Leigh Scully v Tinko Pty Ltd T/A the Koorabup Motel

[2014] FWC 3588

[2014] FWC 3588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leigh Scully
v
Tinko Pty Ltd T/A The Koorabup Motel
(U2014/5571)

DEPUTY PRESIDENT BOOTH SYDNEY, 29 MAY 2014

Termination of employment - application for an unfair dismissal remedy - application for an extension of time.

[1] Ms Leigh Scully was employed as a co-manager of The Koorabup Motel in Denmark, Western Australia, from 1 October 2008 until her dismissal which coincided with the dismissal of her husband, also co-manager.

[2] Ms Scully lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 13 March 2014.

[3] I note that Ms Scully cites her employer as The Koorabup Motel in the Form F2 application whereas her employer uses the name Tinko Pty Ltd T/A The Koorabup Motel on the Form F3 response to the application. No objection is raised in relation to the naming of the employer and for the purpose of this decision I will adopt the name Tinko Pty Ltd T/A The Koorabup Motel (Tinko).

[4] Tinko object to Ms Scully’s application on the grounds that it was not lodged within the 21 day time period required by the Act.

[5] Ms Scully says she was given notice of dismissal on 9 January 2014 and the dismissal took effect the same day with two weeks notice in lieu being paid. Tinko says that Ms Scully was given notice on 10 January 2014 and the dismissal took effect on 1 February 2014. The application was lodged on 13 March 2014. If Ms Scully is correct then the application was lodged on day 63 after the dismissal took effect. To have been within time the application would have had to have been lodged on 30 January 2014. If Tinko is correct then the application was lodged on day 40 after the dismissal took effect. To have been within time the application would have had to have been lodged on 22 February 2014. In either case the application has been lodged out of time. For the purpose of this decision it is unnecessary to determine the correct date the dismissal took effect as between the two dates cited.

Directions

[6] On 11 April I wrote to the parties bringing their attention to s.394 of the Act and the matters to be addressed in submissions with directions as follows:

“The applicant is to lodge a submission in support of an extension of time with these Chambers, and serve a copy on the respondent, by close of business on 24 April. The applicant should indicate whether she seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision without a hearing, known as making a decision on the papers.

The respondent is to lodge a response to this submission with these Chambers, and serve a copy on the applicant, by close of business on 7 May 2014 and indicate whether it seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision on the papers.

The applicant is to lodge any reply she wishes to make to the respondent’s submissions on 14 May 2014.

If both the applicant and the respondent agree to the decision being made on the papers Deputy President Booth will consider whether a decision on the papers is appropriate and if so, make her decision soon thereafter. If either party seeks a hearing of the matter, or Deputy President Booth considers that a hearing is appropriate, the matter will be listed soon thereafter. The parties will be advised of the course of action to be adopted.”

[7] Submissions dated 15 April 2014 were received from Ms Scully on 28 April 2014. Submissions were received from Tinko on 7 May 2014. Submissions in reply from Ms Scully were received on 13 May 2014.

[8] Neither Ms Scully nor Tinko sought a hearing of the matter and this decision is based on the material provided by the parties commonly known as a decision on the papers.

[9] Ms Scully bears the onus of satisfying the Commission that it should exercise its discretion pursuant to s.394 of the Act to extend the time for the making of the application.

Legal framework

[10] In my considering the submissions in this matter I have had regard for s.394 of the Act which reads as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.

[11] The Act makes it clear that an extension of time may be granted by the Commission if there are exceptional circumstances, that is, the judgement to be made is still the Commission’s to make.

[12] McHugh J’s decision in the High Court judgement in Brisbane South Regional Health Authority v Taylor (Brisbane South Regional Health Authority case) 1 in an appeal against a judgement in the Court of Appeal of Queensland that had allowed an appeal against a decision of the District Court of Queensland to refuse an extension of time in which to commence an action makes the point clearly. He says at page 554:

“Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.”

[13] So it is in this jurisdiction. There are certain matters set out in s.394(3)(a) to (f) that I must take into account in determining whether I am satisfied that there are exceptional circumstances, however, I must then apply my discretion as to whether an extension of time should be granted. In the words of McHugh J in the Brisbane South Regional Health Authority case I must decide whether “justice will be best served by excepting the particular proceedings from the general prohibition”.

Reasons for delay

[14] Ms Scully says that in the period immediately following her dismissal she was travelling by road to Sydney from Western Australia and that it took time to adjust to the fact that both she and her husband had lost their jobs. She also contends that her husband was seeking to resolve the issues surrounding her dismissal by Tinko. She says that she did not know that there was a 21 day time limit for lodging applications and this would appear to be the key reason why an application was not made whilst travelling and adjusting to the fact that both she and her husband had lost their jobs. There was nothing otherwise to stop Ms Scully making an application whilst travelling or experiencing understandable emotional turmoil following a change in life circumstances.

[15] Tinko submit that these reasons are not exceptional and they do not support her application for an extension of time.

Other factors

[16] In relation to the other factors that I am required to take into account in coming to a conclusion, Ms Scully does not contend that she was not aware that she had been dismissed. In fact, she says her dismissal took effect before the date submitted by Tinko. She makes no submissions concerning action taken to dispute the submission save the making of the application that is the subject of this decision. Tinko contends that it would experience prejudice if Ms Scully was to be granted an extension of time because the passage of time may have dimmed the memories of potential witnesses. This is a factor to be considered but I think the delay in this case is not of such a magnitude that it is a compelling factor. I conclude that there would be no prejudice to Tinko if an extension of time was granted. The merits of the substantive application reveal a contest of facts and conclusions such that this factor is neutral in my consideration. It is not contended that there is anyone in a similar position to Ms Scully and so this factor is not relevant.

Consideration

[17] I have considered Ms Scully’s circumstances in relation to her reasons for delay and the other factors I am required to take into account in making my decision. There is nothing in her circumstances that I consider exceptional or “out of the ordinary course, or unusual, or special or uncommon” to use the words of the Full Bench of Fair Work Australia, the predecessor to the Commission, in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 2 I note that the Full Bench in this decision made the point that “mere ignorance of the statutory time limit...is not an exceptional circumstance.”3

Conclusion

[18] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I have decided against granting Ms Scully an extension of time in relation to her application. Her application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Final written submissions:

13 May 2014

 1 (1996) 186 CLR 541

 2   [2011] FWAFB 975

 3   Ibid., [14]

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