Miss Adi Burogolevu v Lismore Central Chempro Chemist

[2018] FWC 6087

[2018] FWC 6087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Adi Burogolevu
v
Lismore Central Chempro Chemist
(U2018/7811)

COMMISSIONER SAUNDERS NEWCASTLE, 28 SEPTEMBER 2018

Unfair dismissal – application filed out of time – no exceptional circumstances – application dismissed.

[1] On 29 July 2018, Ms Adi Emele Burogolevu lodged an application pursuant to s 394 of the Fair Work Act 2009 (Act) alleging that her dismissal with Lismore Central Chempro Chemist (Respondent) on 7 July 2018 was harsh, unjust and unreasonable (Application).

[2] Section 394 of the Act provides that a person who has been dismissed and who alleges their dismissal was harsh, unjust or unreasonable must make any unfair dismissal application to the Fair Work Commission (Commission) 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

Hearing

[3] A hearing by telephone in relation to Ms Burogolevu’s application for an extension of time was conducted on 27 September 2018. Ms Burogolevu gave evidence in support of her application. Mr Maitland-Smith gave evidence in support of the Respondent’s case. In deciding the application for an extension of time, I have had regard to the evidence adduced by Ms Burogolevu and Mr Maitland Smith, together with the documents provided by Ms Burogolevu to the Commission and the submissions made by each party.

Legislative Scheme

[4] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make a unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect and

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

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

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

[5] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.

[6] 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. 3 In that matter the Full Bench held as follows 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.”

Consideration

Reasons for delay – s 366(2)(a)

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[8] 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. 6 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,7the Full Bench explained (at [31]) the correct approach 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.”

[9] 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 correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 8

“[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.
…
[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.”

[10] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 9

Relevant chronology of events and reasons for delay

[11] There is no dispute between the parties, and I am satisfied on the evidence, that Ms Burogolevu’s employment with the Respondent came to an end on 7 July 2018.

[12] The 21 day time period for Ms Burogolevu to make her Application expired on 28 July 2018. Given that Ms Burogolevu filed her Application on 29 July 2018, the Application was filed one day late.

[13] In accordance with the principles summarised in paragraph [7] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 28 July 2018 to 29 July 2018. However, the circumstances from the time of the dismissal on 7 July 2018 must be considered when assessing whether there is credible explanation for the delay, or any part of the delay, beyond the 21 day period.

[14] Ms Burogolevu gave the following reasons for the delay in filing her Application:

(a) Ms Burogolevu is the carer for one of her housemates, Mr Michael Wittle, who has suffered a number of health and cognitive difficulties including a seizure attack in about the week before her dismissal on 7 July 2018. In the period from 7 July 2018 to 29 July 2018, Ms Burogolevu provided a range of assistance and support to Mr Wittle, including by taking him to all his medical appointments and other appointments with organisations such as job agencies and Centrelink. It was necessary for Ms Burogolevu to attend those appointments with Mr Wittle because he needed assistance in communicating effectively with such organisations and Mr Wittle did not have any other carers or support he could rely on;

(b) Ms Burogolevu is, and was in the period from 7 to 29 July 2018, in a relationship with a person who has an intellectual disability and a number of other health related issues. In the period from 7 to 29 July 2018, Ms Burogolevu provided a range of help and support to that person, including by helping him find a job, attending appointments with him, accepting phone calls on his behalf, and assisting him with forms and paperwork;

(c) Ms Burogolevu had a lot going on in her personal life in the period from 7 to 29 July 2018;

(d) Ms Burogolevu does not live with any other members of her family, but she provides, and provided in the period from 7 to 29 July 2018, financial and other support to her family;

(e) Ms Burogolevu suffers from anxiety and depression. The medical evidence tendered by Ms Burogolevu shows that on 28 June 2018 she obtained treatment for her mental health related issues, including the stress associated with her issues at work. Ms Burogolevu says that she did not leave her house for about a month after her dismissal, other than to take Mr Whittle or the person with whom she was in a relationship to an appointment or other event; and

(f) Ms Burogolevu was under financial stress in the period from 7 to 29 July 2018, partly because she was dismissed by the Respondent and also because there was a delay by the Respondent in providing her with a separation certificate, which delayed her receipt of relevant social security payments.

