Miss Judith Anne Hepburn v Eyes Optometrists T/A Eye Like It

[2015] FWC 623

[2015] FWC 623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Miss Judith Anne Hepburn
v
Eyes Optometrists T/A Eye Like It
(C2014/7582)

COMMISSIONER CRIBB MELBOURNE, 23 JANUARY 2015

Application to deal with contraventions involving dismissal - extension of time - application refused.

[1] Ms Judith Hepburn (the Applicant) has made an application, under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a contravention of the general protections provisions of the Act involving a dismissal. Ms Hepburn has been employed by Eyes Like It Pty Ltd T/A Eyes Optometrists South Yarra (the company, the Respondent).

[2] Ms Hepburn was dismissed by the company on 10 October 2014 and made an application to the Commission on 5 November 2014. The company lodged a jurisdictional objection to the application on the grounds that it was lodged outside of the statutory time limit (21 days after the dismissal took effect).

[3] The parties expressed a preference for Ms Hepburn’s extension of time application to be dealt with on the papers rather than by formal hearing. The Respondent filed its written submissions on 24 December 2014 and the Applicant filed her material on 15 January 2015.

[4] This decision deals simply with Ms Hepburn’s extension of time application.

1. The legislative requirements

[5] Section 366 of the Act requires that an application under s.365 be made within 21 days of the date of dismissal although the Commission may allow an extension of that period:

“366 Time for application

(1) An application under section 365 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).

(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.”

[6] Ms Hepburn’s application was lodged on 5 November 2014 which is five days outside the statutory time period.

[7] I will deal with each of the requirements of section 366(2) in turn.

(a) Reason for the delay - s366(2)(a)

Applicant

[8] It was submitted on behalf of Ms Hepburn that the last date for filing her application was 31 October 2014. It was stated that Ms Hepburn posted the application on 29 October 2014 with the expectation that it would have been received on 31 October 2014. 1 It was said that the Applicant could not afford to post the application via Express Post and so sent the application by regular post.2 The two days following 31 October 2014 were the weekend followed by the day before Melbourne Cup Day and then the Melbourne Cup Day holiday. The Applicant, therefore, argued that it appears that the application was delayed by the public holiday period.3

[9] Further, it was contended that the application should be taken to have been filed on 29 October 2014 as this was the date on which it was posted. In the alternative, the application should be taken to have been filed, at the latest, on 31 October 2014 which was the date on which it should have been delivered to the Commission. 4

[10] However, if the Commission did not accept this submission, it was submitted that the reason for the delay was a delay on behalf of Australia Post following a delay created by the Melbourne Cup Day public holiday, both of which are outside the applicant’s control. The Commission was referred to the decision in Johnson v Joy Manufacturing Co Pty Ltd 5 which was said to have found that exceptional circumstances existed where a bona fide attempt, to file an application through the website within time, was unsuccessful for reasons beyond the understanding of the applicant and despite the fact that the applicant might have used another method which could have been effective, possibly within time, but certainly before the filing by post.6

Respondent

[11] The Respondent argued that it appears that the Applicant prepared the application on time but failed to lodge it within the statutory time limit. It was submitted that any reason provided by the Applicant for the delay must be limited to the time it took the Applicant to lodge the application after preparing the form and supporting material, namely, the period between 29 October 2014 and 5 November 2014. The respondent contended that the reason for the delay must be a situation which is out of the ordinary course, unusual, special or uncommon. It was stated, therefore, that it could not be forgetfulness, ignorance of the statutory time limit or some other assumption by the applicant. 7

(b) Action taken to dispute the dismissal - s366 (2)(b)

Applicant

[12] It was submitted that Ms Hepburn took action to dispute the dismissal within the 21 day timeframe. 8

Respondent

[13] The Respondent submitted that there was no action by Ms Hepburn to dispute the dismissal other than through the lodging of the application. 9

(c) Prejudice to the employer - s366(2)(c)

