Lawrence v Extons Real Estate

[2016] FWC 2662

[2016] FWC 2662

DECISION

Fair Work Act 2009
s.365—General protections
Judith Lawrence
v
Extons Real Estate
(C2016/2374)
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 28 APRIL 2016
Application to deal with contraventions involving dismissal.

[1]        On 22 January 2016 Ms Judith Lawrence (the Applicant) lodged a General Protections

application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The

application alleged that the Applicant had been dismissed by Extons Real Estate (the

Respondent).

[2]        The Applicant commenced employment with the Respondent on 7 September 2015.

She was employed as a casual sales consultant in the real estate agency in Yarrawonga,

Victoria. She says that she was dismissed on 13 December 2015 and the dismissal took effect

on that day.

[3]        The application therefore was lodged 19 days out of time.

Alleged Contravention

[4]        The Applicant submits that she was dismissed because she complained about her rate

of pay and conditions and queried her employment status. A breach of s.340 is alleged.

Respondent’s Submissions

[5]        The Respondent denies these allegations and further denies that there has been a

breach of the General Protections provisions of the Act.

[6]        The Respondent says that the Applicant was a casual who was told that there was not

enough work for her. The Respondent also says that there were a number of attitude and

performance issues with respect to the Applicant’s brief work history with the Respondent.

Relevant Legislation

[7]        Section 366 of the Act provides:

366 Time for application

[2016] FWC 2662

366(1) An application under section 365 must be made:

(a)	within 21 days after the dismissal took effect; or
(b)	within such further period as the FWC allows under subsection (2).

366(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.”

Approach of the Commission

[8]        The considerations relevant to the assessment of whether exceptional circumstances

exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s

Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1;

(Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following

useful summary was provided in Nulty:

“[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.”

[9]        The onus of establishing exceptional circumstances is on the Applicant who needs to

provide a credible reason for the whole of the period that the application was delayed. (See:

Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403).

[10]      This point was emphasised by the Full Bench in the recent decision of Diotti v

Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which,

although concerned with the unfair dismissal application, contained the following statement,

which is equally applicable to a s.365 application:

[2016] FWC 2662

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia

and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw

and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-

emphasising. The delay required to be considered is the period beyond the

prescribed 21 day period for lodging an application. It does not include the

period from the date of the dismissal to the end of the 21 day period. …’

[30]      This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be

considered in order to determine whether there is a reason for the delay beyond

the 21 day period and ultimately whether that reason constitutes exceptional

circumstances.’

[31]      Hence, the decision emphasised that while the delay to be considered is the

period subsequent to the expiration of 21 days, the circumstances from the time of the

dismissal must be considered in determining whether the reason for the delay

constitutes exceptional circumstances. For example if an applicant is in hospital for the

first 20 days of the 21 day period this would be a relevant consideration if the

application was filed 2 days out of time as occurred in this matter. The reason for the

delay by reference to the circumstances from the date the dismissal took effect is as

expressed in Shaw and ANZ the correct approach.”

Commission Proceedings

[11]      On 11 February 2016, the parties were advised by the Fair Work Commission (the

Commission) that the application had not been made within 21 days of the dismissal taking

effect. Directions were issued for the filing of witness statements and submissions as to

whether the Commission should grant further time for lodgement pursuant to s.366(2) of the

Act. The matter was listed for hearing on 1 April 2016.

[12]      The Applicant was represented by Ms Tezengi, solicitor. The Respondent was

represented by Mr M Diamond of Employsure Pty Limited. Both were granted permission to

appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[13]      In deciding whether to allow a further period for an application to be made the

Commission must take into account the matters set out in s.366(2) above. I will deal with each

of those matters separately.

(a) The reason for the delay

[14]      The Applicant submits that the delay in lodging arose from uncertainty based on the

Respondent’s communications as to whether she had been dismissed and the intervention of

the holiday season. [2016] FWC 2662

[15]      Although the Commission does not determine whether a dismissal has taken place in a

s.365 application (see Hewitt v Topero Nominees Pty Ltd (2013) FWCFB 6321), for the

purposes of the s.366(2) application, I am satisfied that the date of dismissal was

13 December 2016. This should have been clear to the Applicant particularly as she had some

representation from Ms Ginny Reid at that time.

[16]      No reasonable explanation is provided for the delay in lodging.

[17]      Accordingly, the reasons for delay cited by the Applicant fall short of establishing

exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[18]      The Applicant and her representative took a range of actions to confirm and dispute

the dismissal.

[19]      However, I am not satisfied that this is a matter of significance in the circumstances of

this case.

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

[20]      Given the overall facts, the Respondent would be prejudiced by the time and costs

involved in further litigation.

(d) Merits of the application

[21]      The Applicant alleges that she was dismissed because she queried her rate of pay,

superannuation payments etc. There appears to be some substance to this given the changes in

her status.

[22]      The Respondent’s first defence is that the Applicant was not dismissed but rather

removed from the casual roster. I do not accept this but that doesn’t mean that the Respondent

could not show that financial or performance reasons were behind the dismissal.

[23]      I do not consider that the merits of the application give weight to the existence of

exceptional circumstances.

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

[24]      This factor was not addressed and has not been taken into account.

Conclusion and Order

[25]      Having considered all of the factors set out in s.366(2), I am not satisfied that there are

exceptional circumstances warranting the granting of a further period for the making of an

application under s.366(2). Accordingly, the application is dismissed.

[2016] FWC 2662

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Judith

Lawrence under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

T Tezengi, solicitor with J Lawrence, Applicant.

M Diamond of Employsure Pty Ltd with T Exton for the Respondent.

Hearing details:

2016

Telephone Hearing:

April 1.

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