Miss Jena Richings v Ali Family Investments T/A San Churro Epping

[2017] FWC 4196

[2017] FWC 4196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Miss Jena Richings
v
Ali Family Investments T/A San Churro Epping
(C2017/3911)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 11 AUGUST 2017

Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.

[1] On 17 July 2017 Miss Jena Richings (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the FW Act). The Respondent to the application is Ali Family Investments t/a San Churro Epping (Respondent) (San Churro Epping).

[2] Miss Richings named the Respondent to this application as ‘San Churros’. The Respondent submitted that the correct name of the entity should be Ali Family Investments t/a San Churro Epping. Miss Richings did not dispute this submission.

[3] On the evidence before me, I am satisfied that the name of the Respondent in this matter is Ali Family Investments t/a San Churro Epping. I have utilised the discretion in s.586 of the Act to amend this application accordingly.

[4] Miss Richings commenced employment with San Churro Epping on 16 May 2017. She says that she was dismissed on 20 June 2017 and the dismissal took effect on that day.

[5] The application therefore was lodged 6 days out of time.

[6] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[7] Miss Richings submits that she was dismissed for no reason, that she had done nothing wrong and that her dismissal was due to work progression. 1 A breach of s.340, s.344 and s.351 are alleged.

Respondent’s Submissions

[8] San Churro Epping submits that Miss Richings was dismissed due to her poor work ethic, customer complaints 2 and due to the lack of progress she had made despite numerous interactions with their management team to discuss areas which she could improve.3

Legislative scheme

[9] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) 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 (2).

[10] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 4where the Full Bench said:

“[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.”

[Endnotes not reproduced]

[12] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[13] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 5

[14] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 6 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[15] On 19 July 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 10 August 2017.

[16] Miss Richings was self-represented. Mr Mohammad Ali appeared on behalf of San Churro Epping and was also self-represented.

Matters to be taken into account pursuant to s.366(2)

[17] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[18] Miss Richings submitted that her application was lodged late as she was in the middle of moving house. 7 She submitted that she filled out the Form F8C (the application form) within 21 days, however misplaced it during the move and subsequently filed the application out of time.8

[19] Miss Richings further submitted that her application had been lodged out of time as she had no money. 9 However, once the application was lodged by Miss Richings, she made a successful application to have the Commission’s filing fee waived.

[20] Miss Richings’ oral evidence was that she had contacted the Commission and was aware of the requirement for her to file her application within 21 days.

[21] Miss Richings gave evidence that she had initially attended the library to obtain a copy of the application form, however upon misplacing it she did not return to the library to obtain a second copy because she was moving house and had an order to vacate.

[22] Miss Richings also gave evidence that she has trouble filling applications out online and for that reason she did not complete an online application. She had tried to do an online application for housing some months ago and found it difficult. Should this have been the case, it was open to Miss Richings to make her application with the Commission over the telephone, by attending the Commission offices or with the assistance of a library. I am not satisfied that this provides for exceptional circumstances as it is clear from her submissions filed with the Commission that Miss Richings can use a computer and has demonstrated that she is capable of completing the application.

[23] Whilst I empathise with Miss Richings’ current circumstances, her evidence clearly indicates she was aware of the requirement to lodge the application within 21 days and that she was able to make an application to have the filing fee waived, as she subsequently has done. Therefore I am not satisfied that Miss Richings has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[24] 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

[25] Miss Richings submitted that she disputed the dismissal by asking the Respondent why she was being dismissed as she didn’t feel as though she had done anything wrong. 11

[26] San Churro Epping submits that Miss Richings took no steps to dispute the dismissal with them. 12

[27] I am not satisfied that the action taken by Miss Richings to dispute her dismissal favours the granting of an extension of time. This factor weighs against granting a further period for Miss Richings to lodge her application.

(c) Prejudice to the employer (including prejudice caused by the delay)

[28] Prejudice to the employer will go against the granting of an extension of time. 13 San Churro Epping did not submit that there was any prejudice to it if an extension of time were granted.14

[29] Miss Richings submitted that she did not think the lateness of the application had caused San Churro Epping any prejudice. 15

[30] I consider this criterion to be a neutral consideration.

(d) Merits of the application

[31] Miss Richings submitted that she had been dismissed for no reason and that she believed her dismissal to be unfair. 16 Other than raising this issue, the Applicant’s submissions and evidence did not identify a workplace right she had, or had exercised, or had proposed to exercise which is relevant to the application.

[32] Miss Richings’ application alleged breaches of sections 340, 344 and 351 of the Act, however when given the opportunity to do so she did not provide any submissions in support of this allegation.

[33] Miss Richings submitted that her employer was disrespectful to her and other staff, and that he would eat her food, talk down to her in front of customers and referred to the baristas as ‘his bitches’. 17 San Churro Epping denied these allegations.18

[34] She further submitted that employees were not provided with sufficient notice of their rostered hours, with rosters being released the night before employees were expected to work, and that there was a problem with her first pay as her employer had not provided her details to the payroll team. The Applicant submitted that she tried to voice her opinions regarding this, however believed her employer ‘didn’t care’. 19

[35] San Churro Epping submitted that Miss Richings, as with other staff, was engaged as a casual. As such, I note that there is no requirement for San Churro Epping to have provided Miss Richings with set rostered hours in advance of the time she was being offered her shift.

[36] San Churro Epping submitted that Miss Richings was within her three month probationary period and was provided with various training opportunities, however was dismissed due to the minimal progression she had made. 20

[37] San Churro Epping also submitted that the Applicant had a poor work ethic and spent most of her time conversing with other employees without completing an acceptable amount of work. 21

[38] Miss Richings gave evidence that she had spoken to the Commission to seek advice regarding an application for relief from unfair dismissal, however as she had not been employed for the minimum employment period as defined in section 383 of the FW Act she had been referred to the General Protections application. Miss Richings completed the application form for this reason alone.

[39] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 22 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.23 However in the current circumstances it was clear from the Applicant’s evidence that she had made this application as she had not met the minimum employment period required under the FW Act and therefore was not a person protected from unfair dismissal. The Applicant did not provide any submission or evidence that would have satisfied me that there was any merit to her application. Accordingly I find this criterion weighs against granting a further period for the Applicant to lodge her application.

(e) Fairness as between the person and other persons in a like position

[40] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 24 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion to be neutral.

Conclusion

[41] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances”, while not specifically defined in the Act, has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[42] A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 25

[43] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[44] An order 26 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

J. Richings, Applicant;

M. Ali, Respondent.

Hearing details:

2017

10 August (Telephone hearing).

 1   Applicant’s Form F8

 2   Respondent’s Form F8A

 3   Exhibit R1

 4   [2011] FWAFB 975.

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 6   [2016] FWCFB 349

 7   Applicant’s Form F8

 8   Exhibit A2

 9   Exhibit A1

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

 11   Exhibit A2

 12   Exhibit R1

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 14   Exhibit R1

 15   Exhibit A2

 16   Exhibit A2

 17   Applicant’s Form F8

 18   Respondent’s Form F8A

 19   Applicant’s Form F8

 20   Exhibit R1

 21   Respondent’s Form F8A

 22   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 23   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 24   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 25   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 26   PR595287

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