Applicant

[14] The Applicant contended that the employer must produce evidence to demonstrate that they would suffer prejudice if the Commission granted an extension of time. It was argued that the delay of 4 days in lodging the application would not result in the Respondent suffering any prejudice beyond being required to respond to the application. The reasons, submitted by the Respondent, as to why they would suffer prejudice were said to result in no special prejudice. 10

Respondent

[15] It was submitted by the Respondent that it will suffer further prejudice if an extension of time is granted. This was because: the Applicant was or should have been aware of the statutory time limit; Ms Hepburn took no action to dispute the dismissal prior to lodging the application; the application has no merit and the Respondent has incurred considerable expense in instructing its representatives to respond to the application, making the jurisdictional objection and preparing submissions. 11

(d) Merits of the application - s366(2)(d)

Applicant

[16] It was argued that the Applicant’s claim is a highly meritorious and should be considered by the Commission as favouring the granting of an extension of time. The Applicant submitted that the onus of proof is with the Respondent in that it is presumed that the Respondent took adverse action against Ms Hepburn because of her workplace rights and/or temporary absence, unless the Respondent proves otherwise. 12

[17] The Applicant contended that the Respondent took adverse action when she exercised, or proposed to exercise, one or more of her workplace rights by: taking paid personal leave on various occasions prior to May 2014; proposing to take further personal leave (for surgery) but subsequently agreeing to take unpaid personal leave from 14 July 2014 to 11 August 2014 and on 3 October 2014 and making an enquiry, on 7 October 2014, about the fraudulent procedure used to process a transaction. 13 A detailed chronology of the facts, from the Applicant’s perspective, was set out in the written submissions.14 There is no necessity for them to be repeated separately in this decision. However, account has been taken of them in reaching a conclusion in this matter.

[18] In support of this submission, it was argued that the Respondent did not provide Ms Hepburn with prior warning of the alleged performance concerns or with the reason for her dismissal. In addition, there was said to be close temporal proximity between Ms Hepburn’s personal leave on 3 October 2014, her enquiry regarding the fraudulent transactions and her dismissal. 15

[19] In the alternative, it was contended that Ms Hepburn was dismissed due to a temporary absence from work due to illness or injury which occurred from 14 July 2014 to 11 August 2014 and on 3 August 2014. Ms Hepburn was said to have provided the Respondent with a medical certificate dated 29 July 2014, certifying that she was unable to attend for work for two weeks. In addition, it was stated that Ms Hepburn had provided medical certificates on each of the other occasions that she took personal leave. 16

Respondent

[20] It was contended that the application is without merit for the following reasons:

• Ms Hepburn was dismissed for performance reasons, in accordance with the Small Business Fair Dismissal Code, and not because of her absence from work for ankle surgery in July 2014. 17



• Ms Hepburn was not disciplined for taking leave for the ankle surgery. The alleged link between the ankle surgery and the dismissal in October 2014 was said to be so remote in time such that the allegation would hold no, or very limited weight. 18

(e) Fairness as between the person and other persons in a like position - s366(2)(e)

Applicant

[21] It was contended that the grant an extension of time would not cause unfairness to those in a similar position to Ms Hepburn. 19

Are there exceptional circumstances?

Applicant

It was submitted by the Applicant that all of the circumstances of this matter amount to exceptional circumstances as defined by a Full bench of the Commission in Nulty v Blue Star Group Pty Ltd. 20

[22] In relation to the case of Knezevic v CSL Behring T/A CSL Limited, (Knezevic)  21 it was argued that it is not factually applicable to Ms Hepburn’s circumstances. Therefore, the two cases can be distinguished.22

Respondent

[23] The Commission was referred to the decision in Knezevic in support of the Respondent’s contention that there are no exceptional circumstances in this matter. This was said to have been on the basis that, in Knezevic, the applicant’s submissions did not provide a reason why the application was made out of time, there was no evidence that the applicant questioned the dismissal and the application was found to have had no reasonable prospect of success. 23

2. Considerations and Conclusions

[24] Having considered carefully all of the material before me, I make the following findings in relation to the criteria set out in section 366 (2) (a) to (e):

• - reason for the delay

[25] The proposition was put, on behalf of Ms Hepburn, that the application should be taken to have been filed on 29 October 2014 (the date it was posted) or on 31 October 2014, which was the date on which it should have been delivered to the Commission. The grounds for this proposal were that, as the application was posted on 29 October 2014, but not received by the Commission until 5 November 2014, it had been delayed by the public holiday period.

