Miss Renee Solomon v Orbost Authorised Newsagency T/A Orbost News

[2015] FWC 5198

[2015] FWC 5198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Miss Renee Solomon
v
Orbost Authorised Newsagency T/A Orbost News
(C2015/2491)

COMMISSIONER GREGORY MELBOURNE, 28 AUGUST 2015

Application for extension of time.

Introduction

[1] Ms Renee Solomon was first employed by Orbost Authorised Newsagency T/A Orbost News (“Orbost News”) in March 2013 and worked as a retail assistant. However, her employment ended on 16 March 2015 when she apparently signed a resignation letter after discussions involving a burglary, which occurred at the Newsagency eight days earlier. Ms Solomon submits she had little choice at the time, but to sign the letter.

[2] Ms Solomon then proceeded to make application under s.365 of the Fair Work Act 2009 (Cth) (“the Act”) alleging contraventions under ss.343 and 351. However, her application was not lodged with the Commission until 13 April 2015, 28 days after her last day at work and seven days after the 21 day time limit set by the Act. She now seeks to have the Commission exercise its discretion to extend time in which to make application. This decision deals with that application.

[3] The hearing was conducted by way of telephone. Ms Solomon appeared on her own behalf. Ms S. Fitzgerald of Counsel was granted permission to appear on behalf of Orbost News under s.596(2)(b) on the basis that her involvement would enable it to be represented more effectively.

The Issue to be Determined

[4] Section 366 of the Act states that 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).” 1

[5] Section 366(2) continues to provide a discretion to the Commission to extend the time to make application if it “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.” 2

[6] Therefore, are there “exceptional circumstances” existing in this matter, taking into account the considerations contained in s.366(2), to warrant the Commission exercising its discretion to extend time for Ms Solomon to make application?

The Evidence and Submissions

[7] Both parties provided written submissions in accordance with directions issued. Further oral submissions were made during the hearing.

[8] Ms Solomon said she was called into a meeting on 16 March 2015 with her employer, Mr Peter Kurrle. Two other family members who worked in the business were also present. Ms Solomon said it was implied in those discussions she had been in some way involved or connected with a robbery that occurred at the premises eight days previously. It was also suggested the keys to the premises she had been provided with were used in the robbery. Ms Solomon said she denied any involvement and was only aware it had occurred when she arrived at work the following morning. She also said she had not been interviewed or charged by the police in regard to the matter.

[9] She said Mr Kurrle told her she had two options. She could sign a letter of resignation that had been prepared, or her employment would be terminated. Ms Solomon said she was confused and uncertain about what to do, but signed the ‘piece of paper’ despite not being provided with an opportunity to read the document. She also said she has not at any stage been provided with a copy of the document. Her evidence is that she was effectively told to resign, even though she did not want to, but felt she had no other option given the pressure placed on her at the time. 3 She also says she has not been provided with a separation certificate, and claims accrued holiday pay entitlements are owed to her.

[10] Ms Solomon said she then made contact some days later with the Fair Work Commission to enquire about the options that might be available to her. She says she was told “to try and sort out the matter first, before I lodged it, just to try and work out – try and do it myself.” 4 She said she then spoke to Jessica Kurrle at Orbost News on two separate occasions to see if anything could be done, but was told to direct her enquiries to Peter Kurrle. She later went back to the Newsagency to try and speak with Mr Kurrle, but was told not to return to the shop as she had been “banned”.5

[11] She then forwarded a letter to Mr Kurrle, but said she has not to date received any response.

