Mrs Sandra Cenzato-Loveridge v Langs Building Supplies Pty Ltd

[2016] FWC 7281

[2016] FWC 7281

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

s.366 – Extension of time

Mrs Sandra Cenzato-Loveridge
v
Langs Building Supplies Pty Ltd
(C2016/5211)

COMMISSIONER RIORDAN SYDNEY, 21 OCTOBER 2016

Application to deal with contraventions involving dismissal.

[1] This decision relations to a general protections application lodged by Mrs Sandra Cenzato-Loveridge in relation to her termination by Langs Building Supplies Pty Ltd.

[2] The Fair Work Act, 2009 (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect 1. However, the Commission may allow a further period of time for the application to be made if the delay is due to exceptional circumstances.2

[3] Mrs Cenzato-Loveridge was terminated on 24 November 2015. Mrs Cenzato-Loveridge lodged her application with the Commission on 31 August 2016 – some 259 days outside of the statutory timeframe.

[4] A hearing was conducted on 29 September 2016, by telephone, to deal with Mrs Cenzato-Loveridge’s application for an extension of time.

[5] Mrs Cenzato-Loveridge represented herself in these proceedings. Leave was granted for Mr Jacques Franken from Employment Advocacy Solutions Pty Ltd to represent Langs Building Supplies Pty Ltd.

[6] In an ex-tempore decision, I advised Ms Cenzato-Loveridge that her application was dismissed due to the lack of any exceptional circumstances. I agreed to publish reasons for my decision.

Statutory Provisions

[7] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[8] The principles are well established and are 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 (at [13]) in relation to “exceptional circumstances”:

“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.”   

[9] The Full Bench held that ignorance of the timeframe for making a general protections application was not an exceptional circumstance. 4

Consideration

Section 366(2)(a) – reason for the delay

[10] Mrs Cenzato-Loveridge submitted that the reason for delay was because she was “in shock” as a result of her termination.

[11] Secondly, Mrs Cenzato-Loveridge claims that although she was seeking legal advice, she was in survival mode trying to organise the family finances whilst dealing with the pressures of emotional, physical and mental stress.

[12] Finally, Mrs Cenzato-Loveridge confirms that she was not aware of the time limit, and that if she were aware, then her application would have been made in time.

[13] Whilst I am sympathetic to Mrs Cenzato-Loveridge’s financial position, I am obligated to follow the decision in Nulty v Blue Star Group. Ignorance of the statutory time limit is not a sustainable defence. I have taken this into account.

Section 366(2)(b) – any action taken by the person to dispute the dismissal

[14] It has been held that action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 5

[15] Mrs Cenzato-Loveridge provided no evidence that showed that she had taken any action to dispute her termination other than the lodgement of this application.

Section 366(2)(c) – prejudice to the employer

[16] Prejudice to the employer will weigh against granting an extension of time. 6 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.7

[17] It has been held that a long delay gives rise “to a general presumption of prejudice”. 8

[18] Langs Building Supplies Pty Ltd claims that it would be prejudiced by the time and costs involved in further litigation should an extension be granted.

Section 366(2)(d) – merits of the application

[19] In Kornicki v Telstra-Network Technology Group 9 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 that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.” 10

[20] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 11 for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[21] I adopt the reasoning of the Full Bench of the AIRC in Kornicki.

[22] Mrs Cenzato-Loveridge submits that she was discriminated against and was treated adversely by the respondent for taking “too much time off for on leave” to look after herself and her son whilst they were sick. The respondent denies those allegations and says that Mrs Cenzato-Loveridge was dismissed within the minimum employment period because of her “unsuitability for this type of work”.

Section 366(2)(e) – fairness as between the person and other persons in a like position

[23] In Morphett v Pearcedale Egg Farm, 12 Deputy President Gostencnik said;

“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”.

[24] I am satisfied that this is not a relevant matter in these proceedings.

Conclusion

[25] I took into account all of the submissions and information that had been submitted by the parties.

[26] I was not satisfied that there were exceptional circumstances warranting Mrs Cenzato-Loveridge a further period to lodge her Application.

[27] Accordingly, Mrs Cenzato-Loveridge’s application for an extension of time was dismissed.

COMMISSIONER

 1   Section 366(1)(a) of the 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 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [10]

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 6   Ibid.

 7   Ibid.

 8   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

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

 10   Ibid.

 11   Ibis.

 12   [2015] FWC 8885

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