Ms Brook Shaune-Bould v Yarra Valley Farms Australia Pty Ltd

[2016] FWC 9168

[2016] FWC 9168

FAIR WORK COMMISSION

DECISION

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

Ms Brook Shaune-Bould
v
Yarra Valley Farms Australia Pty Ltd
(C2016/1613)

COMMISSIONER SAUNDERS NEWCASTLE, 21 DECEMBER 2016

Application to deal with contraventions involving dismissal – application to extend time refused

Introduction

[1] The Fair Work Act 2009 (Cth) (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 for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Brook Shaune-Bould (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 21 December 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] There was no appearance by or on behalf of the applicant at the hearing on 21 December 2016. I am satisfied that the applicant was made aware of these proceedings and the hearing on 21 December 2016 by email and by express post to the address nominated on the applicant’s F8 application form. The Commission issued directions on 1 December 2016, and amended directions on 8 December 2016, for the filing and serving of evidence in relation to the applicant’s application for an extension of time. The directions were also sent to the applicant by email and express post. The applicant has not filed any witness statements, submissions or any other documents in support of her application for an extension of time.

[5] In addition I note my Associate has attempted to contact the applicant on a number of occasions by telephone however the telephone number provided by the applicant appears to be invalid.

[6] During the hearing the respondent called evidence from Mr Andrew Murdoch, In-House Counsel of the respondent, in opposition to the applicant’s application for an extension of time.

Legislative Scheme

[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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[9] 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. 4In 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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[10] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[11] There must be an acceptable reason for the delay in making the general protections application. 7

[12] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[13] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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 ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[14] The applicant contends that she was dismissed by the respondent on 21 June 2016. The respondent contends that the applicant’s last shift was on 20 June 2016.

[15] On 20 June 2016 the following email was sent to the applicant from Ms Anna Sullivan on behalf the respondent:

“Hi Brook

I have some bad news. At the moment, there are too many data entry staff, for what the company needs. I have been asked to restructure & cease any casual shifts altogether. Unfortunately, this affects you & Sara.

There is never an easy way to do this but today, Monday 20^th June will be your last shift.

This is not at all performance based & is merely a reflection of shift availability. I have been asked to give all casual work to Kunal, who is now working for us from India. We were always considering sending some data entry offshore but Kunal’s departure means that this has happened more quickly than I expected.

I thank you for your reliability over the time you have worked here & your support of the other girls.

I am very happy to provide a reference for you in the future, if you need one.

Kind regards,
Anna Sullivan”

[16] In the absence of any evidence to the contrary, I am satisfied that the applicant’s employment came to an end on 20 June 2016.

[17] Therefore, the 21 day time period for the applicant to make her Application expired on 11 July 2016. 12 Given that the applicant filed her Application on 12 July 2016, the Application was one day late.13

[18] In accordance with the principles summarised in paragraphs [10] to [13] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 11 July 2016 to 12 July 2016. However, the circumstances from the time of the dismissal (20 June 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[19] The applicant has not adduced any evidence in support of her application for an extension of time. I am not aware of any reasons for the delay in filing the applicant’s Application. Consequently I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

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

[20] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[21] There is no evidence to suggest that the applicant took any action to dispute her dismissal, other than by making her Application. This weighs against a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[22] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[23] A long delay gives rise “to a general presumption of prejudice”. 17

[24] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18

[25] The period of the delay in this matter was one day. That is obviously a short period of delay.

[26] In its outline of argument, the respondent asserts that the lateness of the Application would prejudice the respondent; however, no supporting evidence was adduced by the respondent in this case.

[27] In all the circumstances of this case, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[28] The applicant contends that her employment was terminated as a result of her exercising a workplace right, namely the applicant made a complaint with the Fair Work Ombudsman regarding an underpayment of wages.

[29] The respondent denies the applicant’s contention that it has contravened s.340 of the Act and submits that the applicant’s employment came to an end as a result of a genuine redundancy.

[30] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

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

[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[32] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[33] Having taken into account the matters referred to in paragraphs [13] to [32] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. In the absence of any evidence from the applicant, I am not satisfied that the applicant’s circumstances were out of the ordinary course, unusual, special or uncommon.

[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

No appearance by the applicant;

Mr A Murdoch, In-House Counsel for the respondent.

Hearing details:

2016.

Newcastle:

December, 21.

 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   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

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

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 20 June 2016 (not including 20 June) is 11 July 2016.

 13   That is, 12 July 2016 is one day after 11 July 2016.

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

 15   Ibid.

 16   Ibid.

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

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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