Maree Fay Harwood v Southern Youth and Family Services Limited

[2023] FWC 867

[2023] FWC 867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Maree Fay Harwood
v

Southern Youth And Family Services Limited

(C2022/5221)

COMMISSIONER SCHNEIDER PERTH, 12 APRIL 2023

Application to deal with contraventions involving dismissal

1. Ms Maree Fay Harwood (the Applicant) has made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dismissal dispute.

1. The dispute arises out of the Applicant’s allegations that she was dismissed from her employment with South Youth and Family Services Limited (the Respondent) in contravention of Part 3-1 of the Act.

1. The information provided in the application, and in the employer response form lodged by the Respondent, indicates that the application may have been made out of time.

1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time and, if it was, whether there are exceptional circumstances giving rise to an extension of time.

Relevant law

1. Section 366(1) of the Act provides that such an application must be made:

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

(b)   within such further period as the Commission allows.

1. As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

1. Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]

1. Exceptional circumstances may 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 can be considered exceptional.[5]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]

1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]

1. This decision contemplates the relevant considerations in section 366(2) of the Act in the context of the current application.

Submissions – Evidence – Criteria

1. The dismissal took effect on 30 June 2022.

1. The final day of the 21-day period was therefore 21 July 2022 and ended at midnight on that day. The application was made on 22 July 2022.

1. The application was made 1 day late.

1. The parties do not dispute that the application was lodged out of the 21-day time period.

1. It is therefore necessary for the Commission, prior to dealing with the dispute further, to determine if there are exceptional circumstances giving rise to an extension of time.

1. Accordingly, the Commission must consider whether exceptional circumstances exist and, if there are exceptional circumstances, if discretion should be exercised to allow an extension of the 21-day period.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 July 2022.

1. The delay is the period commencing immediately after that time until 22 July 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]

Submissions and evidence

1. The Applicant submits that she initially filed a Form F9 for an Unlawful Termination application with the Commission on 21 July 2022.

1. The Applicant made submissions that the information provided on the Commission’s website did not provide adequate context for understanding the nature of the application selected.

1. The following day, 22 July 2022, the Applicant was called by the Commission’s registry and informed of the issues with the application form she had selected.

1. Subsequently, the Applicant filed this application later that same day.

1. The Applicant made submissions regarding her health issues around the time of lodgment. The Applicant provided a letter from one of her treating medical practitioners in support of these submissions.

1. During the hearing, and under oath, the Applicant confirmed the below:

·   That she was aware of the 21-day time limit for filing her application with the Commission.

·   The Applicant had discussions with her paid agent over her application. However, the Applicant did not receive advice as to which form to use to file her application and did not instruct her agent to file on her behalf.

1. The Applicant largely focused on the merits of the claim as grounds for exceptional circumstances. Accordingly, the Applicant did not make lengthy submissions regarding the other criteria nor the circumstances surrounding the delay.

1. In relation to the reason for the delay, the Respondent submits that the Applicant filing the incorrect form was not an exceptional circumstance which warrants the granting of an extension of time.

1. The Respondent submitted that a previous decision of the Commission supported this position.[10]

1. The Respondent asserts that, although conceding the Applicant gave evidence that she knew about the timeframe for lodgement at the Hearing, ignorance of the timeframe for lodgement is not grounds for exceptional circumstances.

1. The Respondent submitted that the Applicant has provided no evidence or explanation as to why her initial application was filed on the last possible date and there has been no exceptional circumstances provided by the Applicant as to why her application was filed when it was.

1. The Respondent submits that the Applicant’s paid agent was aware of her difficulties and did not appropriately assist in the correct and timely lodgement of her application.

Findings

1. Having regard to the above, I find that the reasons for the delay are reasonable and explainable.

1. For reasons of privacy and relevance I do not believe it is appropriate to divulge the details of the Applicant’s health issues at length in this decision.

1. The letter from the medical practitioner makes clear that the Applicant has suffered a not-insignificant impact on her daily function and overall ability to partake in life’s usual activities.

1. On assessment of the evidence provided, I am satisfied the Applicant’s conditions do not render her completely detached from, or unable to partake in, proceedings such as this. However, it is clear that her conditions would have significantly contributed to issues in lodgment.

1. Regardless, even if the Applicant had not provided such letter or submissions, the circumstance of the lodgment is consistent with other matters before the Commission that are routinely afforded extensions.[11]

1. In circumstances where an applicant mistakenly lodges an inappropriate application type and is later informed of their error, the Commission has found it is incumbent on that person to promptly remedy this and lodge the correct application type.[12]

1. The Applicant lodged the incorrect application type within the 21-day period. Upon being notified of this error, she remedied her mistake very quickly.

1. I do not accept the Respondent’s submissions regarding ignorance of the timeframe. It is clear on the evidence provided that ignorance of the timeframe is not the reason for late lodgment and rather that the Applicant was aware of the timeframe and attempted to comply with it.

1. I also note the reference to a previous decision of the Commission, which the Respondent asserts supports its position that incorrect lodgment does not give rise to exceptional circumstances.

