he was concerned about the limited number of new patients that Mrs Yammouni was attracting to the clinic. He said further that her recurring patient numbers were lower than the average across the clinic. Mr Heath tendered into evidence a handwritten document (Exhibit R2) which was purported to be data that showed the number of Mrs Yammouni’s patients over the same period.
The data showed that the number of new patients and recurring patients had increased over the period. There was no data tendered to show the number of patients that other physiotherapists were treating. However, Mr Heath gave evidence that the patient ratio levels of Mrs Yammouni were low in comparison to other physiotherapists. Mrs Heath confirmed this in her evidence, and said that she had informed Mr Heath that Mrs Yammouni was not generating enough patients to cover the wage paid to her. It is observed that no documentation was provided to evince the expected patient ratio, or key performance indicators in this respect.
In late March to early April 2018, Mr Heath said he received a patient complaint that treatment by Mrs Yammouni had increased a patient’s neck pain and neural symptoms.[6] Mr Heath asserted that he counselled Mrs Yammouni about patient numbers and the treatment provided to patients approximately four times. However, there was no written documentation showing that such performance counselling had occurred. Mr Heath admitted that the last discussion he had with Mrs Yammouni concerning her performance occurred in or around April 2018.
According to Mrs Yammouni, on 14 June 2018, Mr Heath asked to speak to her privately after a patient consultation.[7] Mrs Yammouni’s evidence was that at the meeting Mr Heath informed her that her recurring patient numbers were lower than the average across the clinic, and that most other physiotherapists were encouraging multiple visits after the first consultation; he said that her numbers were not reflecting this.[8] Mrs Yammouni said that Mr Heath then proceeded to inform her that he could not afford to continue paying her as an employee as her billing numbers were not high enough.[9]
Mrs Yammouni said that before the meeting on 14 June 2018 there had been no formal warnings, coaching, patient management, or discussion of a requirement to increase patient returns.[10] Further, she said that Mr Heath had advised her that if she had worked after hours or weekends she could have had better numbers and that there would be no need for the conversation.[11] Mr Heath denies making this comment. Mrs Yammouni’s evidence was to the effect that she had made it clear from the outset that there were limitations on her working hours.
According to Mr Heath, Mrs Yammouni’s patient numbers did not improve in April and May, and in June, he terminated Mrs Yammouni’s employment after it became apparent to him that her level of experience and competence were not that which she stated in her job application.[12]
On 15 June 2018, Mrs Yammouni received an email from Mr Heath stating that he did not want to terminate her involvement with Activate, and hoped that she would continue as a contractor.[13] Mr Heath continued:
The best way forward from here is to continue as is for the next 4 weeks notice period and then transition to a contractor arrangement (50% of billings) where you can schedule & treat your Women’s Health patients, FitRight Ax and Ante/Post natal classes in the clinic at times which are mutually convenient, with no obligation to see a certain number of patients or in the clinic for a minimum number of hours.
Mrs Yammouni said that she asked for a sub-contractor agreement in writing, and Mr Heath advised he would provide one.[14] Mr Heath said that Mrs Yammouni was given 4 weeks’ notice of the termination of her employment on 14 June 2018, and he confirmed the termination in writing on 15 June 2018.[15] On 17 June 2018, Mr Heath said that he received an email from Mrs Yammouni in which she stated that she ‘[understood Mr Heath’s] desire to terminate her as a salaried employee’.[16]
Mrs Yammouni gave evidence that on 16 June 2018 she presented to work as normal, on the basis that she was still employed as she had not been given the sub-contractor agreement.[17]
On 6 July 2018, Mrs Yammouni said that she again requested from Mr Heath a copy of the sub-contractor contract, but one was not provided.[18] On 9 July 2018 she verbally questioned Mr Heath about the new contract and he said that the terms were those set out in his email dated 15 June 2018. Mrs Yammouni said that she continued to work for the next few weeks under the assumption that a contract would be provided, and she would work out the issues with Mr Heath concerning the training agreement.[19]
On 25 July 2018, Mrs Yammouni said that she had a discussion with Mr Heath where it was decided that she would continue conducting group classes until mid-September, and then she asked why she had received a fortnightly pay slip but no money. In response Mr Heath was said to have informed Mrs Yammouni that he was withholding pay due to costs owing to him for the course that the clinic had sponsored her to complete in November 2017.[20] Mrs Yammouni acknowledged signing a training agreement before completing the course, but observed that her liability to repay Activate arose only if she left Activate or failed to finish the course.[21] Mrs Yammouni held the view that Activate was unable to make the deductions under the training agreement because, although she was changing her employment status to a contractor, she was not leaving Activate.
