Malgorzata Beliniak v Bedingfeld Park Inc

[2016] FWC 3843

[2016] FWC 3843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malgorzata Beliniak
v
Bedingfeld Park Inc
(U2016/6987)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Malgorzata Beliniak alleged that the termination of her employment by Bedingfeld Park Inc was unfair. Bedingfeld denies the allegation.

[2] Given her dismissal took effect on 24 March 2016 her unfair dismissal application lodged on 17 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“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.”
[Endnotes not reproduced]

The reason for the delay

[5] Ms Beliniak submitted that her dismissal caused her to become ill. While she had a pre-exisiting condition it was exacerbated by the dismissal. She was therefore not able to function properly during this period. Ms Beliniak provided a medical certificate which advised that she was unfit until 15 April 2016. Ms Beliniak met with a lawyer on 15 April 2016 and was advised to proceed with an unfair dismissal application. Ms Bloomfield, who was Ms Beliniak’s case manager and representative, said that the delay after that date was due to Ms Beliniak’s illness and the need to complete the application. Ms Bloomfield said that Ms Beliniak required her assistance but there were times when Ms Beliniak attended her office but had to go home because she was unable to cope. Further, Ms Beliniak said she sought information from her employer namely copies of her contract, certain policies as well as a statement of reasons for her dismissal. Despite sending two emails this information was not provided. It was clear from those emails that Ms Beliniak was aware that she could take this matter to the Fair Work Commission.

[6] I am satisfied that Ms Beliniak had a reasonable explanation for some of the delay. It was not challenged that she was medically unfit until 15 April 2016. It is clear from Ms Bloomfield that after that date Ms Beliniak’s illness at times prevented her from attending to this matter.

[7] Once she obtained legal advice she was required to act promptly and she then took another month to lodge her application. I accept that she required assistance completing the form and I accept that her medical condition made that more difficult. However, I am not satisfied that Ms Beliniak had a reasonable explanation for the whole of the delay. She was aware of the Commission from the date she was dismissed. While her medical condition impacted on her capacity to deal with this matter her application form was signed on 6 May 2016, but it was not posted until 13 May 2016 and it was not received until 17 May 2016. There was no explanation as to why it took seven days to post the application.

[8] This weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[9] Ms Beliniak was aware of the dismissal when it took effect. This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[10] Ms Beliniak immediately sought information from Bedingfeld about the reasons for her dismissal. Ms Beliniak made it clear to Bedingfeld that her dismissal was unfair. When she received no response to this email Ms Beliniak sought a further response in early April, Bedingfeld was on notice that Ms Beliniak was intending to take her dismissal to the Commission. This weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[11] Ms McLeod gave evidence that if the matter were to proceed both her and her facility manager would need to spend time away from their normal duties, which would be detrimental to the residents. Further her facility manager is taking annual leave and will be out of the country.

[12] While I accept that there may be some prejudice to the employer, that prejudice is not sufficient to weigh against a finding that there are exceptional circumstances.

The merits of the application

[13] In the matter of Kornicki v Telstra-Network Technology Group 2the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the 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 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.” 3

[14] For the purpose of determining whether to grant an extension of time to the applicant to file her application, the Commission “should not embark on a detailed consideration of the substantive case.” 4

[15] Ms Beliniak gave evidence that she was a committed member of staff and that she had been the victim of bullying. She said she had not been provided with any warnings about her performance or conduct. Bedingfeld gave evidence that there had been complaints about Ms Beliniak’s performance and conduct and that some of the issues had been raised with Ms Beliniak.

[16] I am not able to make a final determination of the merits of this matter as there are factual disputes between the parties. I consider that this is a neutral consideration.

Fairness as between the person and other persons in a similar position

[17] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said:

“[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.” 6

[18] There were no submissions that there were any persons in a similar position.

Conclusion

[19] I am not satisfied that there are exceptional circumstances. Ms Beliniak has not provided a reasonable explanation for the whole the delay in lodging her application. I accept that Bedingfeld was on notice that she disputed the dismissal but this is not sufficient to outweigh her lack of a reasonable explanation for the whole of the delay. None of the other criteria support a finding that there are exceptional circumstances.

DEPUTY PRESIDENT

Appearances:

M. Beliniak and R. Bloomfield for the Applicant.

S. Wilkinson and D. McLeod for the Respondent.

Hearing details:

2016.

Melbourne and Perth (by telephone):

June 10.

 1   [2011] FWAFB 975 at [13].

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   [2015] FWC 8885.

 6   Ibid at [29]

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