Mrs Jeanette Layzell v The Trustee for Venue Cafe Bar - Orange Trust T/A Venue Cafe Orange

[2018] FWC 1615

[2018] FWC 1615

FAIR WORK COMMISSION

DECISION

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

Mrs Jeanette Layzell
v
The Trustee for Venue Cafe Bar - Orange Trust T/A Venue Cafe Orange
(U2017/13225)

COMMISSIONER JOHNS SYDNEY, 19 MARCH 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] 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

[2] This decision is about whether the Commission should allow Jeanette Layzell (Applicant) a further period for lodgement of her application for an unfair dismissal remedy (UFD Application) in circumstances where it was lodged on 13 December 2017, that being:

a) 43 days after when the Applicant says her employment was terminated by The Trustee for Venue Cafe Bar - Orange Trust T/A Venue Cafe Orange (Respondent) on 31 October 2017 and, consequently,

b) 22 days after the 21 day time limit provided for in the FW Act.

[3] In order to be lodged in time the UFD Application should have been lodged by 20 November 2017.

The jurisdictional objection

[4] On 23 January 2018 the Respondent objected to the Commission exercising its jurisdiction to deal with the UFD Application because it was lodged later than the 21 days after the dismissal took effect.

[5] The Respondent also claimed that it did not terminate the Applicant’s employment. It said the Applicant:

a) resigned on 20 July 2017 (with an effective date of 18 August 2017),

b) asked, on 11 August 2017, that her employment be extended until 31 October 2017 (which the Respondent accommodated),

c) ceased employment on 31 October 2017 (when the resignation, that was tendered on 20 July 2017, ultimately took effect).

[6] It is beyond doubt that the Applicant tendered her resignation by email on 20 July 2017. She wrote,

“I wish to submit my resignation as Head Chef of Venue Orange, effective as of 18/8/2017.

I have immensely enjoyed my time working within your business, and my decision to resign is based purely on family reasons.

I hope your business continues to grow and wish you all the best in the future.

Thank you for all your support and help during my time working with you.”

[7] However, there is a dispute between the Applicant and the Respondent about how to characterise the meeting that occurred in October 2017 that ultimately lead to the employment ending on 31 October 2017.

The conduct of the EOT proceeding

[8] Regardless of whether the Applicant resigned or had her employment terminated by the Respondent, the UFD Application was lodged 43 days after when the cessation of employment occurred. Accordingly, it is first necessary to deal with the Applicant’s application for an extension of time to file her UFD Application.

[9] On 1 February 2018 the Commission wrote to the Applicant asking her to explain why her UFD Application was filed late. On 8 February 2018 the Applicant replied. She wrote,

“I contacted Legal Aid after ceasing employment with Venue Café and Bar. I first contacted Legal Aid by phone on the 10th November 2017 and was advised to do an online claim for unfair dismissal via Fair Work Commission. The claim was “sent successfully” online on 10 November 2017, I never received any confirmation that the claim was submitted and received. I did not receive any correspondence or contact from Fair Work Commission in regards to my claim, including not receiving a claim/case number, and on the 22nd November 2017 I contacted Jill Marshall from Legal Aid via email in regards to my next step.

Jill advised that I need to contact Fair Work Commission ASAP to check if they received my application and provided a phone number to call. I then contacted Fair Work Commission within 1 day of this information from Jill. I was advised that I needed to re-submit my application as it was not outside the 21 day requirement for claim submission and ask for exceptional circumstances to be granted due to the fact that was my understanding that the claim had been “sent successfully” online however this is not confirmation provided that it was submitted within the time frame required.

As I have stated above I have not received any correspondence or “bounce back” in relation to this claim nor have I had any other confirmation that Fair Work Commission had received the claim at any time and have been informed by Fair Work that due to this unsubmitted Claim exceptional circumstances may be granted.

I have included emails with Legal Aid in regards to this matter and original claim as evidence that it was originally submitted within 21 days timeframe as required by Fair Work Commission.”

(Formal and irrelevant parts omitted)

[10] On 9 February 2018 the matter was allocated to me. On that day I issued directions for the parties to file and serve any additional material that they sought to rely upon by 16 February 2018. Nothing was filed.

[11] On 19 February 2018 I conducted a hearing by telephone. At the hearing:

a) the Applicant represented herself. She had her uncle, Tony Isbester, attended as a support person, and

b) the Respondent was represented by Mr Ashwin Lyons, its General Manager.

[12] Following the hearing, on 20 February 2018, I issued Directions providing the parties with an additional opportunity to file any final submissions. On:

a) 23 February 2018 the Applicant sent an email with various attachments (including documents requested during the course of the hearing), and

b) 28 February 2018 the Respondent filed its Outline of Final Submissions.

[13] I also asked that, by 5.00 pm on Friday, 2 March 2018, the parties advise my chambers whether they consented to me deciding the matter on the materials then before the Commission. On 2 March 2018 2018 the Respondent consented to that course. On 5 March 2018 the Applicant consented to the same.

[14] In coming to this decision I have had regard to all the material that was filed and the evidence received during the hearing.

Legislative scheme

[15] 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.

[16] 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

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[17] It is undisputable that there were 43 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[18] It is clear from the email that the Applicant received from Legal Aid on 10 November 2017 that she was told that she had 21 days in which to make the UFD Application. The Applicant was told,

“You must lodge the claim within 21 days of the last day of your employment. We recommend that you lodge the claim as soon as possible and not leave it till the last day.”

[19] The 21 day period expired on 20 November 2017.

