Miss Kaylah Breeze v Jusenjo Pty Ltd ATF the Houston Investment Trust T/A the Cut Ahead

[2014] FWC 8511

[2014] FWC 8511

FAIR WORK COMMISSION

DECISION

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

Miss Kaylah Breeze
v
Jusenjo Pty Ltd ATF the Houston Investment Trust T/A The Cut Ahead
(U2014/5649)

DEPUTY PRESIDENT ASBURY BRISBANE, 27 NOVEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

Overview

[1] Ms Kaylah Anne Breeze applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of her employment by Jusenjo Pty Ltd ATF the Houston Investment Trust t/as The Cut Ahead (The Cut Ahead). Ms Breeze states in her Form F2 Application for an unfair dismissal remedy that she was notified of her dismissal on 10 January 2014 and that she received a Separation Certificate in mid-February that was dated 5 February 2014. Ms Breeze further states that she was unsure of the date her dismissal took effect, but as requested, did not return to work after 10 January 2014. The application was made on 18 March 2014.

[2] By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). If it is accepted that Ms Breeze’s dismissal took effect on 5 February 2014, the application was made 20 days outside the time required in s.394(2) of the Act. If it is accepted that the dismissal took effect on 10 January 2014, the application was made 46 days outside the time required. Regardless of the date upon which the dismissal took effect, it is necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) 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) 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Ms Breeze to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Both parties have filed and served material including submissions and witness statements. Neither party has indicated that it wishes to cross-examine any person who has made a statement. Accordingly, I have determined this matter on the basis of the material on the file.

Consideration

[6] The explanation for the delay in making the application as set out by Ms Breeze in her Form F2 Application is as follows:

“I contacted Department of Education and Training as I am an apprentice it was a requirement to finalize paperwork, due to non-compliance or cooperation from my employee this took some time. They then contacted the Employee (sic) on my behalf on several occasions to obtain a Separation Certificate.

I had rung fair work and was told I needed my separation certificate to apply for unfair dismissal, I did not receive a separation certificate within 21 days of dismissal therefore was unable to submit an application.

I then obtained advice from my lawyer who said as we were outside the allocated time that I approach the Fair Work Ombudsman. I submitted a request as advised on 20/2/2014; I received a call from the Ombudsman 2 weeks after my submission. After speaking with the fair work ombudsman, and him reviewing my information, he advised me to make an application and request an exemption from this as it is under exceptional circumstances.”

[7] In a statement filed in support of an extension of time to make her application being granted, Ms Breeze asserts that although her termination was dated 10 January 2014, she received training separation documentation dated 5 February 2014 several days after that date. Ms Breeze also asserts that the documentation was received by her several days after 5 February 2014 and that further delay was caused by the fact that it was addressed to her care of her parents’ address, despite the fact that her address was known to her former employer.

[8] Ms Breeze said that she was unwilling to accept the training separation documents because the reason for dismissal stated in them was untrue. Ms Breeze also said that there was “confusion around the process” because there was a training contract completion in place, but her employment had been terminated. Ms Breeze disagreed with the reasons expressed in the separation certificate and in the documentation relating to the cancellation of her training contract.

[9] Ms Breeze attached documentation to her statement including correspondence sent by her on 31 January 2014, to a Senior Field Officer of the Department of Education, Training and Employment (DETE), stating that she had received a show cause letter on 10 January 2014 sent to her in line with an earlier discussion, and accepted that she would no longer be working for “The Cut Ahead”. The letter states that Ms Breeze has requested leave details and a separation certificate and has not received that documentation. Ms Breeze also attached the second page of a letter from the Senior Field Officer dated 20 January 2014 stating that there are no longer any employment arrangements to support the existence of the training contract. Further, Ms Breeze tendered a “Show Cause Notice” dated 5 February 2014 proposing to cancel the registration of her training contract, and setting out the following facts:

● On 10 January 2014 an application was received from the employer requesting that the contract be cancelled and stating that Ms Breeze’s employment had been terminated effective on that date; and
● The Senior Field Officer had been telephoned by Ms Breeze on 10 January 2014 requesting that she attend a meeting at the salon during which it was confirmed that Ms Breeze’s employment had been terminated.

[10] Ms Breeze also tendered an information notice from DETE dated 5 Februay 2014, informing her that a decision had been made to cancel her training contract on the basis that her employment had been terminated on 10 January 2014 on the basis that no information as to why the contract should not be cancelled had been provided by Ms Breeze and there were no longer any employment arrangements to support the existence of the training contract. Also tendered was a separation certificate dated 5 February 2014 stating that Ms Breeze’s employment ceased on 10 January 2014.

[11] Ms Breeze said that after receiving the separation certificate she met with her solicitor who told her that she was too late to file an unfair dismissal application but that she should do so and seek an extension of time.

[12] The Cut Ahead filed submissions essentially asserting that Ms Breeze became aware of her termination on 10 January 2014 and that the termination took effect on that date. It was also submitted that Ms Breeze took advice from “Fair Work” and also from a lawyer, although these steps were taken too late. Further, Ms Breeze was not suffering from a disability or otherwise that would have prevented her from making the application and that she was aware of her dismissal and could have and should have acted promptly, but failed to do so.

[13] The Cut Ahead also submitted that advice she was given that requiring a separation certificate to apply for unfair dismissal, was misguided.

Conclusion

[14] I am unable to accept that there are exceptional circumstances in this case that would justify the exercise of the discretion to extend the time for Ms Breeze to make her application. The evidence provided by Ms Breeze does not establish that she was confused about the date upon which her employment ceased. It is clear from Ms Breeze’s own statement that she knew that her employment ceased on 10 January 2014 and that this possibility was discussed with her prior to that date. There is also insufficient evidence upon which I could be satisfied that Ms Breeze was given incorrect advice by “Fair Work”.

[15] Even if I accept that Ms Breeze was confused, or that she was misinformed that she could not make an unfair dismissal application until she received a separation certificate, on her own evidence she had received this document and a notice informing her that her training contract was cancelled, on or around 7 February 2014. Ms Breeze did not file her application until 18 March 2014 and provided no explanation for this delay.

[16] Other than corresponding with a Senior Field Officer from DETE, there is no evidence that Ms Breeze contested her dismissal. There is also no evidence of prejudice to the employer caused by the delay other than that the employer will be required to defend the application if time is extended. The parties are in dispute about the facts that lead to the dismissal and there is no basis for finding that the merits of the application are a factor weighing in favour of an extension of time.

[17] To grant an extension of time in the circumstances of this case would be unfair to other applicants who have been denied an extension, given the absence of exceptional circumstances.

[18] Ms Breeze’s application for an unfair dismissal remedy U2014/5649 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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