[2016] FWC 6585

FAIR WORK COMMISSION

DECISION

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

Mrs Sian Morris
v
Innerspace Wardrobes T/A Saville Holdings
(U2016/4986)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 14 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] Mrs Morris was dismissed from her employment as a Sales Consultant by Innerspace Wardrobes T/A Saville Holdings (Innerspace Wardrobes) on 17 September 2015 for reason of redundancy.

[2] Mrs Morris lodged her Form F2, Unfair Dismissal Application, with the Fair Work Commission (Commission) on 1 March 2016 and paid her filing fee on 3 June 2016.

[3] Mrs Morris alleged the termination of her employment by Innerspace Wardrobes was unfair because she had been achieving budget and she had not been provided with any warnings for poor performance.

[4] Innerspace Wardrobes filed a response on 22 June 2016 objecting to the application on the basis that the application was out of time, the dismissal was a genuine redundancy and Innerspace Wardrobes was a small business employer.

[5] There were no materials, submissions or witness statements filed by Mrs Morris to support her application or in response to the jurisdictional objection that her application was made out of time.

[6] Innerspace Wardrobes complied with the Commission’s directions, filing submissions, materials and witness statements in advance of the hearing.

[7] The matter was listed for jurisdiction hearing by video link before me on 24 June 2016.

[8] Mrs Morris attended the hearing by video link and gave oral evidence on her own behalf.

[9] Mr Ken Saville and Ms Rosie Saville also appeared at the hearing by video link and gave evidence on behalf of the Respondent.

[10] This decision is about whether the Commission should allow Mrs Morris a further period for lodgement of her application for an unfair dismissal remedy.

[11] 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 Fair Work Act 2009 (Cth) (the Act). Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[12] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(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

(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.”

[13] 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]

Background

[14] In her Form F2 - Unfair Dismissal Application, Mrs Morris states she contacted the Commission the day after her dismissal. She then registered online and “sent off her application within time”, 2 however her application was not received by the Commission.

[15] Mrs Morris submits she was provided incorrect information by the Commission that led her to believe once she had completed the online registration for eFiling she had made her application for unfair dismissal remedy.

[16] The evidence given by Mrs Morris was that she had contacted the Commission on 15 January 2016 for the purpose of inquiring about the status of her application. In response, the Commission emailed Mrs Morris attaching a Form F2 application and an application for waiver of the filing fee.

[17] Mrs Morris lodged her Form F2 Application on 1 March 2016 although the form was not accompanied by an application for waiver of the filing fee or payment of the filing fee.

[18] On a number of occasions between 1 March 2016 and 3 June 2016, the Commission sent correspondence to Mrs Morris seeking a response as to whether it was her intention to proceed with her application. The Commission advised Mrs Morris if payment was not received, her application would be dismissed.

[19] On 3 June 2016, the Commission wrote to Mrs Morris advising that in the absence of any response from her and her failure to pay the required filing fee, her application would be dismissed within 14 days. Mrs Morris made payment for her application to the Commission that same day.

[20] Mrs Morris’ application was filed 166 days after the date of her dismissal and payment of the filing fee was made on 3 June 2016, 260 days after the date of dismissal.

[21] The issue of determining when an application is taken to have been made in circumstances when it has been filed without payment of the filing fee was considered in the Full Bench decision of Thiess Services Pty Ltd v Stephens. 3 In that case the Full Bench said:

“[19] Given s.395 of the Act requires that an application to the Commission under Division 5 of Part 3–2 must be accompanied by any fee prescribed by the Fair Work Regulations 2009 (Regulations) (unless waived as provided for by the Regulations) an application that is not accompanied by the fee as prescribed by the Act is not made in accordance with the Act.

…

[22] Payment (or waiver) is required for an application under s.394 to be made, by virtue of s.395 of the Act. It is not necessary for an application to be complete and signed for an application to be made, given that requirement arises from the Rules, the requirements of which may be dispensed with under Rule 6.”

[22] Whether I accept either the filing date of 1 March 2016 or the date payment of the filing fee was made, 3 June 2016, as the date the application was filed, Mrs Morris’ application was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Act.

[23] Should I accept Mrs Morris’ submission that her application was made at the time of her online registration, then it follows that her application would not be out of time.

Evidence of Mrs Morris

[24] There were a number of inconsistencies in Mrs Morris’ submissions at the hearing on 24 June 2016. Mrs Morris provided the following reasons for why her application was made out of time:

(a) she had registered online and took this to be her application had been made;
(b) she was suffering financial difficulties due to being unemployed and was unable to make the filing fee payment and for this reason she delayed submitting her application; and
(c) due to her working arrangements, the hours of work and work stresses, she didn’t have time to submit the application.

Online Registration

[25] In her oral submission Mrs Morris says she rang the Commission on 18 September 2015 to obtain information on how to apply for an unfair dismissal application.

[26] Mrs Morris says on 22 September 2015 she accessed the Commission’s website and registered online. Once she had completed her registration, Mrs Morris says she received a return email informing her that her registration was successful and took this to mean her application was complete.

[27] Mrs Morris submits it wasn’t until she rang the Commission in January 2016 that she became aware her application had not been lodged.

[28] Mrs Morris’ submission was that she was provided with incorrect information by the Commission, and was told all she had to do was register online and someone would contact her. Mrs Morris says she was not informed she had to fill out a Form F2 Application or make any payment.

Filing of F2 and Fee payment

[29] It is not in contention that on 15 January 2016 Mrs Morris received email correspondence from the Commission attaching a Form F2 Application and an application for waiver of the filing fee.

