Michelle Lee Larsen v Jemella Australia Pty Ltd t/a GHD Hair

[2019] FWC 4404

[2019] FWC 4404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michelle Lee Larsen
v
Jemella Australia Pty Ltd t/a GHD Hair
(C2019/2722)

DEPUTY PRESIDENT MANSINI MELBOURNE, 25 JUNE 2019

Application to deal with a general protections dispute involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that Mrs Michelle Larsen (the Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge her application. These are the reasons for that decision.

Was the application made out of time?

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] There may be a jurisdictional objection about whether the Applicant was “dismissed”. However, for the purposes of the Commission dealing with this application it is sufficient that the application on its face alleges dismissal in contravention of Part 3-1 of the Act. 1

[5] It is not disputed that the effective date of the alleged dismissal was 3 April 2019. The Applicant did not lodge her application until 25 April 2019. Accordingly, the period of 21 days ended at midnight on 24 April 2019 and the application was lodged one day out of time.

[6] The Applicant asks that the Commission allow a further period for the application to be made. GHD Hair (the Respondent) opposes.

Are there exceptional circumstances?

[7] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.

[8] The exceptional circumstances test establishes a high hurdle for an applicant. 2 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 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 can be considered exceptional.4

[9] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[10] 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” or “credible” explanation. 5 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.6 Ultimately, it is a question of degree and insight.7

[11] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 8

[12] The Applicant gave evidence that she was aware of the 21 day statutory timeframe, based on her own research conducted immediately after her employment ended. She had prepared the application but did not file it until 25 April 2019. In her own words, she “struggled with following through” due to:

a) A marriage separation which involved domestic violence;

b) Her mental health and struggle to get out of bed at times; and

c) Insufficient funds to effect filing of the required documents.

[13] Yet she also asserted an “honest belief” that she had filed within the statutory timeframe.

[14] I accept that the Applicant experienced a difficult time. However, on the Applicant’s own evidence she clearly understood the statutory timeframe and was able to prepare her application within the statutory timeframe – she simply did not act to file within that time.

[15] Further, it is noted that:

a) The Applicant did not detail or seek to rely on medical or other objective evidence in support of her reason(s);

b) The suggestion that the filing costs were prohibitive is somewhat inconsistent with the Commission’s records, which show a waiver of the application filing fee; and

c) Even if the Applicant had miscounted the date for lodgement her decision to wait until what she thought was the last date, only to discover that she had erred in calculating the date, does not sufficiently explain the delay. 9

[16] In the circumstances, the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.

Action taken to dispute the dismissal – s.366(2)(b)

[17] In respect of s.366(2)(b) , I am required to take into account any action taken by the Applicant to dispute the dismissal.

[18] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 10 Indeed, direct communication with the employer may be relevant in assessing whether the Applicant displayed an intention to demonstrate that the issues in contest had not reached finality and would be contested in the near future.11

[19] Within a short time after the Applicant’s last day of employment on 3 April 2019, there was a direct exchange of communication between the Applicant and the Respondent. Most pertinently:

•  At 1.07am on 4 April 2019, the Applicant emailed the Respondent. The email stated “I have lodged Protection dismissal today after my meeting with Leeann”.

•  At 9.02am on 4 April 2019, Ms Symeon Leslie (HR Advisor) of the Respondent replied including to state “Thank you for letting me know”. The reply went on to deny the allegations made and request the Applicant to advise a suitable time for a telephone discussion.

•  At 9.16am on 4 April 2019, the Applicant again emailed the Respondent stating “Sorry Sym, I just seen what I accidentally emailed you late last night. My apologies”.

•  At 3.37pm on 4 April 2019, the Respondent replied “Have tried giving you a call a few times today to have a chat regarding your emails.”.

•  At 12.44pm on 5 April 2019, the Applicant replied “I done a lot of research and have also search legal advice and lodge a dispute with the Fair Work Commission” and “I have been treated unfairly as well as discriminated against because I have exercised my work place rights. I’ve also been dismissed unfairly..”. The email also elaborates on these claims, suggests that a future working relationship is “untenable” and concludes with “I await your reply”.

