Leigh-Anne Bissett v Lenard's Pty Ltd
[2023] FWC 1642
•7 JULY 2023
| [2023] FWC 1642 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leigh-Anne Bissett
v
Lenard’s Pty Ltd
(U2023/4591)
| DEPUTY PRESIDENT LAKE | BRISBANE, 7 JULY 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Ms Leigh-Anne Bissett (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Lenard’s Pty Ltd (the Respondent).
On the Form F2, the Applicant states that she commenced her employment with the Respondent on 24 May 2021 and was notified of her dismissal on 4 May 2023. The dismissal was effective on the same day.
The Applicant lodged her application on 26 May 2023. The application was lodged 1 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was held before me on 30 June 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(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 like position.”
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 Australia stated 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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to be accepted, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
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, the Full Bench noted:
“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.” [5]
It is 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]
The Applicant submitted the following on 4 June 2023 regarding her reasons for delay:
She had difficulties with some tasks resulting from a brain injury and attached a clinic letter in support of this claim.
Before the redundancy, she was approached by the Respondents to discuss downsizing her team and was in shock and stress when there was no notice or attempts to re-deploy her.
She was not aware of her legal rights until 7 days after her final pay on 11 May 2023 and had a dispute over a deduction for her mobile phone.
She had tried to resolve the dispute stating it caused her more stress.
She had contacted the Fair Work Ombudsman on 25 May 2023 and stated she was under the impression she had 21 business days and not 21 calendar days, and states had she not suffered from her brain injury or the Respondent not supporting her during her recovery and ignored her medical advice, she would have met the deadline.
I am not satisfied that there was a sufficient reason for delay. The Applicant’s clinic letter states that her injury occurred on 20 March 2022 and she had been working with this injury until the date of her dismissal. I am sympathetic that it may have caused additional difficulties in lodging the application, but her actions in trying to resolve the dispute indicates that she was capable to lodge an application with the injury.
There are a number of resources available through a search on the internet regarding the unfair dismissal process which the Applicant was able to do. Ignorance of the legislative timeframe has been found not to be an acceptable reason for delay.
I find this weigh against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
the Applicant acknowledged in her oral evidence that she was paid her redundancy and was aware of her dismissal on 4 June 2023. The Applicant also states that she was aware of her legal rights on 11 May 2023. Regardless of the situation which the Applicant wishes to rely on, the Applicant was aware of her dismissal before the 21-calendar day timeframe.
This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take to dispute the dismissal. The Applicant only disputed a deduction made to her account regarding a mobile phone expense on 26 May 2023. This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not raise any contentions regarding prejudice. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[7] 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.”
When provided the opportunity to provide further submissions on why the Applicant was out of time, she had responded to the issues of the genuine redundancy. Without a hearing on the merits, 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.394(3)(f))
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.[8]
In Gaelene, Manson v Marthakal Homeland Resource Centre Inc [2015] FWC 2880, Commissioner Bissett found that anxiety that did not totally incapacitate the Applicant was not a sufficient reason for an extension of time and stated at [13]
“It is not unusual for a person to suffer anxiety following a dismissal… It is also not unusual for a person to be under the care of a doctor for that anxiety”.
This consideration weighs against an extension of time.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
L. Bissett appearing for herself as the Applicant.
L. Poulter appearing on behalf of the Respondent.
Hearing details:
Brisbane
30 June 2023
Hearing via MS Teams
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
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