[30] Mrs Morris submits she did not immediately submit the application because she could not afford the filing fee. Although she had received the fee waiver application, Mrs Morris decided not to complete the application as there were too many personal questions to which she did not wish to provide a response.

[31] Mrs Morris submits she did not lodge her application until 1 March 2016 because she needed to be working in order to be able to pay the filing fee. Mrs Morris initially stated she had been unemployed for four months after her dismissal and had not obtained any other employment prior to lodging her application. However, Mrs Morris later submitted she worked for a month in October 2015.

[32] Mrs Morris submits it was not until she obtained employment on 25 March 2016 that she was able to pay the filing fee and that is why she lodged her application in March.

[33] Mrs Morris later submitted she had been working from January 2016 and it was due to the hours she was working that she was unable to lodge her application.

[34] Mrs Morris then submitted she had been working as a casual from January to March 2016 for between 20 to 50 hours per fortnight, and for this reason she was unable to lodge her application. Mrs Morris also submitted she was working fulltime during this period.

[35] In a further submission by Mrs Morris, she said that the reason it took a further three months to lodge her application after receiving the Form F2 application by email from the Commission in January 2016, was due to her work commitments and that her job was so stressful she couldn’t lodge the application.

[36] Mrs Morris then submitted she commenced work in her new employment on 15 March 2016.

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

[37] Mrs Morris must provide a credible reason for the delay in making the unfair dismissal application. 4

[38] Mrs Morris must provide a credible reason for the whole of the period that the application was delayed. 5 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.6

[39] In accordance with the principles summarised in paragraph [38] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. 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.

[40] I found the evidence of Mrs Morris to be inconsistent. Mrs Morris first relied on being provided with the wrong information by the Commission as the reason for the delay in her application. Mrs Morris submits she registered online and had received email correspondence confirming her registration. It is Mrs Morris’ submission that she had received a confirmation email acknowledging her registration. Upon completing her registration, Mrs Morris would have received the following information in the confirmation email from the Commission:

“This is to acknowledge that you have been registered on the FWC web site as an eFiling User with contact details as set out below.

Important note: Registering does not mean you have lodged an application. You can find out more information on how to lodge an application at

Please note time limits apply for lodging some applications.”

[41] Giving consideration to the submissions of Mrs Morris, I am not persuaded that Mrs Morris had any reason to assume her application had been made at the time she registered as an eFiling User. There is no evidence before me to make a finding that the Commission was in error in its advice to Mrs Morris or that any advice Mrs Morris may have received would have led her to believe online registration would constitute a completed application for unfair dismissal remedy.

[42] I have also considered the reasons Mrs Morris relies on for the delay for the lodging of her application after she became aware her application had not been made. Mrs Morris submits she did not initially file her application because she couldn’t afford the application fee. Regardless of the inconsistencies in Mrs Morris’ submissions, Mrs Morris was provided with a fee waiver form and it was Mrs Morris’ choice not to submit the form along with her application. It was open to Mrs Morris to make an application to have the fee waivered and she chose not to pursue this course of action. Therefore, I am not satisfied the reasons Mrs Morris has provided amount to exceptional circumstances.

[43] Mrs Morris also submitted her working hours and conditions prohibited her from being able to submit her application. Again, the submissions by Mrs Morris about her working arrangements were inconsistent. I have considered all of the submissions and any evidence put by Mrs Morris and I am not satisfied the reasons Mrs Morris provides, including that she was working between 20 to 50 hours per fortnight or working full time, are unusual, special or uncommon. I am therefore not satisfied that Mrs Morris has provided reasons amounting to exceptional circumstances 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

[44] It is not in contention Mrs Morris became aware of the dismissal at the time it took effect.

[45] Mrs Morris had the full 21 days from the date of 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

[46] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 7

[47] Mrs Morris submits she attempted to broker an alternative arrangement with Innerspace Wardrobes in order to remain employed, however her attempts were unsuccessful.

[48] Mrs Morris also submits her main focus after her dismissal was to obtain alternative employment as soon as practicable. Mrs Morris said that this was her whole and sole focus after the dismissal and for that reason she took no other action to dispute her dismissal. I find this weighs against a finding that there are exceptional circumstances.

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

[49] Prejudice to the employer will go against the granting of an extension of time. There were no submissions made relevant to this criterion. I consider this criterion to be neutral.

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

[50] 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, 8 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.”

[51] Mrs Morris submits the redundancy was not genuine as Innerspace Wardrobes were making money and she had been told at one stage they were making too much money.

[52] Ms Saville submits Mrs Morris’ role was made redundant because the duties Mrs Morris performed were no longer required to be performed. Mrs Morris’ role was unable to be funded due to the lack of adequate revenue being produced by the business.

[53] Ms Saville submitted that after reviewing the business financials and prior to the decision to make Mrs Morris’ position redundant, she met with Mrs Morris to inform her of the likely outcome.

[54] 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” 9 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[55] I have considered the evidence before me and I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

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

[56] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 10 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.”

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

Conclusion

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

[59] An order 11 dismissing Mrs Morris’ application will accompany this decision.

COMMISSIONER

Appearances:

Mrs S Morris on her own behalf.

Mr K Saville with Ms R Saville for Innerspace Wardrobes.

Hearing details:

2016.

Melbourne and Hobart (video hearing):

June 24.

1 [2011] FWAFB 975.

2 Form F2 Unfair Dismissal Application

3 [2014] FWCFB 2426.

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

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

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

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

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

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

10 [2015] FWC 8885.

11 PR585382.

Printed by authority of the Commonwealth Government Printer

Mrs Sian Morris v Innerspace Wardrobes T/A Saville Holdings