Mr Heath gave evidence that Mrs Yammouni’s notice period ended on 12 July 2018. He said that from that time, the initial offer to utilise his rooms was making the working relationship adversarial. This change in relationship culminated in him receiving an email from Mrs Yammouni on 26 July 2018.[22]
Mrs Yammouni’s email to Mr Heath dated 26 July 2018 about the training agreement stated:
Activate Physiotherapy (your business) continues to employ me, however you have changed the type of employment to contractor. I have never had any intention not to work for your business.
As you have altered the employment contract and taken the required steps to alter my employment conditions the cost of the course falls to Activate Physiotherapy under the Fair Work Act 2009 …
As a contractor and as per our correspondence, I expect that I will be paid 50% of the total billings I achieve fortnightly (as per the Nookal client list and billed hours) into my nominated bank account fortnightly in arrears. I will pay my own super and tax from this…
On 27 July 2018, Mrs Yammouni attempted to check her roster and patient load for the week but was unable to access the work system. On 30 July 2018 she emailed reception and Mr Heath requesting an explanation why she was unable to access the system. On 31 July 2018 she received an email from Mr Heath stating:
Without prejudice
Dear Laura
Your employment was terminated on grounds of your performance.
I have finalised your pay up to your termination date as per our contractual agreement…
Mrs Yammouni stated that on 7 August 2018, after she was unable to contact Mr Heath, she decided to make an application for an unfair dismissal remedy (the UD Application).[23] After lodging the UD Application with the Commission, she was paid the monies outstanding on her payslip.[24]
Mrs Yammouni discontinued her UD Application on 17 September 2018 after realising that Activate was a small business employer, and thereafter made the Application on 17 September 2018.
Mrs Yammouni’s submissions
Notwithstanding the issuance of comprehensive directions and resources being provided to both parties regarding the Application, Mrs Yammouni’s written submissions did not address the out of time application nor whether or not there were exceptional circumstances such that the Commission should grant an extension of time.
Regarding oral submissions, Mr Yammouni submitted that the circumstances were exceptional because of the unusual and uncommon way in which Mrs Yammouni was dismissed and transitioned into a contractor arrangement, and that while this was occurring Mrs Yammouni continued to work upholding her obligations, notwithstanding that she was pregnant and had a dependent child at home, and an absent husband. Further, while Mrs Yammouni initially made the UD Application on the basis of her understanding that Activate was not a small business employer, she discontinued that application once she was informed that it was, and very soon thereafter made the Application.
Activate’s submissions
Activate advanced that the effective date of the termination of employment was 12 July 2018, and Mrs Yammouni lodged her Application on 17 September 2018. It was further advanced that the delay of 2 months was unexplained and wholly unacceptable particularly in circumstances where Mrs Yammouni had lodged the UD Application on 7 August 2018. The UD Application was discontinued when Activate informed Mrs Yammouni that she had not served the minimum qualifying period of employment with Activate, a business that was said to be a small business employer. Mr Heath denied having discriminated against Mrs Yammouni.
Extension of the 21 day period
Consideration now turns to whether to extend the 21 day period within which the Application was to be brought.
In order for Mrs Yammouni’s Application to proceed, it is necessary for her to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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 similar position.
It has been said that proceedings not commenced in time should not be entertained.[25] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows, that an applicant has a considerable onus to convince the Commission to exercise the discretion.[26]
In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[27] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[28] 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 can be considered exceptional.[29]
In the recent decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters clarification was provided regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[30]
At the commencement of the hearing the parties were referred to s 366(2) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.
