Michelle Jarman v HWC Pty Ltd T/A Buxton Balwyn
[2018] FWC 7410
•5 DECEMBER 2018
| [2018] FWC 7410 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Michelle Jarman
v
HWC Pty Ltd T/A Buxton Balwyn
(C2018/5877)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 5 DECEMBER 2018 |
Application to deal with contraventions involving dismissal – late application – extension of time refused.
[1] On 19 October 2018, Mrs Michelle Jarman filed an application (Application) pursuant to s.365 of the Fair Work Act 2009 (the Act). Mrs Jarman alleges she was dismissed on 26 September 2018 and her employer, HWC Pty Ltd T/A Buxton Balwyn (Buxton Balwyn), contravened s.340 of the Act.
[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2
[3] This decision concerns whether I should exercise my discretion to allow Mrs Jarman a further period of time for the Application to be made.
The Hearing
[4] On 3 December 2018, a hearing was conducted in relation to Mrs Jarman’s application for an extension of time.
[5] Ms Angela Daniel of Flitner & Company Pty Ltd (Flitner & Co.), Mrs Jarman’s lawyer, sought permission to represent Mrs Jarman pursuant to s.596 of the Act. Buxton Balwyn objected but after considering oral submissions from the parties on this issue and having weighed the circumstances and considerations in s.596 of the Act, I granted permission for Mrs Jarman to be represented.
[6] Mrs Jarman gave evidence in support of her application for an extension of time, as did Ms Daniel. Buxton Balwyn presented its submissions through its Office Manager, Ms Kim Bui, who also gave evidence. Mr William Chen, the Managing Director of Buxton Balwyn, also gave evidence.
Legislation
[7] Section 366 of the Act sets out the statutory requirements for the timing of an application made pursuant to s.365:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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 like position.”
[8] It is clear from the statutory provisions that the Commission can extend the time for the lodging of an application under s.365 of the Act if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s.366(2) and only if the Commission is satisfied that there are exceptional circumstances, can it then exercise its discretion to grant an extension of time.
[9] The test of “exceptional circumstances” establishes a “high hurdle” for a person applying for an extension. 3
[10] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group Pty Ltd. 4 In that matter, the Full Bench held the following in relation to “exceptional circumstances”:
“[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.” 5 (references omitted)
Relevant chronology of events and reasons for delay
[11] While Buxton Balwyn had originally intended to notify Mrs Jarman of her dismissal on 27 September 2018 in a meeting Mr Chen proposed to conduct, Mrs Jarman discovered a payment categorised as “ETP Payment In Lieu of Notice” which amounted to two weeks’ pay, having accessed her pay slip for the month of September 2018 on 26 September 2018. Mrs Jarman subsequently confirmed with Mr Chen that her employment was to be terminated and after a short conversation, advised him she was going to lunch and would not be returning. Mrs Jarman then left the Buxton Balwyn premises. At the hearing, the parties advised there was no dispute that Mrs Jarman was dismissed on 26 September 2018 and I am satisfied this was the case.
[12] It is therefore not disputed that:
a) Mrs Jarman commenced her employment with Buxton Balwyn on 14 May 2018;
b) Her dismissal took effect on 26 September 2018; and
c) Her period of employment was a little over four months in duration.
[13] Mrs Jarman firstly filed an unfair dismissal application against Buxton Balwyn in relation to her dismissal. She did this on Thursday 11 October 2018 and it was assigned the Commission matter number U2018/10565. The Form F2 – Unfair dismissal application (Form F2) recorded that she began working for Buxton Balwyn on 14 May 2018, she discovered her employment was going to be terminated on 27 September 2018 and her dismissal took effect on 10 October 2018. The Form F2 also indicated that Mr Thomas Flitner of Flitner & Co. was her representative.
