Miss Rhiannon Matthews v Signarama

[2020] FWC 5021

[2020] FWC 5021

FAIR WORK COMMISSION

DECISION

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

Miss Rhiannon Matthews
v
Signarama
(U2020/11760)

COMMISSIONER CIRKOVIC MELBOURNE, 21 SEPTEMBER 2020

Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed.

Introduction

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 17 September 2020.

[2] Ms Rhiannon Matthews (Applicant) commenced employment with Signarama (Respondent), in or about May 2017. She was employed in the position of Graphic Designer and Printer Operator.

[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). There is no dispute that the application was lodged on 31 August 2020.

[4] The Respondent contends the Applicant was made genuinely redundant and was, in any event, terminated in accordance with the Small Business Dismissal Code.

[5] Application was filed outside the statutory timeframe.

[6] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[7] There is no dispute between the parties that the effective date of termination was 19 June 2020. Based on a termination date taking effect on 19 June 2020, the application for a remedy should have been lodged by no later than 10 July 2020.

[8] The application was therefore lodged outside of the time prescribed. The application was made, in effect, 52 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[9] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to grant a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[10] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay;

•  whether the Applicant first became aware of the dismissal after the date it took effect;

•  any action taken by the Applicant to dispute the dismissal;

•  prejudice to the Respondent including prejudice caused by the delay;

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[11] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[12] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[13] I now consider these matters in the context of the Application.

a) Reason for the delay

[14] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.

[15] In essence, the Applicant cites the following reasons for the delay:

•  She suffered “serious depression since my shock redundancy”; 1

•  She experienced the loss of her grandmother on 31 July 2020 after “weeks of ups and downs” after which she was grieving and planning her funeral; 2 and

•  She found the unfair dismissal process “quite difficult and hard to understand given Covid-19 restrictions closing all government offices leaving me unable to speak to anyone personally about my situation”. 3

[16] The Respondent contends that none of the reasons provided by the Applicant constitute exceptional circumstances within the meaning of the Act.

[17] The Applicant contends that she became aware of the 21-day time limit on or around three weeks from the date of her termination, being 10 July 2020, when she accessed the Commission website. Around the same time, she states that she attended the Bendigo office of the Commission, but it was unattended, and that she called the Commission who referred her to the online application form. She stated at this time she was “very upset and did not want to it come to this”.

[18] The Applicant also cites her grandmother’s illness and her unfortunate passing on 31 July 2020 as a reason for her delay, noting that she was “like a mother” to her. The Applicant states that as a result of this loss, her application for unfair dismissal “went on the back burner”. As to the period from 31 July 2020 to 31 August 2020, the Applicant states that she was going through a period of significant grieving.

[19] The Respondent submits that the Applicant has not provided a credible reason for the delay, in particular it notes that:

•  Between 19 June 2020 and 20 July 2020, the Applicant was able to exchange a series of text messages with Mr Stephen regarding a range of matters including the returning of keys to the Respondent, a reference for the Applicant, obtaining examples of work for the Applicant’s folio and clarifying when certain payments would be made; and

•  Mr Stephen was informed by a number of employees of the Respondent that the Applicant had contacted them seeking information on the status of the Respondent’s business and that one such employee was considering seeking an intervention order against the Applicant.

[20] The Applicant accepts that she sent these text messages but denies that her communications with employees were of the nature that Mr Stephen contends, asserting instead that they were simply communications between friends.

[21] There is no evidence before the Commission as to what the Applicant did or did not say to employees of the Respondent. Nor is there any evidence that an intervention order is being sought against the Applicant. As such, I give this submission no weight in making my decision.

[22] That said, I note that the delay in question is significant. I also note the Applicant’s evidence that in the period after her dismissal she attempted to obtain employment as a graphic designer and attended an interview for a prospective job on or around 24 July 2020. There is also no evidence before the Commission by way of medical reports as to the Applicant’s medical condition. The Applicant accepts she became aware of the 21-day time limit on or around 10 July 2020 and there is no suggestion that she did not have available to her the resources or tools necessary to access the Commission’s website. To the contrary, she did so and spoke to a Commission employee regarding her application on or around 10 July 2020.

[23] I have great sympathy for the Applicant’s loss and the position it has placed her in. However, having regard to the circumstances of this case, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

[24] The Applicant accepted that she was dismissed on 19 June 2020. In the circumstances, this is a neutral consideration.

c) Action taken by the Applicant to dispute their dismissal

[25] Turning next to the question of the action taken by the Applicant to dispute her dismissal. No submissions were made by either party regarding this matter. I note that the Applicant exchanged text messages with the Respondent between 19 June 2020 and 20 July 2020 that appear to, in part, relate to her dismissal. In this matter, I consider this factor to weigh slightly in favour of the Applicant.

d) Prejudice

[26] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent submitted the delay was “long” and that gives rise to a general presumption of prejudice to the Respondent as well as that the Respondent’s resources would be “better spent elsewhere” in the current climate then defending this “spurious application”. 4 The Applicant contends there is no disadvantage to the Respondent.

[27] I cannot identify any particular prejudice that would accrue to the business if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

e) Merits of the application

[28] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

f) Fairness as between the Applicant and other persons in a similar position

[29] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[30] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[31] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[32] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3), except the Applicant’s disputing of her dismissal, weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Ms R. Matthews for herself

Mr C. O’Neil of Mornington Legal for the Respondent

Hearing details:

17 September 2020 (via telephone)

Printed by authority of the Commonwealth Government Printer

<PR722895>

 1   Application dated 31 August 2020.

 2   Email from Applicant dated 14 September 2020.

 3   Email from Applicant dated 14 September 2020.

 4   Respondent’s Outline of Submissions dated 16 September 2020 at [14] – [15].