Maryann Head v Bellambi Neighbourhood Centre Inc

[2016] FWC 7113

[2016] FWC 7113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Maryann Head
v
Bellambi Neighbourhood Centre Inc
(U2016/7359)

COMMISSIONER JOHNS SYDNEY, 7 OCTOBER 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

This decision is about whether the Commission should allow Maryann Head (Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 1 June 2016 3, that being 76 or 75 days after her employment with Bellambi Neighbourhood Cenrtre Inc (Respondent) ceased4 on either 16 or 17 March 2016 and, consequently, 55 or 54 days after the 21 day time limit provided for in the FW Act.

Preliminary matter - permission to be represented

[2] The respondent sought permission from the Commission for it to be represented by counsel. It was necessary to determine this preliminary matter at the outset to ensure that the manner in which the jurisdictional hearing was conducted was fair. 5

The Respondent referred the Commission to the decision in O’Grady v RFDSA. 6

The Applicant, representing herself, did not object to the respondent being represented by a lawyer.

Having heard from the parties, the Commission, as presently constituted, was satisfied that, noting the matter involved a jurisdictional objection, permission should be granted to the respondent to be represented by counsel on the basis that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

The jurisdictional objection

[3] On 9 June 2016 the respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than 21 days after the dismissal took effect.
[4] In addition the F2 Application and F3 Employer Response the following documents were filed in relation to the matter:

● Applicant’s Submissions regarding application for late lodgement (Exhibit “A1”);
● Applicant’s Statement in Support (Exhibit “A2”);
● Respondent’s Outline of Submissions (Exhibit “R1”);
● Statement of Anne Burbrook (Exhibit “R2”);
● Applicant’s Response to the Respondent’s Submissions (Exhibit “A3”);
● Applicant’s Response to the Statement of Ms Burbrook (Exhibit “A4”); and
● Further Statement of the applicant (Exhibit “A5”).

[5] The Commission, as presently constituted, has had regard to all of the material which has been filed in coming to this decision.

Legislative scheme

[6] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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 similar position.

[7] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 7 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  8

Facts leading up to and relating to the dismissal

[8] The following matters were either agreed or otherwise not substantially contested:

a) On 22 May 2013 the applicant commenced employment with the respondent.
b) The applicant was employed in an office administration role undertaking bookkeeping duties and building administration.
c) The applicant was employed on a series of notionally fixed term contracts.
d) The last contract was issued on 17 August 2015 with a notional expiry date of 16 February 2016.
e) On or about 16 February 2016 the contract of employment was extended through until 16 March 2016. Although the employment records of the applicant suggest that she was notified of this extension, the applicant denies being notified.
f) At some point prior to 17 March 2016 the Acting Manager of the respondent, Robyn Alderton, invited the applicant to attend the respondent’s premises for a meeting.
g) On 17 March 2016 the applicant met with Ms Alderton. Ms Alderton told her that her contract ceased as from 16 February 2016 but that it had been extended to 16 March 2016. It was explained to the applicant that the Board had decided upon a restructure. Only on this date was the cessation of the applicant’s employment communicated to her.
h) On 18 March 2016 the applicant accessed the website of the Fair Work Commission. She was made aware of the 21 day time limit for the filing of an application for an unfair dismissal remedy. The applicant completed a self-testing tool in which she indicated that she “had a contract for a specified time, task or season - I was dismissed because my contract ended.” Consequently she was informed 9 that “based on the answers you have provided, it appears that you are not eligible for a remedy under the National unfair dismissal laws.”
i) On 7 April 2016 the 21 day time limit for the filing of an application for an unfair dismissal remedy expired.
j) At about this time the applicant spoke with her QBE Case Manager who informed her that it was illegal to terminate an employee on Workers Compensation. The applicant was advised to speak to a workers compensation solicitor.
k) At about this time the applicant spoke with a solicitor from Slater & Gordon. It seems, more likely than not, that that discussion focused on the termination of her employment in the context of workers compensation rather than unfair dismissal. The applicant says she was told that the “Industrial Commission would not accept her claim”.
l) On 12 April 2016 the applicant again met with Ms Alderton. Ms Alderton’s file note is to the effect that the applicant “stated that she had been in touch with legal people and she had a case for unfair dismissal”. The applicant did not deny this account.
m) On or about 18 May 2016 the applicant met with solicitors Lough & Wells.
n) On 23 May 2016 Lough & Wells wrote to the respondent stating that “our client raised the number of concerns in relation to … The termination of her employment…”.
o) On 25 May 2016 the applicant completed an application for an unfair dismissal remedy.
p) It would appear that on 26 May 2016 the applicant’s solicitors posted the completed application to the Commission.
q) On 1 June 2016 the application was received by the Commission.