Reason for the delay
In Aaron Pottenger v Department of Caffiene T/A Two Feet First,[31] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[32] or a reasonable explanation.[33] It is not the case, however, that the applicant needs to provide an acceptable, reasonable or for that matter a credible explanation.[34]
The absence of an explanation for any part of the delay, will usually weigh against an applicant in such an assessment.[35] Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.[36]
Having considered the evidence before me, I am satisfied that Mrs Yammouni was dismissed on or around 12-13 July 2018 and thereafter the relationship between the parties was one of a contract for service. While Mrs Yammouni disputes this and considers that she remained an employee until her last day of work on 26 July 2018 or 31 July 2018, the evidence showed Mrs Yammouni confirmed that she would pay her superannuation and tax. Further, Mrs Yammouni was free to set her own schedule with regard to patient numbers, classes and other sessions, and the arrangement was that Activate would take 50% of billings. Further, Mrs Yammouni requested the sub-contractor contract to sign, and it is evident from the email of Mr Heath dated 31 July 2018 that the dismissal is referred to in the past tense.
If I am wrong and the relationship continued to be a contract of service then the date of dismissal would have been 31 July 2018, which still renders the Application has having been made out of time.
The evidence shows that Mrs Yammouni initially made the UD Application on 7 August 2018, and discontinued it on 17 September 2018. From the evidence adduced at hearing, it appeared that Mrs Yammouni made the UD Application on the basis that she considered Activate was not a small business employer. Mrs Yammouni’s evidence was that past discussions with Mr Heath led her to form the view that Mr Heath had been operating two businesses. On becoming aware that Activate asserted it was a small business employer, Mrs Yammouni promptly discontinued the UD Application. She then opted to pursue the Application that is currently under consideration. She did so in a timely manner.
It is clear that Mrs Yammouni possessed the sensibility to challenge her dismissal by making the UD Application, and had researched the implications regarding a small business employer. However, whilst employed up until 12 July 2018, she did not appear to challenge the transition to a contractor arrangement, her having been notified that her employment was terminated. Further, in the period where she was working from 13 July to 26 July 2018 at Activate, and received 50% of billings, Mrs Yammouni did not make an application of any type.
Mrs Yammouni’s evidence was that she accepted the contractor arrangement because the alternative was not having any work at her stage of pregnancy. Given she was approximately 8 months pregnant, it would prove difficult to secure ongoing employment.
As a self-represented applicant, it can be assumed, and the evidence shows, Mrs Yammouni made enquiries that enabled her to make the UD Application; notwithstanding that it may have been misconceived. Having recognised that the UD Application was misconceived, Mrs Yammouni discontinued it, and immediately made the Application.
In the decision of Nulty the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’, it was said that:
[I]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
While Nulty referred to the ignorance regarding the statutory time limit, the observation made was that an employee, who is aggrieved at being dismissed, ordinarily ought to be expected to seek out information on any remedy they may have in a timely fashion. In the circumstances of this case, Mrs Yammouni initially chose to pursue a remedy that perhaps was not open to her because she may have not served the minimum employment period. Consequently, she chose to discontinue that UD Application. However, she did not pursue that very application until 7 August 2018. On the evidence before me it was apparent that the employment relationship ended on 12 July 2018.
Ultimately, the responsibility to seek out information on any remedy rests with the applicant. If the applicant gets it wrong through her or his ignorance and pursues a remedy that may not be open to her or him this will not necessarily constitute a credible explanation for part or the entirety of the delay; much turns on the particular circumstances of the matter.
In the decision of Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 (Green), the applicant made an application for an unfair dismissal remedy but was advised he had not completed the minimum employment period. Having been informed of this, the applicant sought advice and while he initially asserted having received incorrect advice, ultimately he pursued an application under s 365. The Deputy President in Green found:
The differences between an unfair dismissal remedy application and an application for the Commission to deal with a dismissal related general protections dispute may, it must be acknowledged, confuse an unrepresented person seeking to dispute a dismissal. The Applicant acted promptly in challenging his dismissal by lodging an application he was not entitled to make. Thereafter he sought some advice and following consultation with staff of the Commission he acted reasonably promptly to lodge the application subject of this decision. This is not a case where the Applicant sought to test the jurisdictional limits of his UD application. Rather, once he was advised that his UD application was beyond jurisdiction he took steps to discontinue the application and to make an appropriate application. The UD application in substance alleged a breach of the general protections provisions of the Act. The delay in bringing this application was principally because the Applicant made the wrong application in respect of that which was in substance the same complaint. Whilst the period of delay would have been shorter had the Applicant made the general protections application by email instead of post, he nonetheless acted promptly once told that the UD application was beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation for the delay and this weighs in the Applicant’s favour.