1. The decision referenced by the Respondent in that regard concerns a matter in which an applicant lodged in the Western Australian Industrial Relations Commission before lodging in the Fair Work Commission. Additionally, the applicant in that matter had already lodged her initial application considerably late.

1. The issue of lodgment in an entirely different Tribunal is notably different to lodgment of an incorrect application type in the Commission.

1. I am not satisfied the decision referenced is of any significant relevance to the matter at hand.

1. The discussion pertaining to the Applicant’s paid agent is not entirely relevant. I am satisfied that there has been no representative error, as it is clear the Applicant was not told how to lodge or what to lodge by her agent in any specific detail.

1. I note the Applicant’s comments regarding information available on the Commission’s website. I do not accept these submissions and note that the Commission offers a wealth of resources to members of the public to explain lodgment in clear and plain English. Further, many self-represented applicants correctly navigate the forms and lodge applications.

What action was taken by the Applicant to dispute the dismissal?

1. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal other than the previous incorrect lodgement of the Form F9.

1. There were no submissions or evidence presented which suggest that the Applicant was involved in an internal review process disputing her dismissal which may have delayed her filing this application.

1. Therefore, I find that the Applicant did not take any action to dispute her dismissal until the filing of the applications.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. The Respondent submits that it would suffer prejudice if an extension of time were granted.

Submissions and evidence

1. Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the incurring additional legal expenses to defend the allegations put forward by the Applicant if the matter was to proceed further.

1. The Respondent did not provide any detailed reasoning or evidence in support of this position, however, it is reasonable that if the application is to continue there will be a cost incurred by the Respondent in relation to defending the application.

Findings

1. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

1. The financial costs of defending such an application are part of the normal course of things and do not, in the circumstances of this matter, give rise to prejudice.

What are the merits of the application?

1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in section 366(2)(d)”.[13]

1. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

1. Neither party brought to my attention any particularly relevant matter concerning this consideration.

1. I note there are several previous decisions of the Commission in which mistaken lodgment and prompt remedying of the error have resulted in an extension being granted.[14]

1. In relation to this factor and upon consideration of established precedent, I find that it would appear unfair, in the absence of any negating factors, for the Applicant to be denied an extension.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[15]

1. Exceptional circumstances may 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 can be considered exceptional.[16]

1. I am satisfied that the Applicant, upon being notified of the errors in her initial application, was extremely haste in remedying this and lodging the current application.

1. Had the applicant lodged the correct form in place of the Form F9, this application would have been lodged within the relevant time period. This alone has shown to be grounds for exceptional circumstances before the Commission in previous decisions.[17]

1. Had the Applicant waited several days after being informed of her error to lodge this application, my conclusion would likely be different.[18]

1. I note the Respondent’s contentions regarding the above giving rise to exceptional circumstances. In response, I highlight the evidence advanced by the Applicant regarding her health concerns. Further, it is not an issue if an application is lodged on the final day of timeframe. It is understandable that one would opt to take ample time to prepare their application and such an act should not be questioned. Additionally, consistent with previous decisions of the Commission, it is not an issue if an applicant mistakenly lodges the wrong application type given this is promptly remedied.

1. Nevertheless, if I have erred in any of those assertions, I am satisfied that these actions by the Applicant can be reasonably attributed to the medical conditions she was afflicted with at that time.

1. Having regard to all of the matters listed at section 366(2) of the Act, I am satisfied that there are exceptional circumstances.

1. Being satisfied that there are exceptional circumstances, I must now determine whether to exercise discretion to allow an extension of time.

1. Consistent with previous decisions of the Commission,[19] and in light of no significant factors weighing against the Applicant, I am satisfied that an extension should be provided, to cover the period of delay, and the application shall proceed.

Conclusion

1. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[20]

COMMISSIONER

[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.

[3] [2018] FWCFB 901, [39].

[4] [2011] FWAFB 975, at [13].

[5] [2011] FWAFB 975, at [13].

[6] [2018] FWCFB 901, [39].

[7] [2018] FWCFB 901, [40].

[8] [2018] FWCFB 901, [17].

[9] [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[10] [2010] FWA 4525.

[11] As a starting point, see: [2017] FWC 3090, at [15]; [2010] FWA 3939; [2017] FWC 508; [2016] FWC 1186.

[12] [2017] FWC 3090, at [15].

[13] [2011] FWAFB 975, [36].

[14] [2017] FWC 3090, at [15]; [2010] FWA 3939; [2017] FWC 508; [2016] FWC 1186.

[15] [2011] FWAFB 975, [13].

[16] [2011] FWAFB 975, [13].

[17] [2017] FWC 3090, at [15]; [2010] FWA 3939; [2017] FWC 508; [2016] FWC 1186.

[18] For example, see: [2017] FWC 5922.

[19] [2017] FWC 3090, at [15]; [2010] FWA 3939; [2017] FWC 508; [2016] FWC 1186.

[20] [PR761022].

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