When did the termination take effect?
[9] There is a dispute about when the employment ceased. The applicant says it occurred on 17 March 2016. The respondent says it occurred on 16 March 2017. Not very much turns on whether it was 16 or 17 March 2016. In either case the application is out of time.
[10] The only direct evidence received was from the applicant. I am satisfied that the written extension from 16 February 2016 to 16 March 2016 was not communicated to the applicant and that the first she knew about her employment ending was on 17 March 2016. Consequently, the Commission, as presently constituted finds that the applicant’s employment ended on 17 March 2016.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[11] There were 75 days between when the applicant’s employment ended and when an application was filed with the Commission.
[12] In her F2 Application the applicant stated that the reason for the delay was that:

“I accessed Fair Work Aus website, the day following my dismissal, I attempted to process the form. I was not able to proceed beyond the proposition that dismissal was due to the completion of contract. I believe this to be incorrect now, and sought legal advice on 18 May 2016.”

[13] In her first witness statement the applicant stated that, “I was not able to seek legal advice until I saw Mr Wells, solicitor, on 18 May 2016. He gave me advice which has led me to the lodging of this Application.”
[14] The applicant also relied upon medical reasons as a reason for the delay. In her first witness statement the applicant stated,

14. Following the dismissal, I have continued to be in receipt of workers compensation payments and indeed, I have developed anxiety and depression.

15. For many days, I “couldn’t get out of bed”. Dr Speed, my General Practitioner, referred me to Dr McNamara who is a counsellor and I have been attending him for counselling….

16. It was not until Dr McNamara advised me to see Mr Wells that I sought legal advice. I was not well enough within myself to seek out legal advice, but I followed the advice of my counsellor.

[15] The applicant tended a letter from Dr McNamara. Dr McNamra said that the applicant was referred to him on 4 May 2016 and that he assessed her on 16 May 2016. He wrote that,

…it is my opinion that she was profoundly dysfunctional in the period immediately following her precipitous dismissal from her workplace… Ms Head reported being almost catatonic in both thought and behaviour, unable to carry out even simple household task, unable to self care, profound loss of appetite, severely impaired sleep hygiene leading to impaired sleeping and then oversleeping, and significant cognitive confusion.

It is my opinion that Ms Head was in no state, and had impaired capacity, to be able to form any instructions with regard to applying for dismissal within the 21 day period post her dismissal.

[16] Noting that the applicant admits that she spoke to a solicitor from Slater & Gordon on or about 7 April 2016 it is more likely than not that by that date the applicant had received some information about unfair dismissal. This is because Ms Alderton’s file note of the conversation on 12 April 2016 quotes the applicant as referring to unfair dismissal.
[17] Therefore, notwithstanding the report of Dr McNamara, it is apparent that following the cessation of her employment the applicant had the capacity to:

a) access the Commission website and attempt to make an application for an unfair dismissal remedy;
b) make contact with the respondent to seek a meeting;
c) attend a meeting with Ms Alderton on 12 April 2016;
d) speak to a range of advisors about her situation;
e) meet with lawyers on 18 May 2016; and
f) complete an application for an unfair dismissal remedy on 25 May 2016.