[14] The next day, on Friday 12 October 2018, the Commission attempted to telephone Mrs Jarman to advise that her Form F2 indicated she had not met the minimum employment period required in order to bring an unfair dismissal application under the Act. As Mrs Jarman could not be reached, a voicemail was left seeking her return call. The Commission then emailed correspondence dated 12 October 2018 to Mrs Jarman and Mr Flitner, which stated that based on the information provided, it did not appear that Mrs Jarman had satisfied the minimum employment period under the Act and that in these circumstances, the Commission had no jurisdiction to deal with her application. This Commission also outlined the option for Mrs Jarman to obtain advice on the options available to her.
[15] Mrs Jarman and Ms Daniel confirmed that this correspondence was received by them on Friday 12 October 2018 (in Ms Daniel’s case, it was received by Flitner & Co.). Mrs Jarman says she did not see this correspondence until the afternoon.
[16] Mrs Jarman said she first discussed the Commission’s emailed letter with Mr Flitner on Monday 15 October 2018. She said she was told by him that the application had been made on the wrong form. As to whether the 21 day time limit for making a general protections application was discussed, Mrs Jarman thought she was advised by Mr Flitner that she was still within the 21 day time limit. She recalls Mr Flitner advising her that she should file a general protections application straight away.
[17] Mrs Jarman says she completed some (but not all) pages of a Form F8 – General protections application involving dismissal (Form F8) on Monday 15 October 2018 and sent it by ordinary post on either 16 or 17 October 2018. She said that when she posted the application, the post office was not open and she only had a postage stamp for ordinary mail. The Form F8 was date stamped as received by the Commission on Friday 19 October 2018. Mrs Jarman says she did not initially send her Form F8 by email because she did not have the facilities to scan a signed copy. However, on 19 October 2018, Mrs Jarman emailed a further, unsigned Form F8 which included all pages and was received by the Commission at 3:49pm. Shortly after this, Mrs Jarman paid the required application fee.
[18] Mrs Jarman had discontinued her unfair dismissal application by advising a member of the Commission’s staff in a telephone conversation at or about 3.20pm on 19 October 2018. 6
[19] Mrs Jarman’s Application, comprising either or both of the Form F8 documents, was therefore made on Friday 19 October 2018.
Consideration
Section 366(2)(a) – reason for the delay
[20] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 7 A dismissal can be communicated orally.8
[21] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 9 In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,10the Full Bench explained the approach to be taken by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.” 11
[22] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.366(2)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis): 12
“[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[23] The 21 day time period for Mrs Jarman to make a general protections application pursuant to s.365 of the Act expired on Wednesday 17 October 2018. 13 Given that Mrs Jarman made her Application on Friday 19 October 2018, the Application was two days late.
[24] In accordance with the principles summarised in paragraphs [20] to [22] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 17 to 19 October 2018. However, the circumstances from the time of the alleged dismissal (26 September 2018) must be considered in order to determine whether there is an acceptable reason for any part of the delay beyond the 21 day period.
[25] Mrs Jarman made an unfair dismissal application on 11 October 2018, which was 15 days after her dismissal took effect. Of the period from 26 September 2018 until she was advised by the Commission on the 16th day (12 October 2018) that her Form F2 indicated she had not met the minimum employment period required in order to bring an unfair dismissal application under the Act, it is pertinent to confirm that ignorance of the 21 day timeframe to lodge a general protection application involving dismissal is not, of itself, an exceptional circumstance. 14
[26] In this case, I am satisfied that even having received the advice on 12 and 15 October 2018, there was still sufficient time for Mrs Jarman to have made a general protections application within the 21 day timeframe.
[27] Having received the correspondence from the Commission on 12 October 2018, Mrs Jarman discussed her circumstances with Mr Flitner on Monday 15 October 2018. At this time, she was advised to file a general protections application straight away. As things turned out, she both partially completed a Form F8 and appears to have sent it within 21 days after her dismissal took effect but it was not received until on Friday 19 October 2018, 23 days after her dismissal took effect. The second Form F8 was emailed to the Commission at 3:49pm on Friday 19 October 2018.
