Michelle Jackson v Homes Out West

[2020] FWC 4176

[2020] FWC 4176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Jackson
v
Homes Out West
(U2020/7102)

DEPUTY PRESIDENT DEAN SYDNEY, 10 AUGUST 2020

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.

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

[2] The Applicant’s employment with Homes Out West (the Respondent) was terminated with effect from 30 April 2020. The unfair dismissal application was lodged on 22 May 2020.

[3] Section 394(2) of the Act prescribes 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). The period of 21 days in Ms Jackson’s case ended at midnight on 21 May 2020. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] A hearing was conducted on 4 August 2020 to determine whether to extend time for the application to proceed. The Applicant appeared on her own behalf and Ms E Slaytor of Australian Business Lawyers & Advisors appeared with permission for the Respondent.

[5] 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. 1 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.2

[6] Section 394(3) requires that, in considering whether to grant 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.

[7] 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.

Reason for the delay

[8] 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. 3

[9] Ms Jackson provided the following explanation as to reason for the delay:

“Before submitting my application I had to gather all of the incidents and issues with the organisation to be able to go with the application to provide clear clarification about the reasons that I believe it is unfair dismissal. Whilst I was ensuring that I had all of the correct information I had many conversations with Fair Work and fair trading. It took me a few weeks to ensure all of the information was clear and accurate.”

[10] The Applicant confirmed she was aware of the 21 day time limit but had incorrectly counted the days, thinking that she had submitted her application on the 21^st day.

[11] The Respondent submitted that the reasons for the delay put forward by the Applicant do not advance any exceptional circumstances and do not warrant the granting of an extension of time.

[12] I do not consider that the Applicant has provided an acceptable reason for the delay. While I appreciate the importance of ensuring that the information contained with an application is accurate, the application form does not require a full and detailed explanation of the circumstances leading to the dismissal, such that the application is made outside the 21 day time period.

[13] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

[14] It is not in dispute that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against the Applicant.

Action taken to dispute the dismissal

[15] The Applicant did not take any action to dispute her dismissal until this application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[16] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[17] The Act requires me to take into account the merits of the application in considering whether to extend time, without embarking on a detailed consideration of the substantive case.

[18] The Applicant provided a very detailed and lengthy explanation of why she believed she was unfairly dismissed. In summary, she said she had worked without issue until a new manager was appointed, after which she was victimised and bullied.

[19] The Respondent submitted it had a valid reason to bring the Applicant’s employment to an end, based on her ongoing conduct and performance in her role. The Respondent submitted it followed a cautious and procedurally fair disciplinary process with the Applicant whereby she was informed of all the allegations against her in writing, and she was afforded every opportunity to participate in the process and provide her response to the allegations. Once the Respondent had completed its investigations and had made findings, the Applicant was informed of those findings and was again provided with an opportunity to respond to the reasons the Respondent was proposing to bring her employment to an end.

[20] I consider the merits to be a neutral consideration in determining whether exceptional circumstances exist as both parties have an arguable case.

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

[21] 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. I do not consider there being any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

Conclusion

[22] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

M Jackson on her own behalf.
E Slaytor for the Respondent.

Hearing details:

Sydney (By telephone).
2020:
August 4.

Printed by authority of the Commonwealth Government Printer

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

 2   Ibid.

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