[15] I am not satisfied that Ms Burogolevu has provided a credible explanation for the delay in filing her Application. Although I accept that Ms Burogolevu was very busy and had a lot on her plate in the period from 7 to 29 July 2018, it is relevant that she had the capacity to, and did, provide a significant amount of assistance to others in that period of time. In my view, the fact that Ms Burogolevu provided assistance to Mr Wittle, the person she was in a relationship with and her family members in the period from 7 to 29 July 2018, demonstrates that she could have taken the time to prepare and file her Application within the 21 day period provided for in the Act despite the personal, health and financial issues that she was experiencing in that period. In particular, the fact that Ms Burogolevu assisted the person she was in a relationship with forms and paperwork during this period shows that she could have done the same for herself. On that basis, I am not satisfied that Ms Burogolevu provided a credible explanation for the whole of the delay in filing her Application. On balance, I find that this factor (s 394(3)(a)) weighs against a finding of exceptional circumstances and granting Ms Burogolevu an extension of time.

Whether the person first became aware of the dismissal after it had taken effect – s 394(3)(b)

[16] On about 27 June 2018, Ms Burogolevu was given written notice of the termination of her employment. She is, and was at the time, aware that her employment with the Respondent came to an end on 7 July 2018. Accordingly, Ms Burogolevu did not first become aware of her dismissal after it had taken effect. I therefore find that this factor (s 394(3)(b)) is neutral in my consideration of whether there are exceptional circumstances and whether I should grant Ms Burogolevu an extension of time.

Any action taken by the person to dispute the dismissal – s 394(3)(c)

[17] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 10

[18] Ms Burogolevu spoke to a number of people about her dismissal, including a social worker. I also accept that after her dismissal Ms Burogolevu went to her workplace and spoke to Mr Maitland-Smith about the reason for her dismissal. By doing so, Ms Burogolevu took action to dispute her dismissal and this factor (s 394(3)(c)) weighs in favour of a finding of exceptional circumstances and granting Ms Burogolevu an extension of time.

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

[19] Prejudice to the employer will weigh against granting an extension of time. 11 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.12 The employer must produce evidence to demonstrate prejudice. A long delay gives rise “to a general presumption of prejudice”.13

[20] The period of the delay in this matter was one day. No evidence was adduced by the Respondent in this case to demonstrate prejudice.

[21] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. The absence of prejudice is a factor which weighs in favour of a finding of exceptional circumstances. 14

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

[22] The letter of termination provided to Ms Burogolevu refers to a downturn in sales and a need to minimise wages and cut costs as the reason why Ms Burogolevu’s role was no longer available. Ms Burogolevu challenges the notion of a genuine redundancy and points to other casual employees being engaged by the Respondent at about the time of her dismissal.

[23] The Respondent also relies on allegations of theft and repeated late attendances at work as valid reasons for Ms Burogolevu’s dismissal.

[24] The resolution of the key contested questions concerning the reasons for the termination of Ms Burogolevu’s employment will only be able to be determined after a full hearing on the merits. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not there are exceptional circumstances and whether I should extend time for the Application to be made.

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

[25] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said (at [41]): 15

“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.”

[26] I am not satisfied that the issue of fairness as between Ms Burogolevu and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[27] Having considered all the circumstances and taken into account the matters referred to in s 394(3)(a) to (f) of the Act, I am not satisfied that there are exceptional circumstances such as to allow a further period for the Application to be made. In particular, although the factors under s 394(3)(c) and (d) weigh in favour of a finding of exceptional circumstances, they are outweighed, in my view, by the absence of a credible explanation for the delay (s 394(3)(a)). The balance of the factors under s 394(3) of the Act are neutral.

[28] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms Burogolevu, on behalf of herself

Mr Maitland Smith, on behalf of the Respondent

Hearing details:

2018.

Newcastle:

27 September.

Printed by authority of the Commonwealth Government Printer

<PR700932>

 1   Section 394(2)(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 394(3) of the Act

 3   [2011] FWAFB 975

 4   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 5   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 6   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]

 7   [2016] FWCFB 349

 8   [2018] FWCFB 3288 at [35]-[45]

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 11   Ibid.

 12   Ibid.

 13   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 14   Long v Keolis Downer[2018] FWCFB 4109 at [66]

 15   [2016] FWCFB 6963