[28] The relationship between Mrs Jarman and Flitner & Co. was described to me by both Mrs Jarman and Ms Daniel as being one in which Mrs Jarman initially received some “free legal advice” from Flitner & Co. without the law firm having been retained by her. I was advised that Flitner & Co was not retained until Tuesday 23 October 2018. Mrs Jarman says she was told that Flitner & Co. would represent her if the matter proceeded and Ms Daniel did not demur.
[29] It has not been put that Mrs Jarman’s delay was due to representative error. It is nonetheless useful to bear in mind that if an applicant is relying on representative error to explain a delay, it is relevant to consider whether the applicant was blameless or whether the applicant by act or omission caused or contributed to the delay. 15 A Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency16(Davidson) stated in relation to representational error:
“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
[30] The Full Bench majority in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service considered the approach summarised by the Full Bench in Davidson remains relevant. 17
[31] While representational error has not been raised as a reason for the delay, I have had regard to the involvement of Flitner & Co. I have not concluded that the delay beyond 17 October 2018 should be apportioned to it.
[32] Mrs Jarman received the emailed letter from the Commission on Friday 12 October 2018 stating that it did not appear she had satisfied the minimum employment period under the Act for the unfair dismissal jurisdiction and outlining the suggestion she obtain advice on her available options. Mrs Jarman was therefore on notice that she may need to do something else if she wanted to challenge her dismissal. Further, on Monday 15 October 2018, Mrs Jarman was advised by Flitner & Co. to file a general protections application straight away. From this time, Mrs Jarman was in receipt of advice that she could not proceed with an unfair dismissal application and that she should proceed to immediately lodge a general protections application, for which she was still inside the 21 day timeframe. It was incumbent upon Mrs Jarman to move quickly to file the Application.
[33] While a reason Mrs Jarman gave for the delay was “getting the paperwork together” for the new application, I do not find this compelling. This is because Mrs Jarman also gave evidence that she completed the first Form F8 on Monday 15 October 2018. Having done so, Mrs Jarman then had until the end of Wednesday 17 October 2018 to lodge her general protections application.
[34] The Form F8 makes clear on its cover page that an application must be lodged within 21 days after the dismissal in question took effect and that an application can be lodged online, using the Commission’s Online Lodgment Service (OLS), or by post, by fax, by email or in person. Mrs Jarman had a range of options available to her and I am therefore not persuaded by Mrs Jarman’s evidence that not having access to a scanner so that a signed copy of a Form F8 could be emailed is a credible explanation for the delay in this case. I have also noted her evidence that she emailed the Commission her second Form F8 (unsigned) on 19 October 2018.
[35] The Australia Post website outlines the anticipated speed of its various delivery services. 18 For what are described as ‘Regular letters’, the delivery speed for an item sent between metropolitan locations is said to be 2-3 business days after posting. In posting her first Form F8 on either 16 or 17 October 2018, Mrs Jarman ran the risk, which materialised, that her application would be made outside the 21 day timeframe. As was stated by Deputy President Gostencnik in Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare:19
“In my view, merely sending an item by ordinary surface post, which item is delivered within the Australian Post estimate, does not provide an acceptable reason for the delay and is a matter that is entirely in the control of the applicant. An applicant who waits until very late in the day to send an application to the Commission by ordinary surface post, runs the real risk that the application will not be delivered in time. To that extent, I agree with the observations made by the Commissioner in Wiggins, that sending an item by ordinary surface post is fraught with risk and that it is not uncommon for such items to be delayed or even lost, and that in and of itself does not provide an acceptable explanation.” 20
[36] I am satisfied that the delay beyond 17 October 2018 was occasioned by the conduct of Mrs Jarman in electing to lodge her first Form F8 by ordinary post rather than using another method of lodgment and then not sending it until either 16 or 17 October 2018.
[37] For the reasons set out above, I am not satisfied that Mrs Jarman has provided a credible explanation for any part of the delay in filing her Application. This factor weighs against a finding of exceptional circumstances and granting Mrs Jarman an extension of time.
