Leanne Smith v In2 Motion Pty Ltd

[2018] FWC 7450

[2018] FWC 7450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leanne Smith

v

In2 Motion Pty Ltd

(U2018/11224)

DEPUTY PRESIDENT DEAN SYDNEY, 7 DECEMBER 2018

Application for an unfair dismissal remedy – extension of time

1. Ms Leanne Smith was employed by In2 Motion Pty Ltd (In2 Motion) until 20 August 2018.

1. On 22 August 2018 Ms Smith lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that she had been unfairly dismissed by In2 Motion (the “first application”).

1. On 18 September 2018 Ms Smith discontinued the first application during a conciliation conference with a Fair Work Commission Conciliator, and filed a Notice of Discontinuance the following day in relation to that application.

1. On 1 November 2018 Ms Smith lodged a second application which contains the same grounds as the first application (the “second application”). Her second application was made 52 days outside the 21 day period prescribed by s.394(2) of the Act.

1. The matter was listed for hearing on 6 December 2018 to determine whether Ms Smith should be granted an extension of time pursuant to s.394(3) of the Act to make the second application. At the hearing Ms Smith appeared on her own behalf. Mr J Pilgram appeared on behalf of In2 Motion.

1. Section 394(3) of the Act provides:

(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

1. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Ms Smith.

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

“[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.”

1. I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

1. Ms Smith submitted that the principle reason for the delay in filing her second application was that she had discontinued the first application by mistake.

1. At the hearing, Ms Smith confirmed the matters set out in her written statement of 11 November 2018 and expanded on some aspects of that statement. She gave evidence that she had been struggling with her dismissal and that she was “anxious and confused” at the time of the conciliation.

1. Ms Smith indicated in her oral evidence that she had obtained legal advice prior to lodging her application as well as by telephone during the conciliation. Ms Smith gave further evidence that she had obtained legal advice from her lawyer (via the lawyer’s receptionist) during the conciliation to file the form F50 – Notice of Discontinuance. Ms Smith said that she “thought I was just dismissing the conciliation and not the whole process”.

2. The second reason for the delay in lodging the second application was that Ms Smith had seen her doctor on 19 September 2018, when he prescribed her with anxiety medication and advised her to relax on her pre-planned, four week, holiday.

3. Ms Smith returned from her holiday on 25 October 2018 and then met with her lawyer on 29 October 2018, who advised her that she should not have filed the Notice of Discontinuance.

4. Ms Smith did not produce any medical evidence as to her incapacity to file the second application prior to 1 November 2018.

5. In response, In2 Motion submitted that there were no exceptional circumstances demonstrated by Ms Smith which would warrant the granting of an extension of time.
   In2 Motion submitted that:

   a)   The applicant was aware of the need to lodge her application in a timely manner as evidenced by her first application for unfair dismissal

b)   A lengthy conciliation took place on 18 September 2018. The applicant decided to discontinue her application after taking time to deliberate with her solicitor at length via telephone during the conciliation process. The applicant signed and filed a F50 Notice of Discontinuance, the day after the conciliation conference had concluded. During the conference it was made clear to the applicant that filing a Notice of Discontinuance was one of her options and that by taking that option her claim would be finalised.

c)   The applicant claims that she went on a 4 week overseas holiday and that it was only after returning that she could take further action. However, there was a period of 10 days between the conciliation conference and her departing on her overseas holiday. The fact that no action was taken during this period either by the applicant or through solicitors during this period and the 4 weeks she was overseas (when she would have been able to communicate with the Commission or her solicitors via telephone or email), is evidence that she did in fact intend to discontinue her application and abandon her unfair dismissal claim. 

d)   The applicant obtained legal representation and consulted with her solicitor throughout the process of the previous claim, including prior to lodging, during the conciliation and prior to ending the claim. Given that she had legal advice, her claims of misunderstanding the process are not supported by the evidence. 

e)   Reference was made by the applicant to her mental health although no evidence has been provided which suggests that she was rendered mentally incapacitated, such that she would be unable to pursue her initial application or understand the process.

1. Mr Pilgram made further oral submissions on behalf of In2 Motion during the hearing which supplemented its written submissions.

1. Having considered the evidence and submissions, I find that Ms Smith’s reasons for the delay in lodging this application weigh against the granting of an extension of time. I accept that Ms Smith had the benefit of legal advice during the first application and in relation to its discontinuance. This supports a finding that the decision to discontinue the first application was not a mistake. Upon becoming aware that her first application had been discontinued, Ms Smith did not take prompt steps either to re-lodge her application or instruct her lawyer to do so while she was on holiday. There was no medical evidence brought by Ms Smith to support a finding that she was incapacitated and therefore unable to make her application promptly after she says she became aware that the first application was discontinued.

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

1. There is no dispute that Ms Smith’s employment ended on 20 August 2018. I find that this this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

1. Ms Smith lodged the first application on 22 August 2018, which was discontinued by her on 18 September 2018. I find that this weighs against the granting of an extension of time.

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

1. I am not persuaded that granting an extension of time would result in a prejudice to In2 Motion, notwithstanding it would be reasonable for In2 Motion to assume that the discontinuance of the first application was the end of the matter. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of granting an extension of time.

The merits of the application

1. For the purpose of determining whether to grant an extension of time for Ms Smith to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[2]

1. Ms Smith strongly denied any wrongdoing and contended that the allegations against her were not properly investigated and the decision to terminate her was predetermined.

1. In2 Motion submitted that it took advice before it made a decision to dismiss Ms Smith, and that her dismissal was not unfair.

1. On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

1. Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[3] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[4]

1. I do not consider that there are other relevant persons in a similar position to Ms Smith, and I therefore find it to be a neutral consideration.

Conclusion

1. Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Ms Smith. Her circumstances are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:
L Smith, on his own behalf.

J Pilgrim, for In2 Motion Pty Ltd

Hearing details:

2018.
Sydney:
December 6.

[1] [2011] FWAFB 975.

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

[3] [2015] FWC 8885.

[4] Ibid at [29].

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