I have considered the content of the Mrs Yammouni’s UD Application and observe that she asserted she had been discriminated against on the basis of her pregnancy. Mrs Yammouni decided in the first instance to make the UD Application on the basis she considered she had been unfairly dismissed and was satisfied that Activate was not a small business employer having researched the point. However, the UD Application was not made within the prescribed period under the Act. While Mrs Yammouni asserted that she continued to be employed past 12-13 July 2018, based on the evidence before me I do not consider that to be the case for reasons explained.
There was no evidence to show that Mrs Yammouni was illiterate, spoke English as a second language, or in some other way had such mental incapacity that rendered her incapable of discerning the application open to her given that which she asserted. I do not consider that Mrs Yammouni’s pregnancy or family responsibilities constituted an acceptable reason for the delay in making the Application.
However, I was nonetheless persuaded by Mrs Yammouni’s assertion that she did not make the UD Application until she had finished working for Activate because the alternative was that if she did not accept the contractor arrangement she would be out of work due to the stage of her pregnancy. Whilst unpalatable that a woman in the latter stage of pregnancy may have reduced job prospects, I consider that Mrs Yammouni’s reason for making the UD Application late is reasonable. Further, Mrs Yammouni made enquiries in an attempt to discern whether Activate was a small business employer. Once satisfied that it was not, she made the UD Application only to later find out from information provided by Activate that it was. On becoming aware of the jurisdictional hurdle with the UD Application, Mrs Yammouni addressed this most promptly by filing the Application.
On balance, and by a slim margin, in the circumstances of this particular case, I find the reason for the delay an acceptable one. This weighs toward a finding of there being exceptional circumstances.
Action taken to dispute the dismissal
It is evident that Mrs Yammouni did not initially contest her dismissal but after a period, sought by a series of emails, to clarify and request the sub-contractor arrangement. While Mrs Yammouni says she questioned the validity of the sub-contractor arrangement, the evidence shows that Mrs Yammouni acquiesced to the proposed new circumstances of a contract for service. In an email dated 6 July 2018 to Mr Heath, Mrs Yammouni stated:
Hi Ben
As discussed yesterday could you please provide me with a new contract outlining our new agreement including room hire for FitRight purposes no later then end of business day Monday.?
This will ensure I have enough time to look over the contract to ensure we are in agreement before I make the transition to contractor from employer role on the 16th August 2018 as previously stated by you.
Regards,
Laura
In a later email Mrs Yammouni corrected herself referring to 16 July rather than 16 August 2018. However, Mrs Yammouni gave evidence that she adopted the path of accepting the contractor the position because to do otherwise would have resulted in her being absent work in circumstances of her being heavily pregnant. Mrs Yammouni considered that the circumstance of her advanced pregnancy would deter prospective employers from employing her.
On the evidence before me it is not apparent that Mrs Yammouni disputed the dismissal when informed her employment would come to an end and it was put forward that she would transition to a contractor. However, I consider that there is a plausible reason for this and consider it a neutral factor.
Prejudice to the employer
I cannot identify any particular prejudice that Activate would face if an extension of time is granted. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.
Merits of the application
The nature of the matter is such that consideration must be given to whether the Application was made within the time period required in s 366(1) and whether an extension of time in which to make the Application should be provided. These are initial matters to be considered before the merits of the Application.
The merits of the Application have not been fully tested. However, it is apparent from the evidence of Mr Heath and Mrs Yammouni, Mr Heath informed Mrs Yammouni that one of the reasons for her dismissal was her inability to generate the ‘numbers’ by encouraging multiple visits. The evidence provided to the Commission showed an increase in new patients and recurring patients during the relevant period. While Mr Heath referenced Mrs Yammouni’s low patient ratios and informed the Commission that they were below what was expected, there was no evidence comparing Mrs Yammouni’s patient ratios with the patient ratios of other physiotherapists or their patient data regarding new and recurring patients. Further, there was no documented evidence setting out key performance indicators with regard to patient numbers or ratio.
