Miss Ellen Ryan v TSA T/A TSA

[2018] FWC 6782

[2018] FWC 6782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Miss Ellen Ryan
v
TSA T/A TSA
(U2018/9109)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 1 NOVEMBER 2018

Application for an unfair dismissal remedy – extension of time required – non responsive applicant - no exceptional circumstances – application dismissed

[1] These are the written reasons for the decision I made on transcript during proceedings on 1 November 2018.

[2] Ms Ellen Ryan has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by the TSA Group (TSA or ‘the employer’).

[3] By response dated 26 September 2018 TSA oppose the application and Ms Ryan’s application for an extension of time.

[4] Ms Ryan’s application was filed with the Commission on 5 September 2018.

[5] The FW Act requires applications of this type to be filed within 21 days of a dismissal taking effect. The application made by Ms Ryan is twenty-four (24) days out of time. It can only proceed if an extension of time is granted. Ms Ryan seeks an extension of time.

[6] It is common ground that Ms Ryan was dismissed on 23 July 2018 with the dismissal taking effect that day.

Non Responsive Applicant

[7] Ms Ryan was directed by the Commission on two separate occasions (2 October 2018 and after a hearing on 24 October 2018) to lodge materials in support of her request for an extension of time. Materials were required to be filed by 12 October 2018 and then by 26 October 2018.

[8] Despite having been reminded to do so by email communications by my Associate on 11 October, 15 October and 25 October 2018, Ms Ryan has failed to lodge such materials by the due date or at all.

[9] I conducted a hearing of the extension of time issue on 24 October 2018 and on 1 November 2018. Ms Ryan appeared on 24 October. She failed to appear on 1 November.

[10] At the hearing on 24 October 2018 Ms Ryan claimed that she had not received the multiple communications which had been sent by the Commission advising of the 2 October 2018 directions and the Notice of Listing, despite them having been sent to the email address provided by Ms Ryan in her application. Ms Ryan told me that her email address had been playing up, and that she had only been receiving ‘spam’. Ms Ryan provided me with an alternate email address.

[11] Irrespective of the validity of Ms Ryan’s explanation about the non-receipt of email communication (which has not been supported by evidence I requested and which I consider far from convincing) I note that the Commission’s correspondence of 2 October 2018 was also sent by registered post to the address provided by Ms Ryan in her application. Yet Ms Ryan asserted on 24 October 2018 that she had received no such correspondence.

[12] My further directions of 24 October 2018 granting Ms Ryan an extension to submit her materials by 26 October 2018 were also sent to Ms Ryan by registered post and by email to the two email addresses provided by Ms Ryan to the Commission. Consistent with my request that Ms Ryan confirm receipt of materials sent on the revised email address, on 24 October 2018 at 10.35am Ms Ryan emailed my Associate acknowledging receipt of those materials. Those materials included my further directions of 24 October 2018 and a Notice of Listing dated 24 October 2018 for a hearing at 2.15pm on 1 November 2018.

Hearing 1 November 2018

[13] I am fully satisfied that Ms Ryan is and was aware in good time of the 1 November 2018 hearing date. Not only did she acknowledge by her email of 24 October 2018 that she had received the same, but she was also present at the hearing on 24 October when I advised that this would be the date and time of the resumed hearing.

[14] This notwithstanding, Ms Ryan did not attend the 1 November 2018 hearing (which as notified was also conducted by telephone).

[15] In advance of the time of the scheduled hearing (2.15pm) my Associate made two telephone calls to Ms Ryan on the number she was responsive to on 24 October. On both occasions the calls were not answered and went to voicemail. An urgent voicemail message was left for Ms Ryan advising that she was due to participate in a hearing at that time. Ms Ryan did not respond to the voicemail, either in advance of the hearing commencing (at 2.21pm) or during the hearing (which concluded at 2.43pm).

[16] The employer appeared at both the hearing on 24 October and at the hearing on 1 November.

[17] An audio record of the hearing was taken.

[18] At the hearing on 1 November 2018 I advised that I was satisfied that Ms Ryan had been provided notice of the hearing and had been unresponsive to the directions for the filing of materials. I advised that, subject to any contrary view, it was my intention to deal with the application for an extension of time on the papers based on the content of Ms Ryan’s application and the employer’s response, and any further submissions made at the hearing. The employer did not demur.

[19] I referenced Ms Ryan’s explanation for the delay by reference to paragraph 1.5 of her application. I referenced the employer’s submission in reply by reference to paragraph 2.2 of its response. The employer elected not to make further oral submissions.

[20] I then proceeded to determine the matter. I concluded that no evidence was before me enabling findings of fact that could constitute exceptional circumstances warranting an extension of time. I also concluded that on the face of the assertions made by Ms Ryan, in the absence of evidence, the reasons stated did not constitute exceptional circumstances. I ordered that the application be dismissed. I indicated that I would publish written reasons for decision and make them available to the parties, which I now do.

Consideration

[21] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the 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.”

