Mele Akausla v Baptist Community Services

[2013] FWC 6376

[2013] FWC 6376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mele Akausla
v
Baptist Community Services
(U2013/8331)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] Mrs Akausla seeks an extension of time for lodgement of her application made pursuant to s 394 of the Fair Work Act 2009 (the Act). I heard her application on 12 July 2013. Mrs Akausla represented herself. The respondent was represented by a solicitor, Mr Hor. I considered Mr Hor’s application for leave to appear and determined that this application was an appropriate application in which to grant leave for legal representation for the respondent.

[2] The relevant legislative framework for the exercise of the Fair Work Commission's discretion in relation to applications of this kind is set out in sub section 394(3) of the Act.

“‘S394 Application for unfair dismissal remedy

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(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.’

[3] In a discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[4] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[5] Mrs Akausla did not provide a written submission before the hearing as required. At the hearing Mrs Akausla provided an oral explanation which was summarised by Mr Hor in the submission he provided subsequent to the hearing:

“a. her employment was terminated and she became aware of the termination on 11 January 2013;

b. on or about 14 January 2013 the Applicant contacted the FWC and was informed of the 21 day limit to file an application for unfair dismissal;

c. she misunderstood advice provided to her by the FWC and understood that she had to wait 21 days to file an application for unfair dismissal;

d. after 21 days she attended the Registry of the FWC and was told that she was out of time and directed to contact Legal Aid;

e. she made an appointment with Legal Aid and had to wait four and a half weeks; and

f. on 8 April 2013 she met with Susie Brewer a Civil Law Solicitor at the Parramatta Office of Legal Aid.”

[6] I do not consider that Mr Hor’s submission in relation to ignorance of the law was relevant to this application. Mrs Akausla did not submit that she did not know the law or that she was too poor to gain access to legal advice. What she submittted is that she made an enquiry of the Fair Work Commission (FWC) and was provided with an explanation. She submits that either that explanation was wrong, or she misunderstood it. Mrs Akausla is not an educated woman and her first language is not English. I accept the truth of her explanation.

[7] I accept Mrs Akausla’s explanation as to the time it took to seek an appointment with Legal Aid and accept that she was advised to do this by FWC staff.

[8] The relevant legislative framework for the exercise of my discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[9] I have taken into account the reason for Mrs Akausla’s delay in lodging her application.

[10] I have taken into account the fact that there would be prejudice to the respondent from the obligation to defend this application if I extend the time for lodgement. I am not persuaded that there would be any other prejudice.

[11] I have taken into account the merits of the application. Mrs Akausla did not make any submissions regarding the merit of her application. Having considered the material provided by the respondent I have concluded that Mrs Akausla could not succeed in her application.

[12] On balance, taking into account all of the matters to which my attention is directed by the Act, I am not satisfied that I should exercise my discretion and extend the time for lodgement of this application.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

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