Mrs Elishia Parry v Car Rental Holdings Pty Ltd T/A AAA East Coast Car Rentals

[2016] FWC 2599

[2016] FWC 2599

FAIR WORK COMMISSION

DECISION

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

Mrs Elishia Parry
v
Car Rental Holdings Pty Ltd T/A AAA East Coast Car Rentals
(U2016/739)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 27 APRIL 2016

Application for relief from unfair dismissal-extension of time not granted.

[1] Ms Parry alleged the termination of her employment by Car Rental Holdings Pty Ltd T/A AAA East Coast Car Rentals (East Coast Car Rentals) on 20 January 2016 was unfair.

[2] Ms Parry’s unfair dismissal application lodged on 19 February 2016 was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[3] The Respondent did not file a response to Ms Parry’s application.

[4] Ms Parry attended a jurisdictional hearing before me on 18 March 2016 and gave oral evidence on her own behalf in addition to her written submission.

[5] The Respondent did not appear at the hearing.

[6] This decision is about whether the Fair Work Commission (the Commission) should allow Ms Parry a further period for lodgement of her application for an unfair dismissal remedy.

[7] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[8] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” [Endnotes not reproduced]

[9] There was no factual dispute that Ms Parry had filed her application out of time.

s.394(3)(a) the reason for the delay

[10] Ms Parry’s application was filed 30 days after the date of her dismissal. Ms Parry must provide reasons for the delay in making the unfair dismissal application. 2

[11] Ms Parry must provide reasons for the whole of the period that the application was delayed. 3 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.4 The reasons provided must be considered in order to determine whether those reasons constitute exceptional circumstances.

[12] Ms Parry was in India preparing for her wedding at the time she was notified of her dismissal by Facebook messenger on 20 January 2016. 5

[13] Ms Parry says from 20 January 2016 to 2 February 2016, in accordance with Indian customs, there were a number of pre-planned events she was required to attend that impacted on her ability to lodge an application. 6 During the hearing Ms Parry provided the following account of the events she says contributed to the delay in her application and should be considered as exceptional circumstances;

a) on the 25 January 2016 Ms Parry attended a photo shoot from 9:00am to 5:00pm;

b) on 26 January 2016 to 31 January 2016 her days were occupied with visiting relatives, clothing and jewellery shopping for the wedding;

c) on 1 February 2016 Ms Parry attended a temple for a blessing;

d) from 2 to 5 February 2016 the wedding ceremony took place.

[14] Ms Parry submitted that as the time accounted for above was dedicated to her wedding ceremony, she did not have time to turn her mind to preparing or submitting an unfair dismissal application.

[15] Ms Parry submitted as her family had joined her in India for the wedding, from 6 to 11 February 2016, her time was occupied by family commitments and site seeing. Ms Parry says she spent a day in bed resting on 7 February 2016 as she had contracted a bacterial parasite, however she was able to attend a family dinner that evening.

[16] Ms Parry says she did not want to lodge an application whilst in India as she wanted to obtain advice upon her return to Australia. Ms Parry also says she wanted an opportunity to rectify the situation with her employer.

[17] Ms Parry submitted further reasons for her delay being that India was five hours behind Australia and this would have made it difficult to obtain advice. Additionally phone calls were expensive and the internet access and power in the area where she was staying was unreliable.

[18] Ms Parry returned to Australia on 11 February 2016 and from 12 to 14 February 2016 she was still feeling unwell from the bacterial parasite contracted whilst in India. Ms Parry sought further treatment for her illness on 16 February 2016 which required her to miss half a day of University. Ms Parry says these factors also contributed to the delay.

[19] On 12 February 2016 Ms Parry obtained copies of her payslips and made inquiries by email to her former employer querying what Ms Parry alleges to be an underpayment of her entitlements. Ms Parry followed up on those inquiries again on 18 February 2016. 7

[20] Ms Parry is in the final year of her nursing degree. 8 On 19 December 2015 Ms Parry was advised by the University that the dates for commencement of the first term in 2016 had been brought forward, meaning Ms Parry would miss the first three weeks of the semester. Ms Parry says she commenced back at University full time on 15 February 2016, from 8:00am to 4:00pm, after missing three weeks of lectures. Consequently, the increased work load contributed to the delay.

[21] Ms Parry says another reason for her delay was that she did not find out about the 21 day time period within which she was required to make an application until she contacted JobWatch on 16 February 2016. 9 Ms Parry says once she became aware of the delay, she commenced preparing her application, however due to her University commitments the preparation took 3 days.

[22] Ignorance of the statutory time limit was considered in Nulty v Blue Star Group Pty Ltd 10where the Full Bench said:  

“[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.”

[23] Ms Parry’s ignorance of the statutory time limit for making an application is not an exceptional circumstance.

