Linda Connor v Paul Kirk, Roberts & Co

[2015] FWC 7335

[2015] FWC 7335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Linda Connor
v
Paul Kirk, Roberts & Co
(U2015/9104)

DEPUTY PRESIDENT SAMS SYDNEY, 26 OCTOBER 2015

Termination of employment – application for an unfair dismissal remedy – legal secretary –application lodged outside of statutory time limit – whether exceptional circumstances established to accept application out of time – medical condition – difficult personal circumstances – applicant aware of statutory requirements – no reasonable explanation for long periods of inactivity– admissions of disrespect and rudeness – denial of poor performance – applicant’s claim not without merit – exceptional circumstances not established – application dismissed.

BACKGROUND

[1] Ms Linda Connor (the ‘applicant’) filed an application with the Fair Work Commission (the ‘Commission’) for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) on 6 July 2015. On 2 September 2013, the applicant commenced employment as a secretary for a small legal practice, Paul Kirk, Roberts & Co (Chrislin Nominees Pty Ltd) (the ‘respondent’) in Adelaide, South Australia. Mr Paul Kirk is the Principal of the firm, of which there are five other employees.

[2] The applicant was dismissed on 2 March 2015 with the reasons for her dismissal stated in the separation certificate as ‘substantial productivity reduction and to not follow instructions and rudeness and disrespect’. However, for present purposes, it is unnecessary to make findings on these matters, nor do I need to consider whether the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code. That this is so, may be readily apparent from the dates of dismissal to the date of the filing of the application, being some 126 days, meaning that the application was lodged 105 days outside the 21 day statutory time limit set by s 394(2)(a) of the Act. However, ss 394(2)(b) and (3) provide the basis for the Commission’s discretionary determination of whether an unfair dismissal application should be accepted out of time. Sub-section (3) is set out as follows:

(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.

The applicant asks the Commission to determine that her unfair dismissal application should be accepted out of time due to ‘exceptional circumstances’ as set out in sub-section (3) of s 394 above.

[3] The matter was first allocated to O’Callaghan SDP. His Honour conducted a telephone conference on 5 August 2015 and issued directions for the filing and service of any further witness statements and/or submissions for a hearing before me on 3 September 2015. At the hearing, Ms Connor represented herself and Mr J Warren of Counsel sought, and was granted permission, pursuant to s 596 of Act, to represent the respondent. I note that Ms Connor did not oppose Mr Warren’s appearance.

[4] The applicant filed a bundle of material with her application and further information on 1 September 2015 going to the merits of her case, which I will take into account in due course. She also set out her personal and medical circumstances since being dismissed, which she submitted constituted ‘exceptional circumstances’ justifying an extension of time for the filing of her application, being granted. The medical evidence and evidence of her personal circumstances were not disputed by Mr Warren. Rather, he argued that these circumstances (at least from 1 April 2015) did not prevent the applicant from lodging her claim within time. The respondent relied on a number of emails and Facebook posts sent to other staff by the applicant and statements from two other employees:

• Ms Maree Kirk Demetri; and



• Ms Maria Surace.

The witness evidence went primarily to the merits of the application.

Relevant principles

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) of the Act, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, such a finding is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

SUBMISSIONS

Reasons for the delay

[7] In her originating application, the applicant set out the reasons for the delay in filing her unfair dismissal claim as follows:

‘As a result of the hostile work environment in which I was forced to work for this employer over an extended period of time, including enduring many Workplace Health & Safety violations, following my summary dismissal on 2 March 2015 without explanation or prior verbal/written warning, I was admitted to Modbury Hospital on 13 March 2015 suffering symptoms of Post-Traumatic Stress Disorder and placed under supervision. At the same time, my marriage broke down irretrievably and I could not return home.

I was subsequently diagnosed with “Schizo-Affective Disorder”, which diagnosis has since been assessed as “permanent” (see Attach #1 – 2nd Centrelink Medical Certificate dated 1 June 2015 submitted herewith). A copy of the previous (first) Centrelink Medical Certificate issued covering the period since diagnosis to 1 June 2015 can be obtained from Centrelink; I do not possess a copy of this particular document.

