Lilly K L Munro v Momentum Traffic Control Pty Ltd

[2021] FWC 6031

[2021] FWC 6031

FAIR WORK COMMISSION

DECISION

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

Lilly K L Munro
v
Momentum Traffic Control Pty Ltd
(C2021/4599)

DEPUTY PRESIDENT LAKE BRISBANE, 30 SEPTEMBER 2021

Application for extension of time to file unfair dismissal application – extension granted.

[1] Lilly K L Munro (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 Momentum Traffic Control Pty Ltd (theRespondent).

[2] The Applicant began her employment on or around 25 March 2021. The Applicant was sent a letter on 14 July 2021 which stated that her employment was terminated, effective immediately. Though there was some confusion amongst the Applicant and her representative about the date of termination – up until the filing of their submissions they maintained it was 15 July 2021 – it is clear the correct date was 14 July 2021. That being the case, when the application was lodged on 5 August 2021, it was one day out of time. 1 Consequently, for the Applicant’s application to proceed, she must obtain an extension of time, a course which the Respondent opposes.

[3] Section 366(2) of the Act provides that the Commission may allow a further period for a general protections application involving dismissal to be made if it is satisfied that there are “exceptional circumstances” taking into account:

(a) the reason for the delay;

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

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

(d) the merits of the application; and

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

[4] The test of “exceptional circumstances” establishes a high barrier for an applicant. 2 In Nulty v Blue Star Group Pty Ltd, the Full Bench of Fair Work Australiastated that:

“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.”  3

Applicant’s position

[5] The Applicant and her representative submitted that her circumstances are exceptional for several reasons. I have summarised the most persuasive below.

[6] First, the Applicant’s health at the time her dismissal and the following 21 days. The Applicant had stage four endometriosis with associated bowel and kidney issues. These conditions were serious and caused the Applicant considerable physical pain and concern. However, she had for some time put off having the necessary surgery to deal with these issues because she is a single parent to three young children and was worried about her capacity to care for, and financially support, them if required to have time off to undergo and recover from the surgery. The surgery itself is complicated and requires the availability of three expert surgeons at the same time. She was terrified about having the surgery but was told that to delay the surgery any longer could be fatal. This, understandably, caused her considerable distress. Her mental state was not good.

[7] Even after the decision was made that she would have the surgery, the Applicant faced delays due to the effects of COVID-19 on the hospital system. On 14 July 2021, the Applicant was told that she had been put on a priority list and was essentially “on-call” for whenever the requisite surgeons were available to conduct the procedure. She had to make the necessary arrangements for the care of her children. That was the same day as her dismissal. The Applicant submits this should be taken into consideration when considering why her circumstances were exceptional.

[8] About four days before 3 August 2021, the Applicant received a call from the pre-admissions nurse and was told she was to have the urgent surgery on 3 August 2021. She was to prepare herself for surgery, and part of this involved taking strong medication (as part of a clinical trial) and fasting.

[9] The Applicant did in fact have the surgery on 3 August 2021. She was clearly incapacitated on that day and was on strong medication following the operation.

[10] Second, the Applicant states that she took action to dispute her dismissal. She contacted the Human Rights Commission the day before her termination to inquire about what she could do in relation to the alleged sexual harassment, stalking and bullying she was experiencing at work. She contacted them again the after her termination and was informed they could not assist now that she had been terminated but there were options available to her – including by making a claim in the Fair Work Commission and that she should contact a lawyer. She headed that advice.

[11] Initially the Applicant alleged that thought she was aware of 21-day time limit from her legal representatives, she had so much else going on with her surgery, that she was on strong medication from her surgery and was navigating the care of her children that she had simply not been able to meet it. Further, the spontaneous nature of the surgery meant that it could not be factored into the preparation of the Commission application. However, during hearing, the position changed.

[12] That brings me to the third exceptional circumstance relied upon by the Applicant, namely, representative error. It must be noted that this was only raised during the course of the oral hearing. While that is not ideal, and the Respondent cautioned me against placing too much weight on the submission and errors made on this point, it is necessarily relevant to my consideration.

[13] The Applicant had first spoken to her lawyers on 13 July 2021, the day before her termination, about pursuing a claim against the Respondent arising out of alleged sexual harassment and stalking behaviour. She contacted them again on or around 14 July 2021 after the termination took place to notify them of that development. However, at the time she was not sure if she would be able to afford to engage their circumstances. It was not until 21 July 2021 that the Respondent was formally engaged. On that day, the Applicant met with the legal representative who appeared on her behalf at the hearing, as well as the principal of the firm. Based on the advice they provided, the Applicant decided to make a general protections claim. Her legal representatives advised her of the strict time limitation, however, at that time they erroneously calculated when that time limitation would expire using 15 July 2021 as the dismissal date. That was incorrect. The Applicant and her representative proceeded on this basis and consequently, at the time of lodging the application, thought they had done so on the 21^st day and therefore within time.