[24] In accordance with the principles summarised in paragraph [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 10 February 2016 to 19 February 2016. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period, and whether that reason constitutes exceptional circumstances.

[25] The relevant time period is particularly important when giving consideration to the exceptional circumstances in this case. Many of the events Ms Parry relies upon in support of her application for an extension of time took place prior to 10 February 2016.

[26] Ms Parry submitted she did not file an application whilst she was overseas as she wanted to seek advice once she returned to Australia. Ms Parry returned to Australia on 11 February 2016, she did not seek advice until 16 February 2016, the day after she commenced back at University.

[27] Whilst I am sympathetic to Ms Parry’s circumstances surrounding her illness, Ms Parry gave evidence that she had suffered the worst of her condition whilst she was in India. The bacterial parasite infection did not prevent her from fulfilling her family commitments whilst in India, nor did it prevent her from attending University upon her return to Australia.

[28] Ms Parry had reasonable advanced notice from the University regarding the change to the semester dates. The increased demand on her as a result of these changes did not inhibit Ms Parry from making inquiries to JobWatch or her former employer regarding what she believed to be an underpayment of her entitlements.

[29] Ms Parry gave evidence that she attended University lectures during the day and prepared her application in the evenings once she became aware of the 21 day requirement for lodging an application. Ms Parry’s application was not significantly voluminous in its content. 11

[30] I accept Ms Parry’s reasoning for why she was unable to lodge an application whilst she was in transit on 10 or 11 February 2016. I am not persuaded that Ms Parry’s reasons for the delay from 12 to 19 February 2016 were unusual, special or uncommon. I am not satisfied that Ms Parry has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[31] Ms Parry was notified of her dismissal by Facebook private messenger whilst she was overseas attending to her wedding on the day it took effect. 12

[32] Ms Parry provided an email address to which the letter confirming her dismissal could be sent. Ms Parry subsequently received an email confirming her dismissal on 24 January 2016. 13

[33] Ms Parry had the full 21 days from the date she became aware of her termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[34] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting and extension of time. 14

[35] Ms Parry says at the time of her dismissal she questioned why the dismissal was occurring and whether she would receive official notification. Ms Parry says during that discussion she made a complaint regarding being advised by Facebook messenger however she did not dispute the dismissal.

[36] Ms Parry contacted her employer by email on 12 and 18 February 2016, to make inquiries as to discrepancies with her termination pay. 15 Ms Parry made a number of attempts to resolve the underpayment dispute however she did not contest the dismissal. MsParry had ongoing discussions with the Manager who notified her of the dismissal from the date of notification to the date of lodgement of her application however she did not contest the dismissal.

[37] Beyond lodging the application, Ms Parry took no other action to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[38] Prejudice to the employer will go against the granting of an extension of time.  There were no submissions made by East Coast Car Rentals. I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[39] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 16 it said:

“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.”

[40] Ms Parry submitted she was dismissed with immediate effect on 20 January 2016. Ms Parry says she received notification of her dismissal from the newly appointed manager by Facebook messenger. She was advised management had made the decision to employ two new full time employees and consequently her employment was to be terminated, effective immediately. 17

[41] Ms Parry says her dismissal was harsh and unjust and there was no valid reason given for her dismissal.

[42] Ms Parry submitted she had only ever received one warning with regards to deficiency in performance in 2015. Ms Parry submitted she had since received positive feedback with regards to her performance. 18

[43] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.  However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 19 for the purpose of determining whether to grant an extension of time to Ms Parry to lodge an application.

[44] I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter, accordingly I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[45] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 20 as follows:

“[29] Turning to the question of fairness as 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 an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[46] There were no submissions that there is, or has been, any persons in a similar position to Ms Parry. I find the criterion to be neutral.

Conclusion

[47] Having considered the matters referred to and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Ms Parry’s application to be made. Ms Parry has not provided reasonable explanation for the whole of the delay. Ms Parry’s application for an extension of time is dismissed and her unfair dismissal application is therefore dismissed.

[48] An order 21 dismissing Ms Parry’s application will accompany this decision.

COMMISSIONER

Appearances:

Ms E Parry on her own behalf.

There was no appearance on behalf of the Respondent.

Hearing details:

2016.

Melbourne.

March 18.

 1   [2011] FWAFB 975.

 2   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-9.

 4   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 5   Exhibit A1.

 6   Ibid.

 7   Exhibit A2.

 8   Exhibit A1.

 9   Ibid.

 10   [2011] FWAFB 975, [14].

 11   Form F2-Unfair Dismissal Application.

 12   Exhibit A1.

 13   Exhibit A2.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 15   Exhibit A2.

 16   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 17   Exhibit A2.

 18   Exhibit A1.

 19   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 20   [2015] FWC 8885, [29].

 21   PR579437.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579436>