Margaret (Maggie) Keene v Coolum Coaches Pty Ltd

[2023] FWC 676

[2023] FWC 676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Margaret (Maggie) Keene
v

Coolum Coaches Pty Ltd

(U2023/209)

DEPUTY PRESIDENT LAKE BRISBANE, 27 MARCH 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

1. Mrs Margaret Keene (the Applicant) lodged 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) in relation to the termination of her employment with Coolum Coaches Pty Ltd (the Respondent).

1. The Applicant’s employment with the Respondent ended on 31 December 2022. The Applicant had given notice of her resignation on 25 November 2022 and the Respondent had accepted the resignation on 13 December 2022. The Applicant stated on her Form F2 that her last day working for the Respondent was 16 December 2022.

1. The Applicant lodged her application on 8 January 2023. The application was lodged 23 days outside the statutory time limit prescribed by s.394(2) of the Act taking to account the alleged dismissal is taken from when the Applicant resigned because of the employer’s conduct.[1]

1. The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension before a hearing was held before me on 17 March 2023.

1. Although there have been contentions raised regarding whether the Applicant resigned or was dismissed, I will need to determine whether the Application should be granted an extension of time before other jurisdictional objections are determined. The Full Bench of the Commission states in Herc v Hays Specialist Recruitment (Australia) Pty Ltd:[2]

“[17] While it may be necessary to assume that an applicant is an employee for the purposes of determining whether an application for an unfair dismissal remedy is made outside the required time, and if necessary, whether a further period should be granted for the application to be made, such assumptions cannot be made with respect to other jurisdictional objections. 

Where time is extended or an application is made within time, and an objection as to whether the applicant is an employee is raised, that objection must be dealt with before consideration can be given to other objections such as whether the person was dismissed, high income threshold or genuine redundancy.

We observe, without deciding, that there may be single cases where objections on the grounds of no dismissal, high income threshold, minimum employment period or genuine redundancy are made, and it is convenient to decide one of these issues without deciding the others.  However, it is not a proper approach to deal with any of these objections before finding that an application is made within the required period or granting a further period and then determining whether an applicant is an employee and if necessary, the identity of the employer.”

Should a further period be granted?

1. Section 394(3) 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:

“(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 like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[3]  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),[4] 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.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s unfair dismissal application to proceed, it is necessary to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances”, taking into account each of the matters in s.394(3) of the Act.

Consideration

Reason for the delay (s.394(3)(a))

1. 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]

1. It is 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]

1. The Applicant stated the main reason she was unable to lodge the application in time was that she was working at her new job on North Stradbroke Island during the 21-day period with limited to no reception and she did not have access to Wi-Fi. The Applicant stated in her oral evidence that she was doing 12 hour shifts on the island and did not have access to a computer to lodge her evidence.

1. I am not satisfied that the explanation provided by the Applicant sufficient reason to meet the high threshold of establishing an exceptional circumstance. The Applicant appeared to have sufficient internet coverage during the same period when she was corresponding with the Respondent’s representatives on 27 December 2022 indicating that she would lodge a claim for unfair dismissal. In the Respondent’s submissions, they state that the Applicant responded to their emails, meaning that she had sufficient internet connection to lodge the Application.

1. Ms Keene files in her own submissions an email that she sent on 27 December 2022 to the Respondent’s representative indicating that she would lodge a claim for unfair dismissal. The Applicant would have had sufficient internet coverage to lodge on time. Furthermore, in her oral evidence she stated that she would return to the mainland to the Sunshine Coast after her shifts from Stradbroke Island and where she would have had time to lodge her unfair dismissal application.

1. The Applicant has not established a sufficient reason for delay. This consideration weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant provided that her reason for delay was that there was confusion from the Respondent as to her actual termination date. The Applicant submitted a text message on 1 December stating that the Respondent had accepted her resignation letter and her final working day was 31 December 2022. The Applicant sent her resignation on 25 November 2022 which would be her date of dismissal if accepting her argument that she was forced to resign by the conduct of her employer. This would make her application 23 days out of time.

1. In the alternative, if it is accepted that the Applicant misunderstood her alleged dismissal date because of possible discussions of revoking her resignation per an email dated on 1 December 2022 at 7:20pm, she would still be out of time by 2 days. In the Applicant’s email response to the Respondent on 27 December 2022, she states that she was wrongfully terminated during her notice period, and that her services were not required after 16 December 2022 which would be her date of dismissal.

1. In the Applicant’s letter to the Respondent on 22 January 2023, the Applicant states she had left her keys on 17 December 2022, and stated ‘Again I remind you that under Fair Work legislation, employers are required to pay employees their final payment within 7 days of the employment ending. That date was 23 December 2022’ indicating that the Applicant was aware of dismissal on 16 December 2022.This is the latest date I accept as when the Applicant could be first aware of her dismissal considering the events that occurred after the initial text message regarding resignation.

1. This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant has taken steps to dispute the dismissal with the Respondent stating that she would contact the Fair Work Ombudsman on 27 December 2022 and Queensland Police. However, the dispute appears to be surrounding unpaid renumeration rather than her dismissal.  This factor is a neutral consideration.

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

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[9] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[10] 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.”

1. Without a hearing on the merits, 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.394(3)(f))

1. 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]  

1. In Truong v Elwar & Sons [2012] FWA 9709 at [14], Deputy President Sams makes the observation that not every dismissed employee would have immediate access to computer facilities as a situation which is ‘out of the ordinary, unusual, special or uncommon’.

1. In Edmondson v A Whistle & Co Pty Ltd T/A Electrodry [2021] FWC 6313 at [9], the Applicant submitted that he was unable to lodge his application in time because he did not have the adequate internet or telephone devices. Deputy President Gostencnik did not accept the argument on the basis that the Applicant was able to begin preparing his application during the timeframe to make an unfair dismissal application. In the Applicant’s own evidence, she states in an email dated 27 December 2022 at 11:14pm to the Respondent, ‘I have been wrongfully terminated during my notice period to which I will lodge a claim with Fair Work for unfair dismissal for’ in which she was aware and eligible to lodge the claim in time.

1. This consideration weighs against an extension of time.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. 

1. I order that the application be dismissed. 

DEPUTY PRESIDENT

[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C) [30].

[2] Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234 at 17 (Catanzariti VP, Asbury DP, Lake DP).

[3] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[4] [2019] FWC 25.

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

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

[7] [2018] FWCFB 901 [39].

[8] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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

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