[26] In the alternative, it was submitted by the Applicant that the reason for the delay was a delay on the part of Australia Post following a delay created by the Melbourne Cup public holiday. As these delays were outside Ms Hepburn’s control, an extension of time should be granted.

[27] I have not been persuaded that the application should be considered as having been filed on 29 October 2014 or on 31 October 2014. Section 366 (1) (a) of the Act requires that an application be “made” within the statutory time period. The term “made” refers to an application been lodged or filed with the Commission. The posting of an application or the anticipated delivery date of an application, to the Commission, logically, does not fit within the meaning of “made”.

[28] An alternative argument was also put, that the reason for the delay in filing the application was the combined effect of a delivery delay by Australia Post and a delay due to the public holiday (Melbourne Cup). These were said to be matters outside Ms Hepburn’s control which justify an extension of time.

[29] I have considered both of the authorities which the parties directed my attention to - Knezevic and Cheyne Leanne Nulty v Blue Star Group Pty Ltd. In terms of the factual matrix in this case, a more relevant decision is that of SDP Richards in Mr Christopher Robert Smith v KJM Contractors Pty Ltd (Smith) 24. In this decision, SDP Richards made some observations about public holidays and the statutory time limit. It should be noted that, at that time, the statutory time limit was 14 days and the issue was the Christmas holiday period and not Melbourne Cup Day. In addition, the case was in relation to an unfair dismissal application. However, the first criterion under section 394 (3) of the Act is in the same terms as section 366 (2) (a).

[30] SDP Richards comments were as follows:

“Despite the fact that difficulties may arise in relation to the Christmas period, the Christmas public holidays are a known event on the calendar. They do not represent an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of an application. They are predictable and known events on the calendar, much as any other holiday period, in fact if not more notorious than that.

The Fair Work Act 2009 makes no provision for offsetting the 14 day period within which an application must be made for weekends or public holidays. That is, the Fair Work Act requires an application to be made within 14 calendar days, and the calendar days are counted regardless of the day of the week on which they fall, be it a Saturday, a Sunday, a public holiday, at Easter, on an Anzac Day, at Christmas and so on.

The Fair Work Act does not discriminate in relation to any of those days in so far as it requires 14 days within which to make an application. Applicants face a requirement therefore to make an application within 14 days regardless of where public holidays and weekends [might] fall, and this includes the Easter period as well.

It appears to me that the Fair Work Act 2009 places an obligation on employees to make an application aware of, or being cognisant of, the 14 day calendar period, irrespective of intervening public holidays or weekends, which may of course affect access to professional advice, as well as generating other circumstances.” 25

[31] Ms Hepburn’s application needed to be made by Friday, 31 October 2014. The application was posted on Wednesday, 29 October 2014. It is not known whether the application was posted before or after 6pm on that day. Monday, 3 November 2014 was not a public holiday but the following day, Tuesday 4 November 2014, was Melbourne Cup Day. The application was not received by the Commission until the day after the public holiday, namely, Wednesday, 5 November 2014.

[32] Leaving aside any possible delays by Australia Post due to the public holiday, the applicant did not, in my view, leave sufficient time between posting the application and its receipt by the Commission to ensure that it was received within time. Account should have been taken, by the Applicant, of possible delays by Australia Post and any possible delays because of the public holiday, in order to lodge the application on time.

On this basis, I have not been persuaded that the Applicant took sufficient steps, which were within her control, to make sure that, once posted, the application was received by the Commission within the statutory timeframe. There is no evidence before me that would provide a reasonable explanation for why the application could not have been posted at a time, which took into account potential delivery delays, so that it arrived on time. Therefore, this criterion weighs against the granting of an extension of time.

