Miss Maria Mischkulnig v Domain Kirra Beach Pty Ltd t/a Domain Principal

[2013] FWC 9583

[2013] FWC 9583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Miss Maria Mischkulnig
v
Domain Kirra Beach Pty Ltd t/a Domain Principal
(C2013/4772)

DEPUTY PRESIDENT ASBURY BRISBANE, 5 DECEMBER 2013

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

[1] The following decision, now edited, was issued during proceedings on 5 December 2013.

OVERVIEW

[2] Ms Maria Mischkulnig applies under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute in relation to a contravention said to involve her dismissal by Domain Kirra Beach Pty Ltd t/a Domain Principal (Domain). It is not in dispute that Ms Mischkulnig was dismissed on 9 April 2013. Ms Mischkulnig’s application was made on 14 June 2013, 45 days outside the time required in s.366(2) of the Act.

[3] Domain objects to the application on the basis that it was made outside the required time, and contends that it has no reasonable prospects of success and should be dismissed.

[4] This decision concerns the question of whether the Commission should exercise its discretion under s.366(2) of the Act, to extend the time for Ms Mischklunig to make the application.

[5] Outlines of submissions and witness statements were filed by the parties in accordance with Directions and the matter was listed for hearing at the request of Domain on the basis that it wished to cross-examine Ms Mischkulnig in relation to her witness statement.

LEGISLATION AND ISSUES FOR DETERMINATION

[6] By virtue of s.366(1) of the Act an application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). That sub-section provides as follows:

“(2) 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 like position.”

[7] 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

[8] Even when exceptional circumstances are established, the Commission has discretion as to whether time should be extended, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2

[9] The issue for determination is whether Ms Mischkulnig has established that there are exceptional circumstances to trigger the exercise of the discretion to extend time, and whether in all of the circumstances the discretion should be exercised.

CONSIDERATION

Reason for the delay

[10] The reason for the delay is representative error. Evidence was provided by Ms Mischkulnig to the effect that she consulted the Queensland Nurses Union on 9 April 2013, the day she was dismissed and thereafter had contact with Ms Cheri Taylor, an Industrial Officer of the Union by telephone and email. Ms Taylor caused an application under s.773 of the Act to be filed in connection with Ms Mischkulnig’s dismissal. That application was filed on 30 April 2013, within the time for making an application under s.365 of the Act.

[11] Ms Taylor gave evidence to the effect that she misunderstood the provisions of the Act with respect to s.773 and was not aware that the application should have been made under s.365 of the Act. Ms Taylor further states that she had not been involved in any general protections applications to the Commission alleging discrimination, prior to 30 April 2013.

[12] The application made under s.773 was listed for conciliation before the Commission as presently constituted, on 11 June 2013. At the conference, I informed Ms Taylor that the application could not be made under s.773, as Domain is a constitutional corporation, and by virtue of s.723 of the Act, an application must not be made under s.773 if it can be made under s.365.

[13] Ms Taylor states that she was not aware of these provisions of the Act until she was informed of them on 11 June 2013. Thereafter, Ms Taylor sought legal advice about the options for either amending the application or making a fresh application and seeking an extension of time. The application under s.365 of the Act was made three days later, on 14 June 2013.

Action taken to dispute the dismissal

[14] Ms Mischkulnig took action to dispute her dismissal by seeking advice from the QNU and giving instructions to Ms Taylor to make an application to the Fair Work Commission on her behalf - albeit that the application was made under the wrong section of the Act.

[15] Notwithstanding that the original application was made under the wrong section of the Act, Domain can have been in no doubt, at least from 30 April 2013, that Ms Mischkulnig disputed her dismissal.

Prejudice to the employer

[16] There is no evidence of prejudice to Domain if an extension of time is granted, other than the prejudice which will flow from having to defend the application. However, Domain will be in the same position of having to defend the application as it would have been in had it been made within the require time.

[17] While absence of prejudice is not determinative of whether time should be extended, it is a factor relevant to the overall consideration of whether the discretion to extend time should be exercised.

The merits of the application

[18] It is not appropriate to embark on a detailed assessment of the substantive case in deciding whether the discretion to extend time should be exercised. In the present case, there are factual contests between the parties about matters such as the inherent requirements of the position, Ms Mischkulnig’s ability to perform the duties which are said to be inherent requirements of her position and the ability of the employer to make certain duties available to her.

[19] In such circumstances I am unable to find that the application is without merit, or that it has no reasonable prospects of success.

Fairness as between Ms Mischkulnig and other persons in a like position

[20] This consideration may relate to fairness in matters currently before the Commission or that have been decided in the past.

[21] In my view, an employee who entrusts an officer or an employee of a Union of which he or she is a member to deal with an issue such as dismissal, has a legitimate and reasonable expectation that any steps to dispute the matter under the Act will be taken in the time and manner required. For an officer or employee of a Union to make an application under the wrong section of the Act is a representative error.

[22] It is generally accepted that representative error in circumstances where the applicant is blameless and has not contributed to the delay by inaction or failure to provide timely instructions to a representative, constitutes exceptional circumstances such that the discretion to extend time is triggered.

[23] Given that there are a number of cases where an extension of time has been granted on this basis, no issue of fairness between Ms Mischkulnig and other persons in a like position arises.

CONCLUSION

[24] In all of the circumstances I am satisfied that there are exceptional circumstances justifying an extension of time for Ms Mischkulnig to make her application under s.365 of the Act, and that the discretion to extend time should be exercised in this case. I extend the time for making the application in C2013/4772 to 14 June 2013. An Order to that effect will issue with this Decision.

[25] I am prepared to conduct a further conciliation conference in relation to this matter if both parties agree to that course. The parties are requested to advise of their position in this regard by 4.00 pm on Monday 9 December 2013. In the event that there is no agreement to further conciliation, a Certificate pursuant to s.369 will issue immediately.

DEPUTY PRESIDENT

Appearances:

Mr K. Crank on behalf of the Applicant.

Ms A. Paterson and Mr K. Jakes on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

December 5.

 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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