•  At 12.08pm on 11 April 2019, Ms Leslie of the Respondent replied including that “I am sorry you feel that way Michelle, and also disappointed that you have not given me the opportunity to talk this through with you prior to lodging your dispute with the Fair Work Commission… I feel that at this stage rather than going back and forth over emails as it would be more beneficial to wait for instruction from the Fair Work Commission and utilise their assistance in resolving this matter.”.

[20] Notwithstanding that the Applicant’s first email of 4 April 2019 was sought to be retracted and the application was not in fact lodged on 4 or 5 April 2019 as asserted, it is plain that the Respondent understood and was on notice of the Applicant’s intention to dispute her alleged termination before the Commission.

[21] In the circumstances, I find that the Applicant took some action within the meaning of s.366(2)(b). I consider the action taken weighs slightly in favour of a finding of exceptional circumstances in the present case.

Prejudice to the employer – s.366(2)(c)

[22] The Respondent properly accepted that there is no particular prejudice caused by the delay. However, the mere absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional.

[23] I consider this to weigh slightly in favour of a conclusion that there were exceptional circumstances in the present case.

Merits of the application – s.366(2)(d)

[24] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[25] In relation to the substantive claim, the Respondent’s primary position is that the Applicant was not “dismissed” and therefore does not meet a threshold requirement of s.365. It is not disputed that, on 3 April 2019, Ms Leanne Moore of the Respondent met with the Applicant and communicated a decision to extend but not renew the Applicant’s contract of employment. Immediately after that meeting, the Applicant left the workplace and did not return to complete her original contract (which was due to expire on 26 April 2019) nor did she accept the 3 week extension that was on offer.

[26] The Applicant alleges that the Respondent decided not to renew her contract because she had exercised her workplace rights to take personal and annual leave. It is not contentious that the Applicant had taken 5 days’ personal leave, 3 days’ annual leave and 1 unapproved early departure at intermittent intervals during her 5 months’ employment. The Applicant claimed that when she inquired about why the contract would not be renewed, Ms Moore gave oral reasons which included that the Applicant was “a liability” because she had taken personal and annual leave.

[27] The Respondent concedes that Ms Moore raised the need for “reliability”. Specifically, the need to comply with the Respondent’s policies regarding absences and leave. The Respondent maintains that this reminder was justified in the context of the then ongoing employment relationship and the Applicant’s recent disappearance from the workplace without approval.

[28] The Respondent contends that its decision to extend not renew was made for structural and operational reasons and not for any reasons related to the Applicant’s exercise of workplace right(s). Further, the Respondent submits that the very fact of the offer to extend the contract proves that there was nothing unlawful about its motives.

[29] On the materials before the Commission, the Applicant would have difficulty in meeting the thresholds necessary to establish her substantive claim. However, at this preliminary stage and noting the lack of any direct evidence of Ms Moore (the only other witness to the 3 April 2019 discussion), I am not prepared to find the application is totally without merit.

[30] In this case, I consider the merits to be a neutral consideration in weighing whether there are exceptional circumstances.

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

[31] Applications to extend time generally turn on their own facts. The parties did not draw to my attention 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.

[32] I consider this to be a neutral consideration in the present matter.

Conclusion

[33] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[34] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. The lack of an acceptable, credible or reasonable explanation for the delay in filing the application weighs strongly against the grant of an extension in this case. The action taken to dispute the dismissal and the absence of prejudice to the employer weigh slightly in favour of the grant of an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[35] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709689>

Appearances:

M. Larsen on her own behalf.

S. Leslie and K. O’Brien for the Respondent.

Hearing details:

2019

Melbourne (by telephone) and Brisbane (by video).

13 June.

 1   Hewitt v Topero Nominees Pt Ltd[2013] FWCFB 6321 at [50].

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at[12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 4   Ibid.

 5   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 6 Stogiannidis at [39].

 7   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 8   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33];Perry at [23].

 9   Analogous to the circumstances in Jalil v BMD Constructions[2014] FWC 9357 at [8].

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

 11   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].