[22] Ms Ryan’s application can only proceed to determination on the merits if she can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[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.”

[23] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[24] Ms Ryan advances the following reasons for the delay:

“It was not until seeking a second professional opinion, learning about my rights as an employee and revisiting the situation that I have realised the severity in how poorly a company in which I worked diligently for 18 months for, has treated me. Being dismissed suddenly has not only affected my mental well being but also my financial state. I truly believe that both lower and senior level management at TSA Telco Group need to be held accountable for the unfair dismissal I was put on the spot to agree to. I understand that I am outside the 21 days, however I fell into a deep depression post being terminated and was mentally incapable of gaining compensation / a second opinion in what happened.” 2

[25] Despite having the opportunity to do so, Ms Ryan provided no evidence from a treating medial practitioner about her mental or physical state during any period between the date of her dismissal and filing her application.

[26] It is well established that an applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time. 3

[27] It is also well established that an applicant for an extension of time seeking to rely on medical circumstances as a reason for delay has an obligation to not only adduce such evidence but for that medical evidence to establish a sufficient connection between that person’s health and well-being and their capacity or incapacity to file proceedings. 4

[28] Ms Ryan has done neither.

[29] In these circumstances I have no evidence before me to find that Ms Ryan’s mental or physical state was an acceptable reason for delay.

[30] As to the assertion that Ms Ryan waited until seeking a “second professional opinion” about her rights and “revisiting the situation” I have no evidence before me of who provided that second opinion, when it was provided, how it differed (if at all) from the first opinion, who provided the first opinion and when the “revisiting” occurred.

[31] It is well established that a dismissed employee has an obligation to inform themselves of their rights should they wish to challenge their dismissal, and carries the risk that delay in doing so will render their application beyond the statutory time limit. It is not an exceptional circumstance that an employee changes their mind about whether they should or will lodge proceedings. It is well established that a statutory time limit has been imposed for good reason and must be complied with unless the circumstances, objectively assessed, are exceptional. 5

[32] Ms Ryan has not provided a valid reason for any part of the delay, nor the delay as a whole.

[33] This is a factor that weighs against granting an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[34] Ms Ryan’s application indicates that she was aware that her dismissal took effect on 23 July 2018. As noted, this was common ground between the parties.

[35] This is a factor that weighs against granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[36] There is no evidence before me that between 23 July 2018 and prior to filing proceedings in the Commission on 5 September 2018 that Ms Ryan took steps to contest her dismissal or put her former employer on notice that a legal challenge to her dismissal was in contemplation.

[37] This is a factor that weighs against granting an extension.

Prejudice to the employer (section 394(3)(d))

[38] TSA assert that it will be prejudiced should an extension of time be granted. TSA led no evidence of particular prejudice. It referred in its response to prejudice that generally applies when applications are lodged late.

[39] While a late lodgement of over three weeks is double the statutory time limit, and whilst the longer the period of lateness the greater the likelihood of prejudice to the employer and the recollection of potential witnesses, I am not satisfied that TSA will incur any particular prejudice should an extension of time be granted, beyond the cost and trouble of defending an application.

[40] However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 6

[41] On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[42] Ms Ryan’s application asserts that her dismissal for misconduct was unfair in that she disputes the reasonableness of the decision and the adequacy of the training provided to her. TSA assert that she had been rude and aggressive towards an internal customer, and its decision was well-founded and proportionate.

[43] I have not heard evidence on these competing contentions. I am thus unable to draw any conclusion about the merits of the application.

[44] On the facts in this case, I consider this to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[45] No evidence or submissions from Ms Ryan or TSA raise issues of fairness with and between other persons.

[46] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[47] The delay in lodgement is significant. It is double the statutory time limit which has been imposed by the parliament for clearly expressed policy reasons.

[48] Ms Ryan has been an unresponsive applicant, save her attendance at the hearing on 24 October and her email acknowledgement that same day. She has failed to file materials in support of her application, as directed.

[49] In considering whether exceptional circumstances exist, the conduct of Ms Ryan after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional. 7

[50] The apparent reasons for delay are unconvincing. They do not adequately explain the delay or periods of the delay.

[51] Weighing the other factors, none lead me to conclude that the circumstances in this matter are exceptional.

[52] Ms Ryan has not demonstrated that exceptional circumstances exist so as to warrant an extension of time.

[53] For these reasons, Ms Ryan’s application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Accordingly, her application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

E. Ryan, on her own behalf (24 October 2018); no appearance (1 November 2018)

J. Foo and Z. Peggs, for the Respondent

Hearing details:

2018.

Adelaide.

1 November.

Printed by authority of the Commonwealth Government Printer

<PR702008>

 1   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 2   Paragraph 1.5 of Ms Ryan’s application dated 5 September 2018

 3   Carlene Daphne Smith v Canning Division of General Practice[2009] AIRC 959

 4   Nicole Pearson v Roberts Limited[2015] FWC 6905

 5   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

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

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288