Meagan Costello v Tenney Parker

[2021] FWC 707

[2021] FWC 707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Meagan Costello
v
Tenney Parker
(U2021/429)

COMMISSIONER HAMPTON ADELAIDE, 15 FEBRUARY 2021

Unfair dismissal application filed out of time - extension of the time for filing allowed – application to be conciliated.

[1] This decision concerns an application by Ms Meagan Costello, (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment at Eat at Whalers, a restaurant owned by Tenny Parker, 1 the Respondent in this matter, was terminated with effect from 21 December 2020. The unfair dismissal application was lodged on 15 January 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). In this case, the period of 21 days ended at midnight on 12 January 2021. The application was therefore filed 3 days outside the 21-day period. The Applicant requests the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] This application was the subject of a telephone hearing. In the lead up to the hearing Ms Costello provided a statement setting out the basis of her request for the extension of time. This was provided on the eve of the hearing and beyond the time provided for such materials in directions previously issued by the Commission. Ms Parker relied upon this as an example of the conduct of the Applicant but did not seek to delay the hearing or any other accommodation. Ultimately, both Ms Costello and Ms Parker gave sworn evidence and made submissions about matters relevant to the extension of time request.

[5] In general terms, the facts relied upon by Ms Costello in connection with her extension of time request relate to the chronology of events following her dismissal. For the most part this is supported by the documentary material provided as part of the application itself. There is a dispute about whether Ms Costello was contacted by Ms Parker in the immediate lead up to the dismissal and I accept Ms Parker’s evidence about that aspect. However, this is not directly relevant to the extension of time request.

[6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 2 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.3

[7] I observe that the requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[8] Section 394(3) requires that, in considering whether there are exceptional circumstances that may warrant the grant of an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application and the material and submissions provided by the parties.

Reason for the delay

[10] The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour. However, all of the circumstances must be considered. 4

[11] The Applicant primarily relied upon the “incorrect” filing of a s.372 General Protections (no dismissal) application (C2021/120) as the reason for the delay in lodging this application. A s.372 application was filed by Ms Costello with the Commission on 7 January 2021, which was well within the 21-day time limit to file an application for unfair dismissal. Ms Costello gave evidence that she had consulted with the Fair Work Ombudsman immediately after her dismissal and had been sent both a Form F8C, the General Protections application, and a Form F2, an unfair dismissal application for her to consider and complete. Her evidence was, in effect, that she thought that the Form F8C was the correct application to contest her dismissal but was subject to a medical condition and treatment at the time and did not understand the nature of the application completed.

[12] Staff of the Commission noted that a dismissal notice was attached to the Form F8C General Protections application when being processed and on 14 January 2021 5 emailed Ms Costello to confirm if it was her intention to proceed with that application in light of the apparent termination of her employment. Ms Costello discontinued the s.372 application and filed the s.394 application for unfair dismissal on the following day.

[13] I consider this explanation to be an acceptable and reasonable explanation for the delay. Ms Costello sought advice almost immediately upon her dismissal and sought to lodge an application that she understood would enable her to seek a remedy. I accept that she did not, in selecting the s.372 General Protections application, actually choose an application that would enable her to raise her claim about the dismissal; however, it is apparent that Ms Costello has a very limited understanding of these matters. Upon clarification being sought about her intentions, Ms Costello immediately took steps to rectify the situation and filed the intended application.

[14] The finding of an acceptable explanation weighs in favour of a conclusion that there are exceptional circumstances.

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

[15] Ms Costello was notified of the dismissal on the same day that it took effect. Therefore, she was aware of the ending of the employment on the day it took effect and had 21 days to lodge the application. This factor would normally weigh against the Applicant because she had the benefit of the full 21-day period to lodge an application. In this case Ms Costello did take actions to make an application, but this is more relevant to other considerations.

Action taken to dispute the dismissal

[16] The Applicant took immediate steps to seek advice and took action to dispute the dismissal well within the 21-day period. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted and none has been suggested by Ms Parker. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[18] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials and hearing from both Ms Costello and Ms Parker in the course of the hearing, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible or appropriate to make any firm or detailed assessment of the merits as part of this decision. The Applicant has a prima facie case, to which the Respondent raises an apparent strong defence. This defence includes a foreshadowed jurisdictional issue that the Applicant has not met the relevant minimum employment period. 6 I cannot determine this without considering relevant employment records, forming a view about the nature Ms Costello’s employment, and assessing the impact of what appears to be some potential interruptions to her service. It is not appropriate that I do so as part of forming a view on the extension of time request. As a result, I do not consider that the merits of the present case tell for or against an extension of time and this is a neutral consideration.

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

[19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, I am not aware of any persons or cases that are relevant to the relevant question of fairness in the present context. I consider this to be a neutral consideration in the present matter.

Conclusion

[20] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I am satisfied that there are exceptional circumstances. I am also satisfied that I should extend the time for the lodgement of this application under s.394(2((a) of the Act to permit the matter to be lodged when it was.

[21] An Order 7 extending the time for lodgement is being issued in conjunction with this Decision.

[22] In the circumstances, I consider that this matter should be promptly listed for a conciliation conference before this arm of the Commission. A Notice of listing with the relevant details will be sent to the parties.

COMMISSIONER

Appearances:

Ms Costello, Applicant on her own behalf.

Ms Parker, Respondent on her own behalf.

Hearing details:

2021
February 11
By Telephone.

Printed by authority of the Commonwealth Government Printer

<PR726866>

 1   Ms Parker has been identified in both the Form F2 application and the Form F3 response as being the respondent employer. During the hearing of this matter, Ms Parker indicted that the employer was an unincorporated partnership and the correct identity of the respondent may need to be further considered given the import of this Decision.

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 3   Ibid.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 5   Ms Costello may have seen this email on the 15 January 2021 according to her statement.

 6   Sections 382, 383 and 384 of the Act.

 7   PR726959