Additionally, there was no written evidence before the Commission showing that performance management, counselling or coaching had been provided to Mrs Yammouni. Mrs Yammouni’s evidence was that the first time she had seen data showing the new patients and recurring patients she had generated, was the meeting held on 14 June 2018.
It is observed that it is Activate that bears the onus to show that it did not terminate the employment of Mrs Yammouni to remove her rights to parental leave, it did not change the work relationship with Mrs Yammouni because of her parental responsibilities or workplace rights, and that she was not forced into a sham contract. Mrs Yammouni contended that during her employment there was no evidence produced to her which demonstrated her patient numbers were low until the meeting on 14 June 2018. Prior to then she had not been informed she was underperforming, had not received any coaching and had not been warned that she was at risk of losing her position.
Mrs Heath gave evidence that she had, at one stage, prepared a written warning for Mr Heath to give to Mrs Yammouni concerning her performance, but Mr Heath would not give it to Mrs Yammouni because she was pregnant. Further, Mr Heath acknowledged that there were 2 months between the last time he reported having spoken to Mrs Yammouni about her performance (Mrs Yammouni disputes being spoken to about her performance) and the meeting in which he dismissed her.
While it was the case that Mr Heath was dissatisfied by the treatment that Mrs Yammouni had provided to a patient, had concerns about Mrs Yammouni’s ‘numbers’, and he considered that her level of experience and competence were not what she stated in her job application,[37] he advised Mrs Yammouni that she could continue to operate out of Activate rooms as a contractor. The 50% of billings were to cover costs such as room use, utilities, booking system and so forth. It appears most odd that Activate would be content to have Mrs Yammouni operate her own business from their premises in circumstances where there was a question about her competence. While it may be the case that Mrs Yammouni would hold herself out to be her own business, she would, nonetheless, be providing services from the premises of Activate. As such, it appears unusual for Activate to place at risk its reputation by permitting a person to use its infrastructure, facilities and so forth, in circumstances where Mr Heath had terminated the employment of Mrs Yammouni for, amongst other factors, her competence, or alleged lack thereof.
It is appreciated that the merits of the Application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. However, based on the material filed and the evidence presented at hearing, I find that the Application has merit. Therefore, in the circumstances of this matter, I consider this to be a factor that weighs toward a finding of exceptional circumstances.
Fairness as between the applicant and other persons in a similar position
There is no information regarding fairness between Mrs Yammouni and other persons in a similar position and as such I consider this a neutral factor.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am to take into account under s 366(2), I am satisfied that the requisite exceptional circumstances exist. Whilst I acknowledge that Mrs Yammouni did not make her Application within the prescribed period, I have found that there was an acceptable reason for the delay; which in combination with the merits of the Application, weigh toward a finding of exceptional circumstances. The other factors are neutral.
In my view, the circumstances of this case are exceptional when considered together. Therefore, I have concluded it would be fair and equitable to extend the period in which the Application is made.
DEPUTY PRESIDENT
Appearances:
Mr Richard Yammouni for the Applicant
Mr Benjamin Heath for the Respondent
Hearing details:
09:00 (AWST) Wednesday, 12 December 2018.
<PR703045>
[1] Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.
[2] David Waszeniuk v Bedford Phoenix Incorporated[2015] FWC 6899.
[3] Witness Statement of Laura Yvette Yammouni dated 20/11/18 (Yammouni Statement) [1].
[4] Ibid [2].
[5] Ibid.
[6] Witness Statement of Benjamin Brooking Heath dated 28/11/18 (Heath Statement)
[7] Yammouni Statement [3].
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Heath Statement.
[13] Yammouni Statement [4].
[14] Ibid [4].
[15] Heath Statement.
[16] Ibid.
[17] Yammouni Statement [5].
[18] Ibid [9].
[19] Ibid [10].
[20] Ibid [7].
[21] Ibid.
[22] Heath Statement.
[23] Yammouni Statement [14].
[24] Ibid [14].
[25] Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[26] Ibid.
[27] [2011] FWAFB 975, [15].
[28] Ibid [13].
[29] Ibid.
[30] [2018] FWCFB 901, [38] (emphasis in original).
[31] [2018] FWC 3403
[32] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[33] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, [16].
[34] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.
[35] Ibid [39].
[36] Ibid.
[37] Heath Statement.
Printed by authority of the Commonwealth Government Printer
1