As a result of said diagnosis, I was transferred to Woodleigh House, the psychiatric unit of Modbury Hospital, and held there for a period of approximately 3 to 4 weeks. I was also prescribed several anti-psychotic medications.

Following discharge from Woodleigh House, I was then immediately transferred to Highgate Park Respite Care at Fullarton, where I stayed for another period of approximately 2 to 3 weeks.

Upon discharge from Highgate Park, I was then transferred to Catherine House, a homeless shelter for women in [redacted] Adelaide. I believe I was also at Catherine House for approximately 2 to 3 weeks.

As I cannot recall exact dates of admission and discharge, all of the above facts and circumstances can be evidenced if necessary by contacting all of the abovenamed organisations for corroboration.

During my time at Highgate Park and Catherine House, I was encouraged to “be proactive” in seeking share accommodation on my own behalf, as supported accommodation at both establishments was limited and could only be provided on a temporary basis. I then spent considerable time both on Gumtree.com.au and Flatmates.com.au searching for rooms to rent.

I was eventually successful in securing share accommodation at a private residence in Modbury North where I moved in on 2 May 2015. At the time of initial inspection, I was verbally assured by the landlady that the arrangement was to be “long term”. However, after only 3 weeks of moving into her house, the landlady approached me one evening and announced that “she was sorry but this was not going to work out and she wanted me to leave”. Apparently, “having a stranger in her home made her uncomfortable”, something she had not realised when placing her advertisement on Flatmates.com.au.

Therefore, I immediately had to spend the next few days urgently seeking alternative share accommodation, which I was eventually successful in doing, and moved into my new address at North Brighton SA 5048 on 30 May 2015.

Due to the above circumstances and the complexity of my case, it has taken me until now to locate and prepare all my evidentiary documentation in order to complete my application.’

[8] In oral submissions, the applicant said she did not understand that her application could be lodged with the Commission by phone. She believed that all of the relevant documentation had to be provided and this material took a long time to analyse, collate and copy.

[9] In a further document amending her Form F2 application, the applicant explained that:

‘For instance, Attach #4 - Daily Log, an attachment comprising 55 pages, could not be scanned into PDF format directly from the original ruled pad due to technical difficulties experienced with some pages scanning upside down.  Success was only eventually achieved by scanning each page individually into PNG format (which was a 2-step procedure in itself), separately inserting 55 PNG pictures into a blank Word document and then saving that document in PDF format - this process alone took several hours.

What took the most time, however, was composing my answers to questions 1.4, 2.1, 3.1, and in particular 3.2, of the Form F2 Application, which by their very nature, had to be comprehensive.  My suffering schizo-affective disorder made this process very difficult, because it necessitated my "reliving the experience", which caused extreme anxiety and stress, as well as many sleepless nights.  Understandably, I could not recall all events at once; this took an inordinate amount of time, as I went through the gradual process of "recalling and releasing" with each point raised and then committing these individual events to writing.  As a result, it took several days to finalise each point.

I did not complete the Form F2 Application until 6 July 2015, the date of lodgment, which was the date that I was finally satisfied I had outlined my case in a careful, comprehensive and cohesive manner, detailing events to the best of my recollection, ability and belief, in order that it would meet the requirements of the Fair Work Commission.’

For the respondent

[10] Mr Warren submitted that although the applicant believed that she had been unfairly dismissed from the day of her dismissal (2 March 2015), there were no ‘exceptional circumstances’ beyond the period of her hospitalisation (1 April 2015) to justify an extension of time being granted by the Commission. This was not a case of an applicant’s ignorance or mistake as to the 21 day time limit, as the applicant accessed the Commission’s website prior to being hospitalised. Mr Warren noted that from 1 April 2015, the applicant had access to a mobile phone, a computer and had capacity to go where and when she pleased. There was simply no medical evidence that disclosed that the applicant was unable to effectively complete and file her application. Mr Warren suggested that the applicant simply did not have any regard to the limitation date and assumed she would be granted an extension of time automatically. Moreover, the detailed documentation she attached to her application was not so fundamental to the application that she had to collect and collate the numerous documents.