[12] Orbost News opposes the application for an extension of time and submits the reason for the delay in making application has not been adequately explained. It submits the evidence indicates Ms Solomon made contact with the Fair Work Commission to obtain advice about her options and would have been made aware in those discussions about the appropriate timeframe in which to make application. It also submits Ms Solomon’s general protections application is “wholly without merit”. 6

[13] It continues to submit the subsequent attempts to make contact with her former Employer do not provide an explanation for the delay in making application and she simply “lost track of time.” It continues to submit:

“In this case it appears that the Applicant did not file an application within the statutory time limit because she lost track of time. This is supported by the contents of the Applicant’s Form F8, which incorrectly states that the application was made within 21 days of her dismissal, and does not provide an explanation for the fact that her application was in fact filed 28 days after her alleged dismissal, or resignation. Delay on account of ignorance of the time limit does not constitute exceptional circumstances.2 Delay on account of losing track of time is equally unexceptional in this context.” 7

[14] Orbost News relies on the Full Bench decision in Nulty v Blue Star Group 8(“Nulty”) in support of its submissions. It also makes reference to the decision in Ozsoy v Monstamac Industries Pty Ltd9 and submits it concluded that even a single day delay was not excusable in a situation where it found there were no “exceptional circumstances” existing to explain the delay in making application.

[15] Orbost News also submits that a resignation or the fact of termination from employment is not included within the definition of a “workplace right” under the relevant provisions in the Fair Work Act, and Ms Solomon’s claim of coercion under s.343 is therefore without merit. It also submits the basis upon which she claims to have been discriminated against is not an attribute included in the context of s.351, and this claim is also “doomed to fail.” 10

Consideration

[16] As indicated at the outset, s.366(2) sets out the various considerations the Commission is required to take into account in dealing with Ms Solomon’s application for an exercise of the discretion to extend time in which to make application. The question of what constitutes “exceptional circumstances” has also been considered in previous decisions of this Tribunal, including in the decision of Nulty, referred to in the submissionsprovided by Orbost News. The Full Bench in that mattercame to the following conclusion about what is required to constitute “exceptional circumstances” when it 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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 11

[17] In summary, the decision makes clear that to establish the existence of “exceptional circumstances” requires something out of the ordinary or unusual, and such circumstances might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter by reference to these considerations and the various matters in s.366(2) I must take account of.

(a) The reason for the delay

[18] Ms Solomon relies on two matters, in particular, to explain the delay in making application. Her evidence is that after her employment at Orbost News came to an end she contacted the Fair Work Commission, some days later, to explore what options might be available to her. She appears to have taken two things, in particular, from those discussions in the context of this application. Firstly, her evidence indicates she understood that the Commission suggested to her she should first try and resolve the matter herself in direct discussions with her former employer. It appears this might relate to the issues Ms Solomon has identified in regard to the claimed non-payment of her accrued entitlements and the provision of a separation certificate. In any case she did make attempts to approach her former employer, but without success.

[19] She also appears to have gained an understanding in her discussions with the Commission that any application was required to be made within 21 days of the date of termination. However, she appears to be of the view that the 21 day time period was calculated by reference to “working days” only, and that days falling at the weekend or on public holidays are not to be included in this calculation. Unfortunately for Ms Solomon this understanding is not correct.

[20] In dealing with these explanations I am satisfied, firstly, that the evidence does not disclose that Ms Solomon has been misled or provided with incorrect information in her discussions with the Commission, which occurred some days after her final day at work at Orbost News. I am also aware that the Commission staff who provide information and assistance are only all too well aware of the requisite timeframes for making application, and are at pains to make this clear in response to enquiries received.

[21] Secondly, it appears the delay in making application was essentially due to Ms Solomon’s ignorance and lack of understanding about the law, and the statutory framework governing applications made under s.365. This is not to make or imply any criticism of her. It is by no means uncommon for employees who have been dismissed from their employment to be unaware of the remedies that might be open to them, and the timeframes associated with these options. However, it appears that when Ms Solomon sought to obtain information about these options she did not gain a clear understanding of what is involved, particularly in terms of how the 21 day period is calculated.

[22] As the decision in Nulty makes clear “mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” 12 Therefore, Ms Solomon’s lack of understanding or misunderstanding about the relevant legislative provisions might explain her delay in making application. However, I am not satisfied that it establishes there were “exceptional circumstances” existing as a reason for that failure.

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

[23] Ms Solomon is clearly unhappy about the circumstances surrounding the end of her employment at Orbost News after she had been employed for a period of just on two years. She took issue with the reasons put forward for that decision and believed she has been unfairly targeted. She is also concerned that she has not received the accrued entitlements she claims are owed to her.

