Michelle Anderson v Eco Light Up Pty Ltd

[2020] FWC 1103

[2020] FWC 1103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michelle Anderson
v
Eco Light Up Pty Ltd
(C2019/7455)

DEPUTY PRESIDENT LAKE BRISBANE, 28 FEBRUARY 2020

Application to deal with contravention involving dismissal - application made outside of statutory timeframe – extension of time – extension of time granted – application dismissed. Application to deal with contraventions involving dismissal.

[1] This Decision concerns an application by Ms Michelle Anderson (Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute in relation to her dismissal by Eco Light Up Pty Ltd (Respondent). The Applicant’s employment commenced with the Respondent on 31 October 2019 and was terminated on 12 November 2019. The Applicant filed her general protections application at 3:44 pm AEST on 5 December 2019.

[1] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The period of 21 days ended at midnight on 3 December 2019. The Application was therefore lodged 2 days out of time. The Applicant asks the Commission to allow a further period for the application to be made. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[2] The matter was listed for conference by telephone before me at 10:00 am on Thursday 2 January 2020. Following the conference, directions were issued requiring the Applicant to file submissions and material setting out the basis that there were exceptional circumstances justifying the granting of a further period in which to make her application, by 4:00 pm on 17 January 2020. The Respondent was directed to file submissions and any material to support its view by 31 January 2020.

[3] I advised parties that with their consent, the matter will be determined on papers. As the parties did not object, I decided to determine the matter based on the written submissions provided by the parties.

Consideration of whether a further period should be granted

[4] As previously noted, s. 366(1) of the Act requires that a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[5] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

(2) The FWC may allow a further period if the FWC 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 similar position.

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the granting of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[7] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[8] In order for the Applicant’s general protection application to proceed, it is necessary for her to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I will consider each of those matters in turn.

s. 366(2)(a) – The reason for delay

[9] The Commission must consider the reason for the delay. The Act does not specify what reason for delay might weigh in favour of an extension being granted, however, decisions of the Commission have referred to an acceptable or reasonable explanation. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters,  5 the Full Bench of the Commission noted an absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each.6

[10] The Applicant’s application was made 23 days after her dismissal. The Applicant stated that her application was not made within the 21 days of her dismissal because of the following reasons.

[11] The Applicant asserts that she had received conflicting information regarding what Fair Work Commission Form she was required to lodge. On 19 November 2019, within the relevant 21 day statutory time frame, the Applicant lodged a Form F2 - Unfair dismissal application. After being advised this was the incorrect form, the Applicant lodged a Form F9 – Application for the Commission to deal with an unlawful termination dispute on 19 November 2019.

[12] On 22 November 2019, the Commission sent correspondence to the Applicant. The Applicant was advised that ss. 382 and 383 of the Act require an application to be made by ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’ and that: 7

You have advised that you were employed from the 31 October 2019 and dismissed on 12 November 2019.

Accordingly, based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the Fair Work Commission (the Commission) has no jurisdiction to deal with your application.

[13] On 4 December 2019, the Commission contacted the Applicant via mobile to again advise that she had completed multiple applications. The Applicant was again advised that she did not meet the minimum employment period prescribed under ss. 382 and 383 of the Act for the Commission to have jurisdiction to hear the matter. The Applicant discontinued both matters over the phone.

[14] Information was provided to the Applicant regarding general protections in an email sent from the Commission at 4:42 pm on 4 December 2019. The email was a generic email that provided information regarding the function of the Commission and included embedded hyperlinks that provided information about general protections.

[15] The Applicant’s unfair dismissal application was afoot up until the 4 December 2019. The Applicant lodged her Form F8 within 24 hours of receiving the email from the Commission at 3:44 pm AEST on 5 December 2019.

[16] The Applicant further submits that her daughter was hospitalised. This required the applicant to attend doctors’ appointments with her daughter. The Applicant states that as a single mother in a situation with no income, she was required to put in place measure to ensure she could pay her bills and that while she was not in hospital with her daughter, she used any spare time she had to seek advice on the termination.

[17] On this factor, there is critical missing medical evidence from the Applicant. The Commission has not been presented with any medical certificates indicating that the Applicant’s daughter was hospitalised. I am required to rely on the Applicant’s written submissions, to which she states as follows:

My daughter was hospitalised and almost passed away.

[18] While no evidence was led, it would be to tempt fate for a parent to lie about their child’s wellbeing and so, with no reason to disbelieve the credibility of the Applicant, I accept this evidence.

[19] The Applicant has an explanation for reasons for the delay during the entire period of the delay. The propinquity between discontinuing the incorrect applications and lodging of a Form F8 and the short period of delay creates an entirely reasonable set of circumstances.

[20] This factor that weighs positively in favour of granting an extension.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[21] Any action taken by an employee to contest the dismissal, other than other than applying under the Act, can be treated as favourable for the purposes of granting of an extension of time. 8

[22] According to the Applicant, she made contact with a Director of the Respondent, in which she advised that what “they were doing was unfair and illegal”. This does show a degree of dispute regarding the dismissal.

[23] Within a week of the Applicant’s dismissal, the Applicant lodged an unfair dismissal application and unlawful dismissal application. The Respondent was therefore aware that the Applicant disputed the termination. The various claims were not “pursuit[s] of an alternative avenue of redress,” merely the product of confusion on the part of the Applicant. 9 The Respondent was made aware that the Applicant disputed the dismissal. This factor weighs positively, but

[24] This is a factor which weighs minimally in support of granting an extension of time for the Applicant.

s. 366(2)(c) – Prejudice to the Respondent including prejudice caused by the delay

[25] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 10

[26] The Applicant lodged an unfair dismissal application seven days after her dismissal. The Respondent was notified by the Commission on 22 November 2019 that it had received an application for unfair dismissal remedy for the Applicant, placing the Respondent in a position to contest the matter and develop submissions.

[27] Whilst there is a different legal matrix between an unfair dismissal claim and a general protections matter, the facts that are relied on will generally be the same irrespective of the type of claim.

[28] Further, there was a short delay between the expiry of the 21 day timeframe and the filing of this application; the extremely minute effluxion of time between the withdrawal of the old application and filing of the Form F8 leaves little room for prejudice to the employer.

[29] Therefore, in relation to this matter, there is not sufficient evidence before the Commission that there would be undue prejudice to the Respondent should an extension of time be granted.

s.366(2)(d) – The merits of the application

[30] In Kornicki v Telstra-Network Technology Group 11 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

[31] The Applicant alleged that because of her taking leave due to illness, adverse action was taken against her. The Respondent denied these allegations.

[32] Without closer examination as to the exact allegations of the Applicant and the response of the Respondent to those allegations, this is considered a neutral factor.

s. 366(2)(e) – Fairness as between the Applicant and other persons in a like position

[33] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 12

[34] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

CONCLUSION

[35] With regards to the reasons, and on the evidence before me, I determine that these reasons combined create exceptional circumstances giving rise to me exercising my discretion to allow an extension of time for the Applicant to lodge his application.

[36] Accordingly, the matter will now be listed for conference before myself.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717126>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

 6   Ibid.

 7   Fair Work Commission correspondence – Application for Unfair Dismissal Remedy - dated 21 November 2019.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 9   Ibid, 300.

 10   Ibid

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

 12   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].