Melissa Botherway v The Trustee for the Darrouzet Property Trust
[2022] FWC 2820
•28 OCTOBER 2022
| [2022] FWC 2820 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Melissa Botherway
v
The Trustee For The Darrouzet Property Trust
(C2022/5595)
| COMMISSIONER SCHNEIDER | PERTH, 28 OCTOBER 2022 |
Application to deal with contraventions involving dismissal
Ms Melissa Botherway (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she has been dismissed from her employment with The Trustee For The Darrouzet Property Trust (the Respondent) in contravention of the Act.
The Respondent objects to the application on the ground that the application was lodged out of time. The Applicant was dismissed on 29 June 2022. The application was lodged on 10 August 2022. Before the matter progresses, the Commission must determine whether an extension of time in which to lodge the application should be granted.
Relevant Law
Section 366(1) of the Act provides that such an application must be made within 21 days after the dismissal took effect; or within such further period as the Commission allows.
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account; the reason for the delay; and any action taken by the Applicant to dispute the dismissal; and prejudice to the employer (including prejudice caused by the delay); and the merits of the application; and fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
Background
The Applicant was engaged by the Respondent as a casual food and beverage supervisor pursuant to a contract dated 18 January 2022 and she commenced work on 14 March 2022.
During her short period of employment, the Applicant would agree to perform work for the upcoming roster. However, as the Respondent submits, shortly before the Applicant was to commence a rostered shift, the Applicant would notify the Respondent that she was no longer available. The Respondent accepts that, as a casual employee, the Applicant had the ability to accept or reject work offered by the Respondent. Nevertheless, the Respondent took issue with the Applicant’s conduct, specifically that the Applicant would advise of her unavailability shortly before a shift she had previously accepted to work would commence. The Respondent submits that this behavior significantly impacted on the operation of the Respondent’s business, created rostering issues, and led to the recruitment of additional casual staff.
In the Respondent’s response to the application, it submits that, on 29 June 2022, the Applicant was rostered to work. The Applicant allegedly attended her shift late. Two hours into this shift, the Applicant notified her manager that she would be unable to work her allocated shifts on 30 June 2022 and 3 July 2022. The Applicant’s manager expressed frustration with the Applicant’s continued cancellation of shifts and notified the Applicant that the Respondent would no longer be rostering the Applicant to work.
The Applicant’s account of the alleged dismissal, in part, mirrors the above. However, the Applicant contends that she notified her manager that she would need the days off for a medical procedure. The applicant also alleges other personal grievances with her manager.
The Applicant claims a protected attribute under section 351 of the Act, being discrimination. The Respondent denies that any adverse action has been taken and asserts that the Applicant has failed to establish any protected attribute.
Consideration
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.” [2]
It is not in dispute that the dismissal took effect on 29 June 2022. The final day of the 21-day period was therefore 20 July 2022 and ended at midnight on that day. The application was made on 10 August 2022. The application was made 21 days late.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 July 2022. The delay is the period commencing immediately after that time until 10 August 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
On her application form, in response to the question of whether the application had been made within time, the Applicant agreed that she was lodging out of time and provided the following reason:
“I started an application straight away after being dismissed however it was with a third party company in which I had thought It was with fair work. I also have proof of this. I then realised they were out to charge me a huge fee (maybe a scam?) I then called fair work to discuss & have now lodged my application with the correct authority.”
Directions were sent to the parties on 15 September 2022. These Directions instructed the Applicant to file any materials relating to the out of time issue by 30 September 2022. The Applicant did not comply with this Direction.
On 3 September 2022, Chambers highlighted this noncompliance and provided the Applicant further time, until 10:00am on 5 October 2022, to provide her materials. The Applicant replied at 9:00pm on 4 October 2022 with the following:
“Sorry I am away on vacation; do you mean evidence to support the extension for my case?”
On 5 October 2022, Chambers responded to the Applicant and confirmed her understanding was correct and provided the Applicant until 10:00am 6 October 2022 to comply. This email from Chambers also highlighted:
“We note in your application form you stated that you would provide proof of your listed reason for delay”
In reply, and an hour before the deadline for compliance, the Applicant responded:
“Hi could this please be extended as I’m away on holiday on the other sode of the world” (sic)
In response to this request, I instructed my Chambers to reject the Applicant’s extension request and to highlight that the Applicant had waited until the deadline for her compliance had already lapsed by 6 days. To date, the Applicant has not provided the proof she claimed to possess or any other materials regarding the out of time issue.
The Respondent refutes the Applicant’s reason for delay. In its submissions the Respondent, in part, asserts:
“With regards to the first factor, the Applicant has not provided any evidence that she commenced her application with a third party she mistook to be the Commission. The Respondent notes, however, that the Applicant has indicated she commenced the application “straight away”, suggesting that the Applicant was aware that a time limit was associated with lodging her application
With regards to the second factor, again the Applicant has not provided any evidence to support whether she contacted the Commission, and if so, the time and date she contacted the Commission. Nonetheless, had the Applicant made contact with the Commission, it is uncontroversial to state that the Applicant would have been advised by the Commission of the statutory timeframe associated with her application.
Further, the Respondent notes that there are unexplained periods of delay. These include the delay between the Applicant commencing her Application with the third party and becoming aware they were seeking a payment, the delay between this event and the Applicant contacting the Commission, and the delay between the Applicant seeking procedural advice from the Commission and filing her Application.”
Whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the application.
Action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 12 August 2022.
Prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
Merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the application and response forms.
The Applicant alleges a protected attribute under section 351 of the Act, being discrimination. The Applicant did not clarify which specific attribute under section 351(1) of the Act she alleges the Respondent took adverse action as a result of. In further explanation, in her application, the Applicant stated, “I believe I have been discriminated against for needing to take the time off.” The Commission notes that, requesting time off is not a protected attribute specified under section 351 of the Act.
The Respondent’s position is that the Applicant has failed to establish any connection to her having a protected attribute, nor has she established a connection between any protected attribute and the end of her employment.
The Respondent submits that, on the material currently before the Commission, it is open to the Commission to find that the application is lacking merit and has little prospects of success. The Commission is inclined to agree, however, notes that the materials currently before the Commission are minimal and no hearing of the contested facts has taken place.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. Specifically, I note the disagreement over whether the Applicant indeed notified the Respondent of her medical procedure prior to her dismissal. As noted by the Full Bench in Nulty v Blue Star Group,[6] it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Are there exceptional circumstances
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.[7] Exceptional circumstances may 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 can be considered exceptional.
In consideration of the materials before me, and in assessment of the above factors, I am not satisfied that there are exceptional circumstances. I find the circumstances of this matter, in isolation and combined, do not give rise to the Commission exercising its discretion to grant an extension of time.
The Applicant has continuously failed to provide any further explanation or materials regarding the circumstances surrounding the late lodgment. On the materials and explanation before me, I am not satisfied that there are any circumstances justifying the late lodgment.
Having regard to all of the matters listed at section 366(2) of the Act, in isolation and combined, I am not satisfied that there are exceptional circumstances that would give rise to granting an extension of time.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The application before the Commission must be dismissed, an Order to that effect has been issued.[8]
COMMISSIONER
Final written submissions:
Respondent, 12 October 2022.
[1] [2018] FWCFB 901, at [39].
[2] [2020] FWCFB 553, at [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] [2015] FWCFB 287, at [12].
[4] [2018] FWCFB 901, at [39].
[5] [2018] FWCFB 901, at [40].
[6] [2011] FWAFB 975, at [36].
[7] [2011] FWAFB 975, at [13].
[8] [PR747028].
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