Mrs Kata Stjepic v Boka Aluminium Windows Pty Ltd

[2011] FWA 9011

[2011] FWA 9011

FAIR WORK AUSTRALIA

DECISION

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

Mrs Kata Stjepic
v
Boka Aluminium Windows Pty Ltd
(U2011/11397)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 DECEMBER 2011

Termination of employment - extension of time.

[1] Mrs Stjepic sought an extension of time for lodgement of her application made pursuant to s.394 of the Fair Work Act 2009 (the Act). I heard this application in Sydney on 2 December 2011. Mrs Stjepic was represented by her son. Boka Aluminium Windows Pty Ltd (Boka) was represented by its director Mr Franovic.

[2] Mrs Stjepic’s application was lodged 11 days beyond the statutory time limit.

[3] Following termination of her employment, Mrs Stjepic had a series of unfortunate experiences whilst seeking legal representation. She failed to find anyone with the requisite background or availability until she instructed Mr David Taylor of Turner Freeman, Solicitors, at Parramatta who lodged her application.

[4] On 8 August 2011 whilst at the workplace Mrs Stjepic received a letter of termination of employment.

[5] On the same day Mrs Stjepic consulted a solicitor at Liverpool, Mr Stojanovic. Mr Stojanovic told Mrs Stjepic he did not deal with applications of this kind any more. He gave her the card of another solicitor at Campbelltown.

[6] Two or three days later Mrs Stjepic called the other solicitor in Campbelltown. He also told her his firm were not doing this work anymore. Following this unsuccessful attempt Mrs Stjepic telephoned another solicitor at Burwood. She received the same answer.

[7] Mrs Stjepic then gave her papers to a solicitor named Mr Drajkojako. Mr Drajkojako said he would do the work but wanted to be paid in advance. Mrs Stjepic had no money to pay him. Although Mr Drajkojaka would not act for her, he referred her to Turner Freeman who are solicitors experienced in this field.

[8] Boka’s only submission was that the statutory time limit should be observed.

[9] The relevant legislative framework for the exercise of Fair Work Australia’s (FWA) discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[10] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[11] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[12] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.

[13] I have considered the matters outlined in s. 394 of the Act.

[14] I accept that Mrs Stjepic made a concerted effort to seek a solicitor who would represent her and was experienced in the area of unfair dismissal work. She encountered an exceptional level of difficulty. I do not believe that this difficulty can be attributed to any failing of Mrs Stjepic. I am satisfied that Mrs Stjepic’s difficulty mostly arose from her lack of English and her inexperience in legal matters.

[15] Mrs Stjepic became aware of her dismissal immediately upon its effect

[16] Mrs Stjepic undertook action to dispute her dismissal immediately, but she was foiled in her attempts by her inability to arrange representation.

[17] There is no prejudice to the employer except the ordinary prejudice of having to defend an application.

[18] The merits of the application are a neutral consideration.

[19] There is no issue of fairness between Mrs Stjepic and any other person in a similar position.

[20] Mrs Stjepic’s circumstances are not regularly, routinely and normally encountered.

[21] The application for an extension of time for lodgement of this application is allowed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Stjepic for Mrs Stjepic.

Mr Franovic for Boka Aluminium Windows Pty Ltd

Hearing details:

2011

Sydney

2 December

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   [2010] FWA 1394 [PR994029] - 25 February 2010

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