Miss Angela Tomaras v Thomas and Naaz Pty Ltd T/A Windsor Family Practice

[2014] FWC 1927

[2014] FWC 1927

FAIR WORK COMMISSION

DECISION

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

Miss Angela Tomaras
v
Thomas and Naaz Pty Ltd T/A Windsor Family Practice
(U2013/15952)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 APRIL 2014

Jurisdictional objection - extension of time

[1] Ms Tomaris seeks an extension of time for lodgement of her application made pursuant to section 394 of the Fair Work Act 2009 (the Act). I heard this application on 14 February 2014. The application was lodged 10 days outside the time limit for lodgement.

[2] The applicant provided a written submission 1 which is summarised below. The respondent did not appear on 14 February 2014 because of a mistaken understanding as to the purpose of the hearing and how to proceed. The respondent was given an opportunity to provide a written submission which it did on 7 March 2014. All material provided by the respondent was provided to the applicant for her response. Ms Tomaris provided a written response which was received on 31 March 2014.

[3] By way of explanation for the late lodgement of her application Ms Tomaris relied on the following factors:

● The absence of legal representation. Ms Tomaris was unrepresented, but had the assistance of her union helpline for a phone consultation.

● A lack of direct Internet access.

● The financial stress of the termination of employment because of her obligations as a single parent at that time.

● The delay she experienced in receiving benefits arising from the respondent’s delay in providing a separation certificate.

● Various complications arising from her complaints to the police in the two days following her dismissal.

● Difficulties with depression and anxiety. In relation to this depression and anxiety, Ms Tomaris provided evidence of psychological therapy. She supplied a medical certificate from a psychologist who was treating her pursuant to the Victim Services Scheme. That certificate stated that Ms Tomaris was unaware of the time limit in relation to her unfair dismissal claim and confirmed that she was stressed and upset. It stated "Her aim was to get well so that she could move on with everyday needs for herself and her family."

[4] The relevant legislative framework for the exercise of the discretion of the Fair Work Commission (FWC) in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(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 similar position.”

[5] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 2Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”3

[6] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 4 In Maan v Minister for Immigration and Citizenship5 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])’” 6

(my emphasis)

[7] I have adopted this approach.

[8] Ms Tomaris became aware of her dismissal on the date of its effect.

[9] Ms Tomaris immediately disputed her dismissal.

[10] There is no significant prejudice the employer caused by this delay except the obligation to answer an application which is lodged outside the statutory time limit.

[11] I am not in a position to assess the merits of this application and therefore cannot determine that the application is without merit.

[12] There is no issue of fairness between Ms Tomaris and any other person in a similar position.

[13] The explanation for late lodgement provided by Ms Tomaris in conjunction with my consideration of the other criteria does not persuade me that an exception to the time limit for lodgement of this application ought to be granted.

[14] I am not persuaded on balance that there is any reason, after giving consideration to all criteria, to extend the time for lodgement because of exceptional circumstances.

[15] The application for an extension of time is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Tomaris 1

 2 [2003] FCAFC 256.

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 4   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 5 [2009] FCAFC 150

 6   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

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