• - any action taken to dispute the dismissal

[33] Ms Hepburn took no other action to dispute her dismissal, other than to lodge this application. This criterion weighs against granting an extension of time.

• - prejudice to the employer

[34] There is no additional prejudice to the company other than the usual prejudice which accompanies the granting of an extension of time. This criterion will be assessed as neutral.

• - merits of the application

[35] The Commission has before it two different versions of the same set of events, with conflict between the parties, regarding a number of the key facts. As the factual disputes between the parties have not been tested, I am unable to make an assessment of the merits. This criterion is assessed as neutral.

• - fairness with others

[36] As this criterion is not particularly relevant in this matter, it is assessed as neutral.

Exceptional circumstances

[37] As set out in section 366(2) of the Act, for an extension of time application to be granted, the Commission has to be satisfied that there are ‘exceptional circumstances’, taking into account all of the considerations set out in section 366 (2) e.g. reason for the delay, prejudice to the employer etc.

[38] The meaning of “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia (now the Fair Work Commission). A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  26 summarised various decisions which had dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“[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.” 27

[39] I respectfully adopt this approach.

[40] On the basis of the findings, as set out in paragraphs 24 - 37 above, in relation to the criteria in section 366 (2) of the Act, on balance, I am not satisfied that the situation amounts to “exceptional circumstances”. On the one hand, the reasons given for the delay in lodging the application were not accepted as reasonable. This is because Ms Hepburn did not allow sufficient time between posting the application and its due date for receipt by the Commission which took account of possible delays by Australia Post and the Melbourne Cup public holiday. There is also no evidence before me which suggests that Ms Hepburn was unable to post the application earlier then two days before it was due. Further, the criterion in relation to disputing the dismissal does not favour the granting of an extension of time.

[41] On the other hand, the criterion regarding the merit of the application is neutral as is the criterion in relation to prejudice to the employer.

[42] Taken together, the situation does not, in my view, amount to one which is “out of the ordinary course, unusual, special or uncommon.”

[43] Accordingly, as the Commission is not satisfied that there are “exceptional circumstances” which warrant the exercise of discretion, Ms Hepburn’s application for an extension of time is not granted.

[44] Therefore, the application is dismissed. An order to this effect will be issued separately.

 1   Applicant's outline of submissions, dated 29 December 2014 at paragraphs 32 – 33

 2   Ibid at paragraph 30

 3   Ibid at paragraphs 32 – 33

 4   Ibid at paragraph 34

 5   [2010] FWA 1394

 6   Ibid at paragraphs 35 and 38 – 39

 7   Respondent's Written Submissions, dated 24 December 2014, at paragraphs 4.4 - 4.6

 8   Applicant's Outline of Submissions, dated 29 December 2014, at paragraph 41

 9   Respondent's Written Submissions, dated 24 December 2014, at paragraph 4.7

 10   Ibid at paragraphs 42 – 46

 11   Respondent's Written Submissions, dated 24 December 2014, at paragraph 4.8

 12   Applicant's Outline of Submissions, dated 29 December 2014, at paragraphs 48 and 56

 13   Ibid at paragraphs 50-53

 14   Ibid at paragraphs 1-29

 15   Ibid at paragraph 57

 16   Ibid at paragraphs 54 – 55

 17   Respondent's Written Submissions, dated 24 December 2014, at paragraphs 4.8 (c) and 4.10(a)

 18   Ibid at 4.10(b)

 19   Applicant's Outline of Submissions, dated 29 December 2014, at paragraphs 60 – 61

 20   [2011] FWAFB 975 and Applicant's Outline of Submissions, dated 29 December 2014, at paragraph 36

 21   [2014] FWC 3424

 22   Ibid at paragraph 59

 23   Respondent's Written Submissions, dated 24 December 2014, at paragraph 4.11

 24   [2010] FWA 5515

 25   Ibid at paragraphs 17-20

 26   [2011] FWAFB 975

 27   Ibid at paragraph 13

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