[11] As to the other matters under s 394(3) of the Act, Mr Warren said that the applicant was aware of her dismissal immediately when it took effect. The applicant took no action to dispute her dismissal, other than eventually submitting the application.

[12] Mr Warren submitted the respondent would be prejudiced by the significant time which has passed since the applicant’s dismissal. He added that the applicant had admitted to distributing the disrespectful emails to other staff and laughing in Mr Kirk’s face at the dismissal meeting. While she strongly disputed the performance issues raised by Mr Kirk, the merits of the applicant’s case appeared to be weak. Fairness between other persons was not relevant in this case.

CONSIDERATION

[13] The Commission is prepared to accept that the twenty day period of the applicant’s hospitalisation between 13 March – 1 April 2015, does amount to a reasonable explanation for her not being able to lodge her unfair dismissal application and would constitute ‘exceptional circumstances’. However, there are two other distinct periods, which on the applicant’s own evidence, cannot sustain a finding that ‘exceptional circumstances’ existed, such as to explain the entire delay of 105 days. These were, firstly, the period immediately prior to her admission to Maybury Hospital (11 days) and, secondly, the period after 1 April until the actual lodgement date of 6 July 2015 (97 days).

[14] The applicant provided a medical certificate from Dr Zlatan Zulfic of Modbury Hospital, which discloses that she has ‘unfit for work/study from 13 March 2015 to 13 June 2015’ and that she cannot undertake ‘their usual work or study’. Her symptoms were said to be ‘poor concentration, disorganised thought, mood instability.’ Notwithstanding this three month period, for the reasons which I will shortly explain, I am not satisfied that the applicant’s condition prevented her from undertaking usual or normal day to day activities, which I consider to be very different from undertaking ‘usual work or study activities’.

The first period of inactivity

[15] In the applicant’s oral evidence, she admitted to the following propositions:

(a) At the time of her dismissal (2 March 2015), she believed her dismissal was unfair (PN100) and she was aware that she had a right to make an unfair dismissal application (PN103).

(b) Before she was admitted to hospital on 13 March 2015, she used her husband’s computer to access the Fair Work Commission website (PN106-107).

(c) When accessing the website she read the information and knew that there was a 21 day time limit for ‘making an unfair dismissal application’ (PN111).

(d) She was aware of the form which needed to be completed for the purposes of making an application (PN114).

(e) She was aware the Form could be obtained online and submitted online (PN118).

[16] Given the above admissions, which I acknowledge were candidly and honestly made, I find it difficult to accept that the applicant simply viewed the granting of an extension of time as relatively routine. She was actively seeking to dispute her dismissal and believed it was unfair from the moment she was dismissed. Indeed, her acknowledged behaviour in the meeting with Mr Kirk, demonstrates that she strongly resisted Mr Kirk’s questioning of her performance to the point of ridiculing him. It seems incomprehensible to me that someone with such a strong opinion of the unfairness of their dismissal, who was actively accessing information about their unfair dismissal rights and knew there was a 21 day time limit for filing an unfair dismissal application, would choose to simply ignore the time limit and hope for the best.

[17] Even so, I do not accept the applicant’s argument that it took a long time to analyse, collate and copy all of the relevant documentation. None of what she subsequently filed seems to have been particularly complex or difficult to obtain or copy. Moreover, it would have been very simple to have phoned the Commission to make an application, or at least inquire as to what was required for the application to be accepted. It was completely unnecessary to attach every piece of information or document the applicant believed was important to her case. A short inquiry, or indeed, a proper reading of the application itself, would make clear such detailed documentation was not required at this point in the process. It is only the application itself which is critical to triggering the Commission’s jurisdiction.

[18] I find there was no explanation, let alone a reasonable one, as to why the applicant did not file her application within the first period of 11 days after her dismissal.