[14] Fourth, the Applicant alleged that another factor on her mind was her fear of the Respondent and that he would send people to her house to discourage her from pursuing the application or badmouth her so she could not obtain further work. This was a serious concern as she had three children to look after.

[15] Finally, the Applicant also asserted that there would be minimal prejudice to the employer by allowing extension and that there was a reasonable question to be answered and case to be tried. In light of all of the above, the Applicant submits that a consideration of each of the factors in s.366(2) would support a granting of the extension.

Respondent’s position

[16] The Respondent claims there are no exceptional circumstances in this case. The Respondent accepted that the Applicant was clearly stressed at the time, juggling her termination and caring responsibilities. However, they rejected that either of those factors were exceptional. The Respondent asserted that the Applicant had not adequately explained the reason for the delay. The Respondent did not accept that the abdominal surgery and representative error constituted exceptional circumstances, particularly in circumstances where the Applicant had only been medically incapacitated for one day and had the benefit of legal advice throughout the entire period. Further, the Respondent stated that it was abundantly clear from the termination letter that the Applicant’s employment had been terminated on 14 July 2021 and consequently, despite the evidence provided by the Applicant’s legal representative, the Respondent claims there is no credible explanation for why she was misconceived of effective date of dismissal. Further, the Respondent asserts that the Applicant’s evidence was inconsistent and evasive and should thus be rejected. Her allegations in respect of the Respondent are scandalous, her application is without proper basis and is spurious in nature.

[17] The Respondent went on to assert that I must not simply look at the Applicant’s surgery and the existence of the representative error. Rather, I should have regard to the true reason for the delay in the filing of the application. The true reason was, accordingly to the Respondent, two-fold. First, the Applicant had provided her representatives with incorrect instructions, namely that she had been terminated on 15 July 2021. Second, the reason the Applicant’s lawyers had not lodged the application by the requisite date was because the Applicant had been uncontactable for several days. That was not the fault of the lawyers, but rather a failure on the part of the Applicant to take the necessary steps to initiate her claim within the prescribed time limit. The Respondent asserted that to grant the extension of time would reward her from remaining uncontactable.

[18] The Respondent drew my attention to the fact that when determining whether an extension should be granted, the Commission must consider the reason for delay over whole period rather than just after time limit as expired. 4 The Respondent accepts that while the Applicant’s surgery made her medically incapacitated for a day, it did not preclude her from making the application on another day within the 21 day time period.

Consideration

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

[19] 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 5 or a reasonable explanation.6 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.” 7

[20] 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. 8

[21] I am satisfied that the reasons put forward by the Applicant constituted exceptional circumstances. While alone the Applicant’s undoubtedly stressful health issues and caring responsibilities may not have met the high bar required, the existence of representative error has persuaded me that exceptional circumstances exist in this case. Regardless of whether the Applicant had at some stage instructed her representatives that she had been terminated on 15 July 2021, it was for the representative to look at the documentation and apply the statutory timeframe. The representative accepted that she had made an error in the calculations which contributed to the application being lodged out of time. On that basis, I am therefore satisfied that exceptional circumstances exist in this case. I consider this factor in favour of dismissing the jurisdictional objection.

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

[22] The Applicant contacted the Human Rights Commission for the purpose to obtaining guidance as to what steps might be open to her. She then engaged legal advice for the purposes of taking steps to dispute the dismissal. I consider this factor in favour of dismissing the jurisdictional objection.

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

[23] The Applicant submitted that allowing the extension of time would not prejudice the employer. The Respondent has submitted that to allow the application to proceed, would in effect, reward the Applicant for being uncontactable by her representatives and that to allow the application to proceed would cause prejudice to the Respondent (though no specific details of that prejudice are listed). Nevertheless, I consider this factor to be neutral with respect to the jurisdictional objection.

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

[24] When considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. It is well-established 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.” 9 Evidence on the merits is rarely called at an extension of time hearing so the Commission “should not embark on a detailed consideration of the substantive case.”10

[25] Without having all the evidence before me, I consider this factor to be neutral with respect to the jurisdictional objection.

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

[26] 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. 11

[27] 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

[28] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that exceptional circumstances exist in this matter.

[29] I order that the extension of time be granted. My Chambers will contact the parties to list the matter for conference.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734462>

 1   Fair Work Act 2009 (Cth) s.366.

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

 3   [2019] FWC 25 at [13]. This decision was later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.

 4   [2016] FWCFB 349 at [31].

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

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

 7   [2018] FWCFB 901 at [39].

 8   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.

 9   Kornicki v Telstra-Network Technology Group, PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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

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