Section 366(2)(b) – any action taken by the person to dispute the dismissal
[38] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may be treated as favouring the grant of an extension of time. 21
[39] Mrs Jarman submitted that she spoke to Mr Chen on 26 September 2018 and challenged him as to why her employment was being terminated. This is not in dispute.
[40] Further, Mrs Jarman disputed her dismissal by initially filing an unfair dismissal application on 11 October 2018.
[41] I am therefore persuaded that Mrs Jarman’s conduct can be characterised as taking action to dispute her dismissal. In the circumstances, this weighs in favour of a finding that there are exceptional circumstances.
Section 366(2)(c) – prejudice to the employer (including prejudice caused by the delay)
[42] Prejudice to the employer will weigh against granting an extension of time. 22 The employer must produce evidence to demonstrate prejudice.
[43] Buxton Balwyn has submitted that it is a small business with six permanent employees and that as a real estate agency, its busiest period is typically during the months of spring. In its written material, Buxton Balwyn further submitted:
“The time and resources the Respondent has been required to dedicate to formulating a response to the Applicant’s application, in circumstances where she has not disclosed the existence of any exceptional circumstances to justify an extension of time, has had a considerable and continuing adverse impact on the Respondent’s business.”
[44] At the hearing, Ms Bui stated that Buxton Balwyn commenced operations in late-March 2018 and has only been operating for eight months. She said that as a young small business, with no human resources expertise, Buxton Balwyn had experienced negative impacts on its financial position and productivity levels as a result of having to seek professional advice and the need to give priority to this matter over its other operational requirements. Furthermore, it was submitted that the entire Buxton franchise was undergoing a major system change and that this has caused an unprecedented increase in its workload.
[45] Mrs Jarman submitted that as her application was only two days late, this did not impact Buxton Balwyn nor cause it disadvantage or unfairness.
[46] I acknowledge that the process of having to respond to Mrs Jarman’s application has impacted on Buxton Balwyn. However, noting that the delay was two days, I am satisfied that there would be no greater prejudice to Buxton Balwyn caused by the Application being dealt with now than there would have been had it been made within the 21 day time period.
[47] However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 23 Accordingly, I consider this factor to be a neutral consideration in this case.
Section 366(2)(d) – merits of the application
[48] The Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra-Network Technology Group v Kornicki, 24 stating:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 25
[49] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case” 26 for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
[50] The alleged contravention of the general protections provisions of the Act set out within Mrs Jarman’s application is described as being Buxton Balwyn’s failure to consult or provide feedback and reviews about her work performance during the course of her employment. It was outlined that had negative feedback been given, Mrs Jarman would have been able to respond and improve.
[51] At the hearing, Mrs Jarman contended that her workplace right was to be informed of any mistakes made during her employment and to have the opportunity to improve her performance. She asserted that she was never notified of any mistakes in her work and that most comments made to her were “good job”, or comments of a similar nature. Mrs Jarman’s position appeared to be that she had a workplace right to performance reviews so she could be informed of her mistakes and given an opportunity to improve and because these had not occurred, she had been terminated.
[52] Mrs Jarman also submitted she had made enquiries about her pay because her employment contract stated that her wages would be paid around the 15th of each month but all staff were being paid around the last or first day of each month. She appeared to submit a reason her employment was terminated was because she had made these enquiries.
[53] Mrs Jarman further alleged that Buxton Balwyn had breached the general protections provisions in Part 3-1 of the Act because of the unprofessional manner in which she found out about her dismissal.
[54] Buxton Balwyn submitted that it did not conduct a performance review with Mrs Jarman because one had not fallen due and its intention was to perform performance reviews with staff on a six monthly basis. Moreover, it submitted that attempts to speak with Mrs Jarman about her alleged poor performance were difficult because she was often defensive and difficult to approach. There was conflicting evidence regarding the nature of one particular discussion that occurred between Mrs Jarman and Mr Chen.
