Marley Rodgers v Furkids Funhouse
[2022] FWC 2151
•12 AUGUST 2022
| [2022] FWC 2151 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marley Rodgers
v
Furkids Funhouse
(U2022/7875)
| COMMISSIONER PLATT | ADELAIDE, 12 AUGUST 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application refused.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Ms Marley Rodgers a further period for her unfair dismissal application (Application) to be made against Furkids Funhouse.
Background
On 28 July 2022, Ms Rodgers lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Furkids Funhouse, which her form F2 Unfair Dismissal Application advised took effect on 28 June 2022.
On 2 August 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 12 August 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter was provided to the parties. Ms Rodgers was invited to provide any further material in respect of the extension of time issue by no later than 9 August 2022. The Applicant filed a witness statement outlining reasons why her application was lodged out of time.
On 5 August 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 28 June 2022 and pressed the jurisdictional objection that the application was lodged out of time, as well as objecting to the application on the basis that the Respondent is a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals only with the extension of time issue.
There was no dispute that the application was lodged nine days out of time and as such would require an extension of time to be granted for the application to proceed.
Hearing
A Hearing was conducted by way of telephone conference on 12 August 2022. A sound file record of the telephone conference was kept. Ms Rodgers represented herself at the Hearing, whilst Furkids Funhouse was represented by Ms Joanna Grant.
Ms Rodgers gave evidence at the Hearing and confirmed the material that she had previously provided. Her position is summarised as follows:
· Ms Rodgers was dismissed on 28 June 2022. At the time, she was not aware of the statutory timeframe for lodging an unfair dismissal application.
· Ms Rodgers was experiencing significant stress and anxiety as a result of the cessation of her employment. There was no suggestion that this stress and anxiety was clinical in nature, and no medical certificates or reports were filed as evidence.
· Upon starting a new job on 28 July 2022, Ms Rodgers was provided an induction information package which included a ‘Fair Work Information Sheet’. This prompted Ms Rodgers to research the Fair Work Commission and unfair dismissal, at which point she found out about the 21 day time limit for lodgement.
· Ms Rodgers, realising that she was outside of time statutory timeframe, lodged her application at 11.58am on 28 July 2022.
· Ms Rodgers did not take any action to contest the dismissal other than lodging the Application.
· Ms Rodgers submitted that the Application would not result in any prejudice to the Respondent.
· Ms Rodgers acknowledged that she would have received a Fair Work Information Sheet when she commenced employment with the Respondent in 2021, but contends that she had forgotten that she had received it when she was dismissed. Ms Rodgers disputes any suggestion that she and Ms Grant had a conversation about unfair dismissal and the 21 day time limit at the performance meeting in which she was dismissed.
The Respondent did not file any material but Ms Grant gave evidence at the Hearing.
Ms Grant contended that Ms Rodgers was not only given a Fair Work Information Sheet when she commenced employment in 2021, but also that there was a conversation between Ms Rodgers and Ms Grant at the time of dismissal which included discussion of the Fair Work Commission and the 21 day time limit for unfair dismissal applications.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[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).
…
[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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] There is no dispute that the dismissal took effect on 28 June 2022 and that the Applicant was aware of the dismissal on that date.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[6] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[7] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[8]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
Ms Rodgers has given evidence that the sole reason that her application was late was that she was unaware of the unfair dismissal process, and therefore of the timeframe for lodging unfair dismissal applications, until she received information in a Fair Work Information Sheet on 28 July 2022. There is a dispute between the parties about the content of a discussion between Ms Rodgers and Ms Grant at the time of termination, and whether Ms Rodgers was informed at that time of the 21 day time limit. I make no findings in relation to this contention.
Taking the Applicant’s position at its highest (that is that she was unaware of the time limit at the time of dismissal and was experiencing stress as a result of her dismissal), she has not adequately explained the reason for the delay. It is a well-established principle that ignorance of the lodgement timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.[9] In addition, experiencing feelings of stress and/or anxiety as a result of a dismissal is normal, and the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances.
I find that Ms Rodgers has not provided an acceptable reason for the delay in lodging her unfair dismissal application. This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Ms Rodgers was aware of her dismissal on the date that it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]
Ms Rodgers advised that she had not taken any action to contest the dismissal outside of lodging her unfair dismissal application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
There was no submission from the Respondent that there would be any prejudice to the employer caused by the delay and accordingly prejudice to the employer is a neutral factor in this matter.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have considered the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
Neither party made any submissions in respect of this topic, and I have regarded it as a neutral factor.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The application is dismissed.
COMMISSIONER
Appearances:
M Rodgers, the Applicant.
J Grant for the Respondent.
Hearing details:
2022.
Adelaide (by teleconference)
August 12.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[7] [2016] FWCFB 349
[8] [2018] FWCFB 3288 at [35]-[45]
[9] Rose v BMD Constructions Pty Ltd [2011] FWA 673.
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
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