The second period of inactivity

[19] The applicant was hospitalised in the Modbury Hospital from 13 March 2015 to 1 April 2015. She was diagnosed as suffering a schizoaffective disorder – a condition she had suffered from over a number of years and for which she had been hospitalised on earlier occasions. The applicant could not recall if she had a telephone in her Modbury hospital room, but she did have her mobile phone with her and she was able to have friends and relations visit her. She had no access to a computer.

[20] After being discharged from Modbury Hospital on 1 April 2015, the applicant went to a crisis respite centre, Highgate Park, until 9 April 2015. During this time, she had access to a phone, her own mobile phone and could come and go as she pleased. She was also visited by her ex-husband. During this time, she also used her phone and a computer to arrange alternative accommodation. She subsequently moved to a homeless shelter, Catherine House, where she had her own room. She kept her mobile phone and had access to a computer in a building adjacent to where she was staying. She remained there until 2 May 2015 and could also come and go as she pleased. During this period, she looked for alternative accommodation through a website - She went to the city, attended a medical appointment and occasionally went shopping.

[21] She found private accommodation in Modbury North, after communicating with and meeting the owner. She remained there until 30 May 2015. During this time, the applicant completed a rent assistance application for Centrelink and sent it by express post after going to the Post Office to send it.

[22] As there were some ‘issues’ at the Modbury North accommodation, the applicant began using a new computer she purchased to find alternative accommodation. By searching online, she found accommodation at North Brighton. She met with the owner, arranged a removalist and moved into shared accommodation on 30 May 2015. She has remained there to the present day. Throughout this time, she had access to her own computer and to the Fair Work Commission’s website. The applicant said she took from 30 May to 6 July to prepare and lodge her unfair dismissal application, while knowing that the 21 day statutory time period had expired.

[23] It must firstly be said that, on any view, the delay in this case is substantial. In my opinion, there was nothing arising from the respite care or the homeless accommodation that would have prevented the applicant from lodging her application between 1 April and 6 July 2015. While I sympathise and accept that the applicant’s life had been severely dislocated, with a loss of job, the breakdown of her marriage, her attempts to recover from her psychological condition and her attempts to find alternative accommodation, it is clear that the applicant had ample opportunity, and the means to lodge her claim, when she already knew that the time limit had long since expired.

[24] While I can understand the applicant’s focus was on recovering her health, the applicant was otherwise engaged in normal day to day activities during this period. This is evidenced by her:

• being able to leave the respite facility at any time;



• being able to go shopping, or into the City for medical appointments;



• applying for rent assistance to Centrelink on two occasions (May and July 2015);



• applying for accommodation through online sites;



• meeting with accommodation providers; and



• arranging for a removalist.

[25] At all relevant times, the applicant had access to a computer and even purchased a new computer in May 2015. She had a personal mobile phone throughout this entire period. Having taken all these matters into account, I am unable to accept that they constitute a reasonable explanation for her failure to lodge her application over a lengthy period from 1 April 2015 to 6 July 2015.

When the applicant first became aware of her dismissal (s 394(3)(b))

[26] There is no doubt the applicant was first made aware of her dismissal on 2 March 2015 and that she considered her dismissal was unfair. This factor weighs against an extension of time being granted.

Any action taken by the applicant to dispute her dismissal (s 394(3)(c))

[27] The applicant took no practical steps to dispute her dismissal until lodging her unfair dismissal application 126 days later. She accessed the Commission’s website prior to 13 March 2015, but inexplicably did nothing further to dispute her dismissal until 6 July 2015. Given the applicant’s strong views as to the unfairness of her dismissal and her allegation of Mr Kirk’s lack of management and communication skills, it is very curious as to why she did not take any action to dispute her dismissal soon after 2 March 2015, or even soon after her hospitalisation. This factor weighs against an extension of time being granted.

Prejudice to the employer (s 394(3)(d))

[28] Save for the usual prejudice to the employer of defending an unfair dismissal, such as costs and time, Mr Warren did not rate this factor very highly as one weighing against the grant of an extension of time. However, it seems to me that the prejudice to an employer is exponentially related to the length of time since an employee’s dismissal. In this case, the length of the delay is significant. However, I will treat it as a neutral factor in this case.

