Miss Shannon Armanasco v Golden Phan Chinese Restaurant and Seafood Takeaway T/A Golden Lor
[2018] FWC 7619
•14 DECEMBER 2018
| [2018] FWC 7619 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Shannon Armanasco
v
Golden Phan Chinese Restaurant and Seafood Takeaway T/A Golden Lor
(U2018/10369)
| Commissioner Johns | MELBOURNE, 14 DECEMBER 2018 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is about whether the Commission should allow Shannon Armanasco (Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 9 October 2018, that being 28 days after her employment ended with Golden Phan Chinese Restaurant and Seafood Takeaway (trading as Golden Lor) (Respondent) on 11 September 2018 and, consequently, 7 days after the 21 day time limit provided for in the FW Act. To be within time the application should have been lodged on or before 2 October 2018.
When the Applicant filed her application she contended that it was filed within the 21 day timeframe. The application was dated 16 September 2018 (i.e. within the 21 day timeframe), but not lodged until 9 October 2018 (i.e. outside the 21 day timeframe). I deal with the reason for the delay below.
The jurisdictional objection
On 18 October 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
On 20 November 2018 Deputy President Dean wrote to the Applicant seeking an explanation for the delay. The Deputy President reiterated the request on 28 November 2018.
On 29 November 2018 the Applicant sent an email to the Commission. She wrote,
“I am sorry about my late response, my phones been going haywire. But zero excuse. I’m not entirely sure why any of my forms were late as I thought I had put them in at the right time.”
It was a refreshingly honest admission from an Applicant.
The matter was then allocated to me and on 29 November 2018. I issued Directions for the parties to file and serve any material they sought to rely upon and invited them to address each subsection in section 394(3) of the FW Act. Neither party filed any additional material.
The matter was listed for hearing on 5 December 2018. At the hearing the Applicant represented herself and was assisted by her mother. The Respondent was represented by its Manager, Ven Pham.
Legislative scheme
Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) 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 similar position.
Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[3] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
“[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.” [4]
Facts leading up to and relating to the dismissal
Based on the material filed in the matter and the evidence received on 7 December 2018 I make the following findings of fact:
a) The Applicant commenced work with the Respondent in around April 2017. The Respondent contends that the
i.employment ceased in December 2017 (i.e. there was a break in service),
ii.in March 2018 the Applicant contacted the Respondent to be re-employed,
iii.the employment relationship recommenced on 25 April 2018 (i.e. just under 5 months before the cessation of the relationship).
b) The Respondent is a small business. If the Respondent is correct about the chronology above, then the Applicant does not meet the minimum employment period.
c) The Applicant was paid $14,400.
d) The Applicant, as she was entitled to do, raised a dispute with the Respondent about her pay and non-payment of superannuation. The Respondent says any issues with the Applicant’s pay or superannuation was because the Applicant had not provided the Respondent with her tax file number.
e) The Respondent contends the Applicant was unreliable. The Applicant denies the contention.
f) On 11 September 2018 the working relationship ended. The Respondent contends there was no dismissal. More likely than not. The Respondent had cut the Applicant’s hours. It seems, more likely than not, that it was the action of the employer than led to the dismissal.
g) On 16 September 2018 the Applicant completed an application for an unfair dismissal remedy.
h) The time for lodging an UFD application within time expired on 2 October 2018.
i) On 9 October 2018 the Applicant lodged the present application (i.e. it was 7 days late).
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
It is undisputable that there were 28 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.
At the hearing before me the reason for the delay became apparent; the Applicant had given her application to her mother to file on her behalf and, because of other issues concerning her mother, the application was filed late.
It is easy to see where the Applicant gets her honesty from; Mrs Armanasco was equally honest in taking the blame for the delay. In the hearing before me she said,
“That would be my fault. This is the mother. I forgot to post it.”[5]
And further that,
“At the time, I was back and forwards from the hospital with my father with cancer treatment and Shannon had given it to me and I, yes, with everything going on I, honestly, I completely forgot all about it. It sat in my car and, yes, Shannon said to me "Oh, have you posted it yet, mum?" and I went "Shannon, that was sort of the last thing on my mind", so, yes, I do apologise for that. That was my fault, because I had a lot of other things on my mind at the time.”[6]
Unfortunately for the Applicant the reason for the delay is not out of the ordinary course, or unusual, or special, or uncommon. Rather, in entrusting the filing to another person, it is regularly, or routinely, or normally encountered that the person so entrusted does not do what has been asked of them. In short, the Applicant should not have relied upon her mother to file the application for her.
Therefore this factor weighs against of granting the Applicant a further period to make her application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that the Applicant first became aware of the dismissal on 11 September 2018.
Therefore this factor weighs against of granting the Applicant a further period to make her application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
The Applicant says she tried to talk to Ms Pham about the dismissal. However, other than lodge this application late the Applicant took no other substantive action to dispute the dismissal.
The lack of action taken by the Applicant weighs against granting her a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
The Respondent did not assert any exceptional prejudice.
The prejudice asserted by the Respondent weighs as a neutral consideration in relation to granting the Applicant a further period to make her application.
Paragraph 394(3)(e) - The merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[7] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[8]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
The substantive factual contest between the Applicant and the Respondent is whether there was a dismissal. There is also a contest about whether the Applicant is protected from unfair dismissal having only served nearly 5 months in the most recent period of employment. These are not disputes that can be resolved at a jurisdictional hearing.
For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
If the Applicant can establish to the satisfaction of the Commission that the Respondent did terminate her employment because she raised a dispute about her pay and non-payment of superannuation she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
The Applicant contended that there was unequal treatment of her compared with other employees. The Respondent contended that this factor was not relevant.
Because what the Applicant says requires a detailed consideration of the factual circumstances, and that is not the task of the Commission conducting an extension of time hearing, I have decided to treat this factor as a neutral consideration in relation to granting the Applicant a further period to make her application.
Conclusion
Having considered all of the matters that I am required to consider under section 394(3) of the FW Act, in the exercise of my discretion, for the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).
An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
The Applicant, for herself assisted by her mother, Mrs M Armanasco
Ms V Phan, Manager, for the Respondent
Hearing details:
7 December 2018
<PR703183>
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] [2011] 203 IR 1.
[4] Ibid [13].
[5] Transcript PN18.
[6] Transcript PN22.
[7] PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Ibid.
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