[18] Consequently, I am not satisfied that the applicant was so incapacitated that she could not complete an application for an unfair dismissal remedy either, within the 21 days following the cessation of her employment or, more importantly (and relevantly before me) in the 54 days after when an application could have been made within time, on 7 April 2016.
[19] It is beyond question that from 18 March 2016 the applicant was aware of the 21 day time limit for the filing of an unfair dismissal application.
[20] Where there is a delay in the filing of an application it is necessary to consider whether the employee has a credible reason for the whole of the period that the application was delayed. 10

As was recently observed by a Full Bench in Perry v Rio Tinto Shipping Pty Ltd (T/A Rio Tinto Marine),

Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 11

[21] In the present matter there are a number of relevant periods:

a) between 7 April 2016 (by which time the application should have been filed in order for it to be within time) and 12 April 2016 (when the applicant met with Ms Alderton) (First Period);
b) between 12 April 2016 (when the applicant met with Ms Alderton) and 18 May 2016 (when the applicant met with her solicitors) (Second Period); and
c) between 18 May 2016 (when the applicant met with her solicitors and was given advice that she could apply for an extension of time) and 1 June 2016 (when the application was filed) (Third Period).

[22] In relation to the First Period it seems, more likely than not that, as a result of having completed the self-test on the Commission website, the applicant was under the apprehension that she was not eligible to make an application for an unfair dismissal remedy. Of course, the Commission website did not say that the applicant “was not eligible” it only indicated that it “appears” that the applicant is not eligible based on the answers she had provided. Notwithstanding, one can understand why the applicant thought she could not file an application for an unfair dismissal remedy.
[23] On 12 April 2016 the applicant met with Ms Alderton. The file note of the conversation records the applicant mentioning unfair dismissal. The applicant did not deny this. Consequently I’m satisfied that on 12 May 2016 the applicant had in her mind the prospects of an unfair dismissal application and that because of her having accessed the Commission website on 18 March 2016 she was aware of the 21 day time limit and aware at that time that the time limit had expired. During this hearing I explored with the applicant why, following the meeting with Ms Alderton, she did not file an application for unfair dismissal remedy. She said “I thought when the 21 days was up, that was it.”
[24] Therefore, in relation to the Second Period, it seems that the more likely reason for the delay was that the applicant was unaware of the possibility that she could apply for an extension of time. Just as ignorance of the timeframe for lodgement is not an exceptional circumstance, 12 neither is ignorance of the ability to make an application for an extension of time.

The Third Period is completely unexplained. The applicant did not assert representative error. There was no evidence that the delay was caused by her representative and that the applicant was blameless. The applicant knew about the the 21 day time limit from 18 March 2016 and was advised on 18 May 2016 that she could apply for an extension of time. Accordingly, the applicant should have instructed her solicitors to immediately file an unfair dismissal application. This could have been filed online that very day. However, the application was not filed until 1 June 2016 (2 weeks after the applicant received advice about being able to make an application for an extension of time).

Because the Second Period amounts to ignorance of the law and the Third Period is unexplained, the Commission, as presently constituted, is not satisfied that exceptional circumstance arise in the present matter.

Therefore this factor weighs against granting the applicant a further period to make her application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[25] The Commission, as presently constituted, is satisfied that the applicant first became aware of the cessation of her employment on 17 March 2016.
[26] Therefore this factor weighs against granting the applicant a further period to make her application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[27] The applicant took the following action to dispute the dismissal:

a) On 18 March 2016 the applicant accessed the Fair Work Commission website.
b) In April 2016 the applicant spoke with both her QBE Case Manager and a solicitor at Slater & Gordon.
c) On 12 April 2016 the applicant spoke with Ms Alderton about the termination of her employment.
d) On 18 May 2016 the applicant met with solicitors and discuss the termination of her employment.
e) On 23 May 2016 the applicant’s solicitors wrote to the respondent about matters including the termination of her employment.
f) On 25 May 2016 the applicant completed an application for an unfair dismissal remedy.
g) On 26 May 2016 the applicant’s solicitors posted the application to the Commission.
h) On 1 June 2016 the application was received by the Commission.

