Lisa Arnold v 2 Shores Pty Ltd
[2023] FWC 274
•31 JANUARY 2023
| [2023] FWC 274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lisa Arnold
v
2 Shores Pty Ltd
(C2022/7684)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 JANUARY 2023 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Ms Lisa Arnold (the Applicant) lodged an application with the Fair Work Commission (the Commission) 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 2 Shores Holidays Village (the Respondent). The Applicant began her employment on 12 August 2022. The Applicant’s position is that she was never dismissed and is still employed. The Respondent’s position is that the Applicant was dismissed on 21 October 2022. The application was lodged with the Commission on 18 November 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that she lodged her application seven days outside the statutory time limit. To be within time, the Applicant should have lodged her application on or before 11 November 2022.
Preliminary matters
Present at the hearing were two people acting as support persons for the parties. For the Applicant was the Applicant’s daughter, Ms Savannah Paine. For the Respondent was Mr John Hindman, father of Mr Matthew Hindman who was representing the Respondent. I allowed both Ms Paine and Mr Hindman to act as McKenzie friends.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged her application on 18 November 2022. She accepts that her application was made some seven days outside of the 21 days required under s.366(1) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim that the Applicant was not dismissed.
The Applicant’s submissions
As the Applicant had not provided submissions prior to the hearing, I accepted the following verbal submissions while she was under affirmation.
The Applicant did not agree with the date of dismissal. She was informed by an industrial relations union that she could not be legally dismissed if she had a medical certificate. As she was diagnosed with adjustment disorder and had a medical certificate on 21 October 2022, she was not dismissed and is still an employee of the Respondent.
On 18 November 2022, the Applicant lodged her application with the Fair Work Commission. Between 11 November 2022 and 18 November 2022, the Applicant received an offer from the Respondent for four weeks of pay. The Applicant alleges this was a bribe not to proceed with a worker’s compensation claim that she ended up filing. She got legal advice which advised the Applicant to launch the current application to recoup her lost monies.
The Applicant submitted that there were exceptional circumstances surrounding the lateness of her application. She was diagnosed with adjustment disorder and suffering from emotional distress. The Applicant claims she was homeless for three and a half weeks as the Respondent owned the property and evicted her. Therefore, lodging her application was not on the radar and further she was seeking medical help.
The Applicant disputes that she was dismissed by the Respondent on 21 October 2022 as she has a medical certificate. The exceptional circumstances she provides are her diagnosis, the emotional distress she was experiencing, and the lack of housing. She asserts that these should be considered exceptional, and an extension should be granted.
The Respondent’s submissions
The Respondent maintains that none of the reasons provided meet the required standard of “exceptional circumstances”. The Respondent asserts they clearly dismissed the Applicant on 21 October 2022.
On 21 October 2022 at 1:51pm, the Applicant phoned Mr Matthew Hindman on 21 October 2022, threatening to resign. At 3:09pm, Mr Hindman informed the Applicant verbally over the phone that he would accept her resignation. The Applicant rescinded her resignation, leading to Mr Hindman terminating her employment. He advised the Applicant that his father, Mr John Hindman was on his way to discuss the termination. The Applicant then left the workplace, telling Mr John Hindman she needed a break as she had not received a break yet. Mr John Hindman advised the Applicant that she could take her break, but she would need to return. The Applicant then got a medical certificate and did not return to the workplace. At 6:22pm, Mr Matthew Hindman sent the Applicant a letter of termination, confirming the Applicant was no longer employed by the Respondent. The Respondent provided the letter of termination in their submissions.
The Respondent contends that the Applicant had two properties. These are the work appointed residence and her previous residence. The Applicant was evicted under the assumption that the Applicant still had her previous residence.
Regarding the alleged bribe, the Respondent asserts that this was a deed of release and settlement that was not executed by the Applicant. Mr Matthew Hindman explained that the offer of four weeks of pay was to resolve the matter and to minimise the effort required with pursuing any action. It was alleged that the Applicant may not have understood the purpose of the deed of release.
Regarding other employees in a like position, the Respondent submitted that there was a previous park manager who was in the role for six weeks. He was not capable of performing the duties of his role. This former employee and the Respondent parted ways amicably.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) 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.”
For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.
Given that both parties were unrepresented at the Hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(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,[5] the Full Bench noted at [39]:
“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.”
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.[6]
Considering the evidence given by the parties and the disagreement on whether a termination occurred, I find the following. The Applicant’s employment ended on 21 October 2022. This was communicated to the Applicant through the text message and termination letter sent by the Respondent on this date. The reasons provided by the Applicant do not amount to exceptional circumstances.
The Applicant argues that she could not have been legally dismissed as she was protected by a medical certificate. I find that this is legally unmeritorious as a dismissal did occur. Furthermore, an argument asserting that there was no dismissal goes against her current application.
Finally, the Applicant gave evidence that she was suffering from adjustment disorder, emotional distress, and was currently homeless. I have sympathy for the Applicant as she was clearly under a lot of pressure. However, on balance and considering the totality of the evidence, I do not view them as exceptional.
Based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant did not dispute her dismissal besides launching the application.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submissions regarding prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
On an initial view of the evidence provided, the merits do not appear to be strong. However, without a proper hearing and assessment of all the evidence in this matter, 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.366(2)(e))
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.[10]
The Respondent drew my attention to a previous employee who was not able to perform his duties. This resulted in the Respondent and the former employee parting ways amicably. I do not believe this to be relevant 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
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] 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.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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