Merits of the applicant’s claim (s 394(3)(e))

[29] As mentioned earlier, much of the material filed by the applicant and the witness statements of Ms Kirk Demetri and Ms Suraci dealt with the merits of the applicant’s claim and her rejection of the reasons for her dismissal.

[30] In oral evidence, the applicant agreed that towards the end of her employment, she would, from time to time, send emails to other staff having a joke at Mr Kirk’s expense. She had not sent them to Mr Kirk, because she believed he might not see the funny side of the emails; some of the emails were critical of Mr Kirk’s giving of instructions, his relaying of information and his grammar. Some of them were even mocking or critical of his appearance. The applicant conceded that the emails were also sent to another law firm in the same building. She acknowledged that it was inappropriate to make fun of her employer and it was disrespectful towards him.

[31] The applicant agreed that she had attended a meeting with Mr Kirk on 30 January 2015, but she could not recall if he had raised concerns about her performance and productivity. In any event, she disagreed that there were any issues of this kind, as she had worked very hard at her job. She did recall a meeting on 2 March 2015, at which Mr Kirk had raised issues with her performance and productivity. However, she disagreed with him. She conceded that she had laughed in Mr Kirk’s face and was rude to him. She accepted that she had been disrespectful to her employer.

[32] Ms Maree Kirk Demetri recalled the applicant sending her emails in late 2014 or early 2015 of a derogatory nature about Mr Kirk. After the meeting between the applicant and Mr Kirk in January 2015, the applicant told Ms Kirk Demetri that she was ‘very irate’ about it. She asked for Ms Kirk Demetri’s mobile number and later that evening called her to make further derogatory comments about Mr Kirk.

[33] In cross examination, Ms Kirk Demetri denied that that work environment was very stressful or that she would have frequent arguments with Mr Kirk involving yelling and slamming of doors. She agreed she would sometimes say, ‘I’m over it’. As Mr Kirk was her brother, they would sometimes have words between each other.

[34] Ms Maria Surace attended both meetings involving the applicant and Mr Kirk, at which he expressed his concerns with the applicant’s work and productivity. In the second meeting (2 March 2015), the applicant was rude and disrespectful towards Mr Kirk. She laughed in his face or replied in a sarcastic and mocking manner, sometimes speaking over him. Ms Surace said she was shocked by the applicant’s behaviour. Mr Kirk then dismissed her instantly and asked her to leave the office.

[35] In cross examination, Ms Surace said that occasionally it was difficult to understand Mr Kirk on the dictaphone. She agreed she would swear to herself in frustration if she could not hear Mr Kirk’s dictation. Sometimes it would relate to the quality of the tape. Ms Surace denied that Mr Kirk would interrupt the staff when they were speaking.

[36] In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.’

[37] On one view, the applicant’s disrespect for Mr Kirk and her behaviour during the disciplinary meeting would be sufficient to satisfy the requirements of the Small Business Fair Dismissal Code and justify Mr Kirk’s dismissal of the applicant. Whether her alleged poor performance, which she strenuously disputes, or her disrespectful conduct justified summary dismissal, without notice, is problematic. However, without fully testing the merits of the applicant’s claim, I am satisfied on a prima facie basis, that the applicant’s case is not without some merit. This factor weighs in favour of an extension of time being granted.

Fairness between the applicant and other persons in a similar position (s 394(3)(f))

[38] This is a neutral factor in this case.

[39] For all the aforementioned reasons and having balanced all of the criteria in s 394(3) of the Act, I find that there are no ‘exceptional circumstances’ which would warrant the exercise of the Commission’s discretion to extend the time for filing this unfair dismissal application. It follows that the application must be dismissed and I so order.

[40] Orders to this effect will accompany the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person

Mr J Warren of Counsel for the respondent

Hearing details:

2015:

Adelaide

3 September.

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