Lauren Clayton v Complete Communication and Electrical Pty Ltd

[2021] FWC 5298

[2021] FWC 5298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 (Cth)
s.365 - Application to deal with contraventions involving dismissal

Lauren Clayton
v
Complete Communication and Electrical Pty Ltd
(C2021/3007)

DEPUTY PRESIDENT LAKE BRISBANE, 26 AUGUST 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

[1] Ms Lauren Clayton (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Complete Communication and Electrical Pty Ltd (theRespondent).

[2] The Applicant began her employment on 11 March 2020. It is uncontentious that the Respondent terminated the Applicant’s employment on 4 May 2021, effective immediately. Before I can consider the merits of the Applicant’s application, I must determine whether the application was made within time and, if not, whether an extension should be granted.

Was the application lodged within time?

[3] Section 366(1) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[4] It is uncontentious that the Commission received the Applicant’s application on 27 May 2021. This was outside of the 21 days required under s.366(1) of the Act. However, the Applicant alleges that she attempted to lodge her application on Monday, 24 May 2021 (the 21^st day following her dismissal) but was unable to do so due to technical issues that she believed were caused by the Commission. In her evidence at the hearing, she stated that she had not received an emailing confirming receipt of her application. She called the registry on 26 March 2021 and had a conversation with a registry staff member. She called again on 27 May 2021. In this second call she informed the registry staff member that due to errors in the Commission’s system, she had accidentally lodged two applications that day. She wanted one of them closed and refunded but the other to remain open. This occurred. She said she told the staff member that she had been having technical difficulties lodging the application and that she was concerned the application had consequently been lodged out of time. Her evidence was that she told the staff member that she had difficulties on 24 May 2021 as well. The Applicant said that the staff member told her they would make a note on the file.

[5] Following the hearing, I inquired of the Commission’s IT Department whether there was any reason – for example, system maintenance, outage or otherwise – that they could detect as to why an attempt to lodge an application with the Commission on 24 May 2021 may have been unsuccessful. I have been informed that there had been no scheduled maintenance was conducted at that time, nor any interruptions detected that would explain if or why a person may not have been able to lodge an application.

[6] Notwithstanding the Applicant’s assertions that she attempted to lodge the application on 24 May 2021, it is clear from the Commission’s records that no application was received on that day. Nor the day after. In fact, no application was received until three days later on Thursday, 27 May 2021.

[7] On that basis, I am satisfied that the application was not lodged until 27 May 2021, two days outside of the prescribed time frame. For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.

Consideration of whether a further period should be granted

[8] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[9] The test of “exceptional circumstances” establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australiastated that:

“[13]In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[10] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.

[11] The Applicant’s submissions may be summarised as follows:

(a) the only notification of her termination occurred by email on 4 May 2021. There was no accompanying phone call or text;

(b) she was not working at the time due to work stress. She had been issued, and then had provided to the Respondent, medical certificates for the periods of 12 April 2021 to 18 April 2021, 19 April 2021 to 30 April 2021 and 3 May 2021 to 16 May 2021. The Applicant claims she did not check her emails during this time as she was not well and did not expect to be terminated whilst on sick leave;

(c) the Applicant states she only became aware that her employment had been terminated on or around 20 May 2021. She says that she then acted immediately. It took her a couple of days to investigate how to make an application and she wanted to take some advice from Legal Aid to understand what the application was and how to make it. She then became aware of the 21-day time limit;

(d) the Applicant states that the reference on her application to the notification being on 4 May 2021 was simply referring to when the email was sent to her. That was what she understood the question to be asking. Under cross-examination, the Applicant maintained that she did not see the termination email before on or about 20 May 2021;

(e) the Applicant states she tried to lodge her application on 24 May 2021, but experienced technical difficulties. Had she been able to lodge the application successfully on that date, she would have been within time;

(f) the Applicant did not receive an email confirming that the application had been received so she called the Commission on 27 May 2021 to confirm that they had received it. They had not;

(g) the Applicant attempted to lodge the application against on 27 May 2021 and continued to claim that she experienced technical difficulties

[12] The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent submitted that:

(a) the Applicant herself has noted on the application form that she was notified of her dismissal on 4 May 2021, being when the email was sent;

(b) there is evidence of the Applicant using the work computer and interactions on her email and work portal between 4 May 2021 and 20 May 2021. I must note, direct evidence of this was not provided to me, other than the Respondent’s oral evidence to this effect;

(c) the Respondent was contacted by the Fair Work Ombudsman on 8 May 2021and was told that the Applicant’s employment period had ended on 4 May 2021. The Respondent had not previously told them of the date of termination. The Respondent submits that the only way the Ombudsman could have been aware of that information was if the Applicant herself had informed them. This phone conversation was followed up by a letter from Amanda Teow, an Inspector at the Fair Work Ombudsman to the Respondent on 11 August 2021, which stated that, “I confirm based on my call notes of a phone conversation with your former employee Lauren Clayton on 5 May 2021 at 11.30am she advised that her employment had been terminated on 4 May 2021 and she had been paid out her annual leave”. Under cross examination, the Applicant could not provide any explanation as to how the Ombudsman would know about her termination, much less the specific date, despite maintaining that she did not know about it until 20 May 2021; and

(d) the Respondent has reason to believe that the medical certificate dated 3 May 2021 was not issued by the medical practitioner it is purportedly signed by. The Respondent emailed the clinic that issued the certificate and was informed that the doctor had reviewed the medical certificate and was unable to confirm the relevant dates. The receptionist confirmed that the Respondent would be correct in thinking that meant that the certificate was never issued to the Applicant. Neither the doctor nor the receptionist provided evidence at the hearing, however the train of emails was provided and put to the Applicant. The Respondent did not believe the Applicant’s assertions that the medical certificates were duly issued.

Consideration

Reason for the delay (s.366(2)(a))

[13] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[15] While I accept the Applicant had some difficulties navigating how to make an application, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Action taken to dispute the dismissal (s.366(2)(b))

[16] The Applicant did not dispute her dismissal with the Respondent until she lodged this application on 27 May 2021. This factor therefore does not weigh in favour of an extension of time.

Prejudice to the employer (s.366(2)(c))

[17] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.366(2)(d))

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

“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.”

[19] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’ 9

[20] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.366(2)(e))

[21] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[22] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[23] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[24] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 5   [2018] FWCFB 901.

 6   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

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

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].