[28] It is apparent that from the day of the cessation of her employment the applicant was concerned about the unfairness of the termination. On the day after the cessation of her employment she received information from the Commission that led her to believe that she did not have an entitlement to commence an unfair dismissal application. Notwithstanding, the applicant continued to discuss the cessation of employment with a range of advisors and also with the respondent (on 12 April 2016).
[29] Therefore, the action taken by the applicant weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[30] The respondent submitted that the prejudice to it is significant and incurable, in that:

a) there is currently only one employee working with the respondent who was working there when the applicant also worked there, but that because this employee did not work with or supervise the applicant, she can give no salient or relevant evidence in regards to the applicant’s claims and allegations;
b) integral witnesses, including Ms Alderton and Ms Sarah Wilson, no longer work with the respondent, and might need to be summonsed to attend a hearing of the substantive application; and
c) the respondent presently employs only 4 employees, has acutely limited resources to devote to the substantive application, is a small business and relies entirely on funding from Wollongong City Council and the NSW Department of Family and Community Services (the respondent is a not for profit community organisation and has PBI status).

[31] The Commission, as presently constituted, is satisfied that the prejudice to the employer is greater than the usual prejudice associated with delay.
[32] Consequently, the prejudice asserted by the respondent weighs against granting the applicant a further period to make her application.

Paragraph 394(3)(e) - The merits of the application
[33] In the matter of Kornicki v Telstra-Network Technology Group 13the 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 lodgment. 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.” 14

[34] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of the merits in the present matter.
[35] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I have not, in this decision, embarked upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[36] The substantive factual contest between the applicant and the respondent is whether the employment was the subject of a fixed term contract of employment. If it was then there was no dismissal at the initiative of the employer. However, this is not a factual dispute that can be resolved at a jurisdictional hearing. Notwithstanding, I observe that, in the present matter, it seems unlikely that the employment was truly fixed term in nature. At a substantive hearing, therefore, the applicant might get over the first jurisdictional argument. However, she would then face a second jurisdictional objection, i.e. that her position was made redundant.
[37] If the applicant can establish to the satisfaction of the Commission that she was not subject to a fixed term contract and her position was not made redundant then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was unfair.
[38] Consequently, for present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[39] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[40] The parties agreed that this factor is not relevant.

Conclusion

[41] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge his application).
[42] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

The applicant for herself.

Mr Fogarty for the respondent.

Hearing details:

2016.

30 September.

Melbourne, Sydney.

 1 Section 394(2)(a) FW 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) FW Act.

 3   The application was signed on 25 May 2016 and apparently posted by the applicant’s solicitor on 26 May 2016 (that is the date on the covering letter). However, the application was not received by the Commission until 1 June 2016.

 4   The respondent denies that it terminated the employment of the applicant. The respondent says that the employment ended by the effluxion of time, when a fixed term contract expired.

 5   Warrell v FWC [2013] FCA 291.

 6  [2010] FWA 1143.

 7 [2011] 203 IR 1

 8 Ibid [13].

 9   The Commission does not provide legal advice. The disclaimer on the Commission’s website provides that “The content of this website should be used as a general guide only…. These sites are not a substitute for independent professional advice and visitors should obtain any appropriate professional advice relevant to their particular circumstances.”

 10   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251, (2010) 197 IR 403 at [17]; Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426 at [37]. That is not to say that a credible explanation for the whole of the delay is a necessary pre-condition for the grant of an extension of time, since the reason for the delay is but one of a number of matters which are required to be considered under s.394(3) in determining whether exceptional circumstances exist.

 11   [2016] FWCFB 6963, [23], citing Shaw v ANZ Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33].

 12   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [14].

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

 14   Ibid.

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