[20] On 22 November 2017 the Applicant again contacted Legal Aid. She wrote,

“I had submitted my online dismissal but haven’t heard anything back. I am now running out of time if it didn’t go through .. .Just wondering if there is any way you could look into it at all?”

[21] When the Applicant contacted Legal Aid on 22 November 2017, the 21 day period had already expired. Having been told about the 21 day period on 10 November 2017 it is not clear why (on 22 November 2017) the Applicant wrote “I am now running out of time…” She must have known the time period had already expired. Legal Aid advised the Applicant to,

“give the Fair Work Commission a call as soon as possible, to check that they received your application. Their phone number is 02 8374 6666.”

[22] The completed UFD Application was then filed on 13 December 2017. That is a further 21 days after the Applicant was told by Legal Aid to “give the Fair Work Commission a call as soon as possible….”

[23] The Applicant says the reason for the delay was:

a) she had thought she had lodged the UFD Application within time on 10 November 2017.

b) she only discovered that she had not lodge the UFD Application successfully on about 22 November 2017 (when she first contacted Legal Aid and then the Fair Work Commission. She then lodged the present application on 13 December 2017.

[24] Prior to the hearing the Applicant had not provide the Commission with any evidence of her attempted filing on 10 November 2017. At the hearing on 19 February 2018 I asked the applicant if should could provide me with any evidence of her attempted filing. I asked her if, when she registered on the Fair Work Commission site she was given a User ID. I said I would provide her with an opportunity after the hearing to provide me with any further evidence of the attempt made by her to file on 10 November 2017. 5 The Applicant was unable to do so. On 23 February 2018 the Applicant tendered a letter from “Need a Nerd”. In that that letter the company advised that:

a) they had forensically investigated the web browser of the Applicant’s computer.

b) there was no web browser history older than around 16 February 2018.

c) the web history did not include visits to the Fair Work Commission.

[25] In the present matter the Applicant says she attempted to file the UFD Application within time on 10 November 2017. She says she did so online after speaking with Legal Aid. Over the next 12 days the Applicant heard nothing from the Commission. She became concerned. She contacted Legal Aid. They told her to contact the Commission. She did. However, the Applicant then took another 21 days to file the UFD Application.

[26] Knowing that she had 21 days to file an application and knowing that the 21 days expired on 20 November 2017 it remains unexplained why, in circumstances where she had not heard from the Commission following her attempted filing on 10 November 2017, the Applicant did not make any contact with the Commission before 20 November 2017. Why she left it until 22 November 2017 and why she first contacted Legal Aid and not the Commission is unexplained. Also unexplained is why it then took the Applicant a further 21 days to file the UFD Application on 13 December 2017. The only explanation given by the Applicant was that she was “under an enormous amount of stress trying to support her family and everything.” 6 While sympathetic to the situation the Applicant found herself in, there is nothing exceptional about it.

[27] The Applicant knew about the 21 day time limit. Before 20 November 2017 she could have made contact with the Commission to follow up on the UFD Application she thought she had successfully filed. Once she found out on 22 November 2017 that it had not been filed, she could have then promptly filed another. It would then have only been 2 days out of time, not 22.

[28] Therefore this factor weighs against of granting her 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

[29] It is uncontested that the Applicant first became aware of the cessation of her employment on 31 October 2017.

[30] Therefore this factor weighs against of granting her a further period to make her application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[31] The Applicant was clearly concerned about the cessation of her employment. She made contact with Legal Aid. The Applicant says she also attempted to file a UFD Application in time on 10 November 2017. I accepted her at her word. The email exchanges with Legal Aid tend to support her story. In any case, the Applicant did not strike me as the type of person who would make up such a thing.

[32] The action taken by the Applicant weighs in favour of granting her a further period to make her application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[33] On behalf of the Respondent Mr Lyons indicated that other than the usual prejudice associated with delay, the Respondent was not asserting any exceptional prejudice.” 7

[34] The prejudice asserted by the Respondent weighs is 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

[35] In the matter of Kornicki v Telstra-Network Technology Group 8the 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.” 9

[36] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[37] 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.

[38] The substantive factual contest between the Applicant and the Respondent is whether there was a dismissal at the initiative of the employer. During the hearing on 19 February 2017 the Applicant provided a very detailed account of what occurred in her last meeting with Mr Lyons. She said that after the meeting, while in her car, she took down the notes. I asked her to provide me with a copy of them 10 and she did so on 23 February 2018. The notes confirm the Applicant’s evidence.

[39] What occurred at the final meeting between the Applicant and Mr Lyons is not a factual dispute that can be resolved at a jurisdictional hearing. However, I note that in the Employment Separation Certificate the Respondent did not assert that the Applicant ceased work voluntarily, but rather, it indicated that the Applicant was “[unsuitable] for this type of work”. It seems, more likely than not, the termination of the employment relationship was at the initiative of the Respondent.

[40] Consequently, and without deciding the issue, 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.

[41] If the Applicant can establish to the satisfaction of the Commission that at the final meeting Mr Lyons terminated her employment then she may well be able to go on to establish that the termination of his 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.

[42] That the Applicant’s case is not without merit or lacking in any substance weighs in favour of granting her a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[43] The parties made no submissions about this being a relevant factor.

Conclusion

[44] 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 his application).

[45] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Jeanette Layzell for herself.

Ashwin Lyons, General Manager for the Respondent.

Hearing details:

2018

19 February, 2018

Sydney

Printed by authority of the Commonwealth Government Printer

<PR601289>

 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 PN99.

 6   Transcript PN70.

 7   Transcript PN126-128.

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

 9   Ibid.

 10   Transcript PN91.