Ms Brooke Burns v Frank Cirillo

[2024] FWC 2110

[2024] FWC 2110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Brooke Burns
v

Frank Cirillo

(U2024/6762)

DEPUTY PRESIDENT CROSS SYDNEY, 9 AUGUST 2024

Application for an unfair dismissal remedy

1. This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Brooke Burns (the Applicant) was notified of her dismissal from employment with Mr Frank Cirillo (the Respondent) during a conversation on 16 May 2024. The Application was lodged on 6 June 2024. The Applicant acknowledged that the Application was filed outside the 21 day limit.  

1. The Act provides a 21 day time limit for initiating an application for unfair dismissal. The Respondent claims the Applicant’s employment relationship ceased by way of the Applicant walking out of the Respondent’s premises without notice on 15 May 2024. I note, however, that both the Applicant and the Respondent refer to a conversation on 16 May 2024, in which the Applicant indicated she would “sue” the Respondent. I find that the cessation of employment occurred on 16 May 2024. As she filed her application on 12 June 2024, the application was filed 6 days outside the statutory time period permitted by s 394(2) of the Act.

1. In the hearing of the matter the Applicant was represented with permission by Outwest Legal Pty Ltd and the Respondent was represented by the Motor Traders Association. On 17 July 2024, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 22 July 2024, the Applicant filed an Affidavit of the Applicant.

(b) On 31 July 2024, the Respondent filed an Outline of Submissions together with Affidavits of the Respondent and Ms L Cirillo; and

(c) On 7 August, the Applicant filed a second Affidavit of the Applicant.

1. The Hearing of the Application occurred on 8 August 2024 (the Hearing).

Relevant statutory provisions and principles

1. The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal 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.’

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[1](‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of exceptional circumstances has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

1. It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not exceptional circumstances have been established. Even if exceptional circumstances are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. In other words, exceptional circumstances may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time. I turn now to each of the criteria set out under s 394(3) of the Act.

Reasons for the delay (s 394(3)(a))

1. The Applicant submitted at the Hearing that the reason for the delay in filing the Application was “the state of mind of the Applicant”. In her first Affidavit, the Applicant deposed:

17. Given the traumatic details of what was revealed, I didn’t know how to react and comprehend the situation. I didn’t know if I even wanted to pursue an unfair dismissal claim and wanted to remove the Respondents complete memory.

18. However, after further discussions with my family, I then decided to instruct my Lawyer to lodge an unfair dismissal claim albeit out of time.

19. I understand that the application was lodged approximately 6 days late.

1. In her second Affidavit, the Applicant deposed:

6. Since 17 June 2024, I have commence sessions with Registered Clinical Counsellor Kerry Kotinsky Verlingieri and my daughter also has session booked.

1. The Applicant did not provide evidence in relation to her “the state of mind”, other than the letter from Renewed Hope Counselling that noted she had received counselling commencing five days after the filing of the Application.

1. The evidence disclosed that the Applicant first met her representative 8 days after the dismissal, and in the Hearing the Applicant confirmed that she was aware of the 21 day limitation period. It is clear from the evidence that the Applicant was not precluded by any “state of mind” from advancing her claims. She simply chose to take her time in advancing those claims.

1. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2], a majority of the Full Bench (Watson VP and Smith DP) observed:

After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.

[Emphasis added]

1. In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reason for filing her application out of time constitute exceptional circumstances, as contemplated by the statute. This factor weighs in the Respondent’s favour.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

1. For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 16 May 2024. This is a neutral factor in this case.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

1. While the Applicant submitted that a “follow up” email constituted notice of dispute, that email was part of the chain of emails constituting the dismissal on 16 May 2024. I find that the first action taken by the Applicant was the lodgement of the Application on 12 June 2024. Nonetheless, this is a neutral factor in this matter.

Prejudice to the employer (s 394(3)(d))

1. The Respondent made no particular submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.

Merits of the application (s 394(3)(e))

1. This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.  The Respondent submits that there was no dismissal.

1. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[3]  

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”  

1. In the matter of Kornicki v Telstra-Network Technology Group the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission observed:

“The merits of the substantive application. 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.”

1. I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits, and consider that this is a neutral factor in my consideration. 

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

1. The Applicant did not rely on this criterion, and note that that this is a neutral factor in my consideration.

Conclusion

1. As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reason for the significant delay. That factor weighed in the Respondent’s favour. 

1. I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Warda on behalf of the Applicant.

Mr Allt on behalf of the Respondent.

Hearing details:

2PM.

Sydney.

Microsoft Teams.

[1] [2011] FWAFB 975.

[2] [2015] FWCFB 287, at para [15],

[3] Print T2421 at [14].

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