[24] She did make contact with the Fair Work Commission to obtain advice and information about the options that might be available to her and then attempted, on more than one occasion, including in a letter sent on 23 March, to make contact directly with her former employer. She also indicated in this correspondence that she intended to take the matter to the Fair Work Commission if it was not otherwise resolved. She then lodged the present application.

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

[25] Neither party made submissions about this consideration and it does not appear to be of any particular consequence in the circumstances involved in this matter. However, there will always be some prejudice to an employer if an Applicant is provided with additional time in which to make application, given that the employer will then be required to prepare its response.

(d) The merits of the application

[26] Ms Solomon did not go into any detail about the particular merits of her application, and how it might be pursued under the provisions contained in s.365 of the Act in the circumstances involved in this matter. In some respects it appears her application is more in the nature of an unfair dismissal claim, rather than a general protections application. She also has concerns to do with non-payment of what she understands to be her accrued entitlements.

[27] It also appears she may have signed a letter of resignation on her final day of work, although her evidence is that she believed she was left with little choice and, in any case, did not properly understand what the document was she was given. In addition, it appears she was not provided with an opportunity to read the document before she signed it, and was then not provided with a copy to take away. However, if Ms Solomon has signed a letter of resignation then this raises a further issue in the context of an application under s.365 in that she will be required to establish the existence of a circumstance involving constructive dismissal before her application can proceed any further.

[28] As indicated, Orbost News submits Ms Solomon’s general protections claims are without merit on both the stated grounds of “coercion” and “discrimination” referred to in her application. It also submits it had reasonable grounds for bringing her employment to an end.

[29] The relevance of the issue of “merit” when determining an application for an extension of time was considered by a Full Bench of the former Australian Industrial Relations Commission in the matter of Kyvelos v Champion Socks Pty Ltd 13(“Kyvelos”) when dealing with similar legislative provisions to those in the Fair Work Act. The Full Bench stated:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 14

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 15

[30] As indicated, it is not possible to form a concluded view about the respective merits of the present application, based on the limited submissions and evidence now before the Commission. However, the decision in Kyvelos makes clear it is not necessary to do so at this point.

(e) Fairness as between the employee and other employees in a similar position

[31] Ms Solomon submits she was only one of several employees who had access to keys to the premises, and there were also multiple keys hanging in the “safe room.” She accordingly takes issue with the fact she appears to have been singled out and targeted following the incident that occurred previously at the premises.

Conclusion

[32] It is clear that Ms Solomon is concerned and upset about the circumstances surrounding the end of her employment at Orbost News after more than two years working for the business. She believes she has been unfairly targeted in regard to an earlier incident that occurred. She also does not believe she was treated fairly in the discussions that occurred following the incident. She also believes she has not received various accrued entitlements owed to her.

[33] However, the Parliament has established a timeframe in which it is normally expected applications under s.365 are to be made. It has also provided the Commission with a discretion to extend that timeframe, but only when there are “exceptional circumstances” existing to warrant an exercise of that discretion. While the delay in this matter only involves eight days this is not the principal consideration. The key issue is whether “exceptional circumstances” are found to be the reason for the delay. For all of the reasons indicated I am not satisfied those circumstances can be found to exist in the context of this matter. I therefore do not propose to extend the time in which to make application. The application is dismissed.

COMMISSIONER

Appearances:

Ms Solomon appeared on her own behalf.

Ms Fitzgerald of Counsel appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne (by telephone):

12 June.

 1   Fair Work Act 2009 (Cth) at s.366(1)

 2 Ibid at s.366(2)

 3   Applicant’s Outline of Argument: objections at 1b

 4   Above n.iii at 1d

 5   Ibid

 6   Respondent’s written submissions at para 1

 7   Ibid at para 9

 8   [2011] FWAFB 975

 9   [2014] FWC 479

 10   Above vi at para 16

 11   Above n.viii at para 13 to 14

 12   Ibid at para 14

 13   Dec 1294/00 M Print T2421

 14   Ibid at para 14

 15   Ibid

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