Ms Angelina Johnson v Mattsar Pty Ltd T/A Marges Place

[2015] FWC 254

[2015] FWC 254

FAIR WORK COMMISSION

DECISION

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

Ms Angelina Johnson
v
Mattsar Pty Ltd T/A Marges Place
(U2014/13000)

COMMISSIONER CLOGHAN PERTH, 13 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] On 3 October 2014, Ms Angelina Johnson (Ms Johnson or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Mattsar Pty Ltd T/A Marges Place (Employer).

[2] Ms Johnson states in her application that her dismissal took effect on 11 September 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Ms Johnson has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 3 October 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 3 October 2014, I issued procedural directions to the parties on 22 October 2014 advising that the matter would be determined by way of written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 3 October 2014.

CONSIDERATION

[9] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[10] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[11] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[12] The burden lies with Ms Johnson to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[13] The Applicant’s submission is short and reproduced in its entirety:

“I wasn’t quiet (sic) sure if it was the right thing to do. I suffer from severe anxiety and depression so I wasn’t quiet (sic) handling my situation of being unemployed too well. PSV work find advised me to report my dismissal to the Fair Work Commission but they said it was entirely my decision. As I was anxious trying to sought out the finances due to my dismissal, I didn’t even realise it had been over 21 days.”

[14] It is not uncommon for employees to experience social, emotional and financial difficulties after being dismissed from their employment. For many employees, the prospect of not having a job for an uncertain amount of time creates anxiousness, especially as it relates to financial matters; this is routinely experienced. The circumstances in which Ms Johnson found herself in, is a routine state of affairs for most employees following a dismissal - it is not exceptional.

[15] The Applicant acknowledges that she was advised, by “PSV” to report her dismissal to the Commission. By this, I take Ms Johnson to mean that she was advised to consider filing an unfair dismissal application in the Commission. Whether Ms Johnson sought this information, or it was given to her, she had been given advice during the 21 days following her dismissal.

[16] Having no paid employment has made an impact on the Applicant’s daily life, however, it has also taken away time, which otherwise was occupied with work. This non-attendance at work, enables other matters to be considered - it does not mean that the structure and discipline of addressing timelines can be excused as exceptional circumstances.

[17] Finally, Ms Johnson advised honestly that she did not realise that it “had been over 21 days”. To discover that time has passed, is also not unusual or unique - it is part of our daily lives.

[18] Having considered the reasons submitted by Ms Johnson for the delay in lodging the application, I am unable to conclude that that were exceptional.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[19] The Applicant submits that she was “very much aware” that her dismissal took place on 11 September 2014.

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

[20] The Applicant submits that “she returned to work on the 12/9/2014 and asked my employer if my position was still mine and he stated “No it was not”.

[21] The Employer asserted that the Applicant left of her own accord. The Applicant requested a separation certificate.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[22] The Applicant asserts that there is no prejudice to the Employer. In view of the shortness of time beyond the statutory timeline, I apprehend no prejudice to the Employer caused by the delay in filing the application. However, as I expressed previously, lack of prejudice suffered by an employer is not a satisfier, of itself, of exceptional circumstances.

Paragraph 394(3)(e) - the merits of the application

[23] The Employer asserts that the Applicant elected to leave her employment after being informed during a heated discussion, “If you don’t like the way I run my business, there’s the door”. On leaving the premises, the Employer asserts that the Applicant stated, “I was going to leave anyway”.

[24] The content of the discussion is disputed by the Applicant who claims that she was told to “go” by the Employer.

[25] The Applicant and Employer also have different recollections regarding the discussions on the day after the cessation of employment.

[26] Whether Ms Johnson was unfairly dismissed, particularly in these circumstances, can only be determined after a hearing in which evidence is tested. While I have taken this criterion into account, I have adopted a neutral position as to its “weight” on whether time should be extended to fie the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[27] The Applicant has made reference to another employee who “walked out of the premises and did not return for a week to still have her job there for her”. If the Applicant is asking the Commission to make a comparison with a person who “walked out”, it undermines her assertion that she was dismissed. I have adopted a neutral position with respect to this criterion.

CONCLUSION

[28] In conclusion, for the reasons set out above, I am not satisfied, pursuant to paragraph 394(2)(b) of the FW Act, that exceptional circumstances existed which led to a delay in the Applicant filing her application beyond the statutory timeline of 21 days after the dismissal took effect. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 3 and 26 November 2014.

Employer: 17 November 2014.

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