Michaela Cardamone v Essendon Hair Make Up T/A Essendon Hair Make Up

[2018] FWC 915

[2018] FWC 915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Michaela Cardamone
v
Essendon Hair Make Up T/A Essendon Hair Make Up
(C2017/5741)

COMMISSIONER RIORDAN SYDNEY, 22 FEBRUARY 2018

Application to deal with contraventions involving dismissal.

[1] Ms Michaela Cardamone (the Applicant) was employed by Essendon Hair Make Up from 29 June 2017 – 23 September 2017. The Applicant lodged a general protections application on 17 October 2017. The application was lodged 1 day outside the statutory time limit.

[2] The Fair Work Act, 2009 (the Act) provides that an application made pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took effect 1. The Fair Work Commission (Commission) can extend the time for the lodgement of a general protections application if it is satisfied that there are exceptional circumstances2.

[3] The jurisdictional issue was set down for hearing on 11 December 2017 by telephone. The Respondent refused to participate in the Hearing and was verbally abusive to my Associate before disconnecting the call. I wrote to the Respondent giving the Respondent seven days to provide a satisfactory explanation why he failed to participate in the Hearing. The Respondent failed to respond to this correspondence.

[4] A further telephone Hearing was scheduled for 9 February 2018 at 11am. A voicemail was left on Mr Kanjo’s phone at 11am saying that we would call back at 11.15am. The Commission was successful in making contact with Mr Kanjo on a different phone number at 11:15am. After my Associate identified herself and the Commission, Mr Kanjo launched into an obscene verbal tirade before, once again, disconnecting the call.

[5] I decided to proceed with the Hearing in Mr Kanjo’s absence.

[6] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in 366(2) of the Act. Section 366(2) provides:

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 3 where the Full bench said:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

Section 366(2)(a) – the reason for delay

[8] Ms Cardamone’s application is one day late. Ms Cardamone claimed that her mother posted her application to the Commission on 12 October 2017. Based on the type of Australia Post envelope that Ms Cardamone utilised, the new delivery time estimates from Australia Post are 2 – 6 days.

[9] In accordance with section 590 of the Act, I have contacted Australia Post in an attempt to ascertain the meaning of the markings on the envelope that the Applicant used to send her application to the Commission. The envelope was stamped:

“DLC 992-2

00:16

16/10/2017”

[10] Australia Post has failed to response to the enquiry that my Associate made on 9 February 2018. However, from my investigations I am satisfied that the Applicant’s letter was processed by Australia Post at its Dandenong LC at 12:16am on Monday, 16 October 2017. For reasons known only to Australia Post, this correspondence was not delivered to the Commission until the following day – 1 day after the statutory timeframe.

[11] I am satisfied that the Applicant took all necessary steps to lodge her application on time. There is absolutely no hint of deliberate delay on her part.

[12] I am satisfied that Ms Cardamone had posted her application well before the expiration of the statutory timeframe. The delay in her application being received by the Commission was not her fault. I am satisfied that Ms Cardamone has provided a reasonable explanation for the delay. I have taken this into account

Section 366(2)(b) – any action taken by the person to dispute the dismissal

[13] Ms Cardamone was dismissed on Saturday, 23 September 2017. On Monday, 25 September 2017, Ms Cardamone made contact with the Commission and was referred by the Commission to an employment rights legal centre called Jobwatch. Ms Cardamone’s interview with Jobwatch occurred on 11 October 2017. Ms Cardamone posted her application to the Commission the following day.

[14] I am satisfied that Ms Cardamone was actively taking advice and the necessary steps to dispute her dismissal. I have taken this into account.

Section 366(2)(c) – prejudice to the employer

[15] I am satisfied that there would be no greater prejudice to the Respondent caused by the Applicant’s application being listed now than there would have been had it been lodged in time.

[16] Prejudice to the Respondent is a neutral consideration. I have taken this into account.

Section 366(2)(d) – the merits of the application

[17] In the matter of Kornicki v Telstra Network Technology Group 4the 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 held:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.” 5

[18] For the purpose of determining whether to grant an extension of time the Commission, “should not embark on a detailed consideration of the substantive case.” 6

[19] Ms Cardamone claims that she was dismissed after she had made enquiries about being provided with pay slips back to the commencement of her employment. Ms Cardamone also claims that she was told that she was dismissed because the Essendon Hair Salon did not have time to watch over he in the lead up to the Spring Racing Carnival.

[20] I am satisfied that Ms Cardamone’s application is not without merit. I have taken this into account.

Section 366(2)(e) – fairness as between the person and other persons in a like position

[21] I am satisfied that the issue of fairness as between the Applicant and other persons in a like position is a neutral consideration in this matter. I have taken this into account.

Conclusion

[22] I have taken into account all of the issues pertaining to Ms Cardamone’s application. I am satisfied that Ms Cardamone’s application was delayed due to the activity of Australia Post. It would be unfair for the Applicant to be disqualified from pursuing her general protections application on the basis that she made her application by post rather than by email.

[23] Taking this into account the obiter in Nulty, I find that Ms Cardamone’s circumstances are out of the ordinary course and unusual.

[24] I grant Ms Cardamone an extension of 1 day to lodge her general protections application.

[25] I so Order.

COMMISSIONER

<PR600331>

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by

reason of the operation of the Acts Interpretation Acts 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 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C

 5   Ibid.

 6   Kyvelos v Champion Socks Pty Ltd, Print T2421

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