[55] Mr Chen said the decision was reached that Mrs Jarman was not a good fit for Buxton Balwyn. He described Mrs Jarman as having a rude and abrupt manner and as having failed to exhibit professionalism in front of clients. Some examples of Mrs Jarman’s alleged behaviour were outlined in Buxton Balwyn’s written material.
[56] What became clear in the hearing is that the parties held different views concerning:
a) whether Mrs Jarman was given feedback on her performance;
b) the attitude Mrs Jarman displayed in carrying out her duties; and
c) the standard of Mrs Jarman’s performance.
[57] On the issue of payments to Mrs Jarman, Mr Chen gave evidence that Buxton Balwyn had firstly adopted the practice stipulated in the Buxton Group corporate employment contracts, which contain the default provision that salaries will be paid on the 15th of each month. He said the decision was then made to change Buxton Balwyn’s pay run from the 15th of each month to the end of the month based on the advice of its accountant. The reason for the change appeared to be because it was felt that the new timing would be more practical in terms of making commission payments. Mr Chen said this was communicated to all staff both orally and in writing and following this change, payments were usually made promptly at the end of the month. While there were a few occasions upon which payments were made 1-2 days late, Mr Chen said these were attributable to the fact the payroll function was outsourced to an external accountant.
[58] Ms Bui gave further evidence that Mrs Jarman was not discriminated against in the workplace and contended she had been granted many privileges over and above the other staff in the office, including being given use of a car space behind the office (usually reserved for senior staff and sales staff), being permitted to finish work 30 minutes earlier on Tuesdays and Thursdays at full pay for the 2nd and 3rd school terms of 2018, being permitted to finish work early on some other occasions at full pay, and having opportunities created to ensure she could participate in social activities.
[59] Whether Mrs Jarman was dismissed for any of the reasons contended by her are contested issues of fact which will only be able to be determined after a full hearing on the merits, including cross examination of relevant witnesses. I also apprehend that the arguments relating to how the general protections provisions have been breached would most certainly be further developed.
[60] In these circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.
Section 366(2)(e) – fairness as between the person and other persons in a similar position
[61] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 27 considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.” 28
[62] I am not satisfied that the issue of fairness as between Mrs Jarman and other persons in a similar position is a relevant consideration in this matter and regard the submissions the parties made when asked about this consideration as being submissions going to the merits of the Application. Because it is not relevant in this matter, I find that this factor is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[63] The task before me in determining the Application was laid out by the Full Bench in Stogiannidis:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 29
[64] I have considered each of the matters specified in s.366(2) of the Act. Having weighed each and considered them collectively, I am not satisfied that there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
[65] I have not been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) and I decline to exercise my discretion to extend the time for Mrs Jarman to make her Application.
[66] Accordingly, the Application is dismissed and an Order to that effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms A Daniel for Mrs Jarman.
Ms K Bui for HWC Pty Ltd T/A Buxton Balwyn.
Hearing details:
2018.
Melbourne:
3 December.
Printed by authority of the Commonwealth Government Printer
<PR702887>
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 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 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
4 (2011) 203 IR 1.
5 Ibid at [13].
6 Rule 10(2)(b)(i) of the Fair Work Commission Rules 2013.
7 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].
8 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne, Print Q9605 (unreported, AIRC, Whelan C, 10 December 1998).
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
10 [2016] FWCFB 349.
11 Ibid at [31].
12 [2018] FWCFB 901.
13 21 days from 26 September 2018 (not including 26 September 2018) is 17 October 2018.
14 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
15 Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-420; Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [25].
16 Print Q0784, 12 May 1998.
17 McConnell v A & PM Fornataro T/A Tony’s Plumbing Service [2011] FWAFB 466 at [35].
18 [2014] FWC 4002.
20 Ibid at [35]
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
22 Ibid.
23 Ibid.
24 Telstra-Network TechnologyGroup v Kornicki (1997) 140 IR 1; Print 3168, 22 July 1997.
25 Ibid at 11.
26 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].
27 [2016] FWCFB 6963.
28 Ibid at [41].
29 [2018] FWCFB 901.
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