Ms Ellenor Clarke v Shafston House College Limited T/A Shafston International College

[2016] FWC 8119

[2016] FWC 8119

FAIR WORK COMMISSION

DECISION

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

Ms Ellenor Clarke
v
Shafston House College Limited T/A Shafston International College
(C2016/5992)

COMMISSIONER SAUNDERS NEWCASTLE, 11 NOVEMBER 2016

Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.

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 Ellenor Clarke (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 7 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from Ms Margaret Goody, Human Resource Consultant.

[5] In making my decision in this matter I have had regard to all of the evidence adduced by the applicant and the respondent, together with the submissions made by each party, including Ms Clarke’s submissions received on 7 November 2016, after the conclusion of the hearing earlier that day.

Legislative Scheme

[6] 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.”

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

[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. 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

[9] 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

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

[11] 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

[12] 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

[13] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 1 September 2016.

[14] The 21 day time period for the applicant to make her Application expired on 22 September 2016. 12 Given that the applicant filed her Application on 7 October 2016, the Application was 15 days late.13

[15] In accordance with the principles summarised in paragraphs [9] to [12] 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 22 September to 7 October 2016. However, the circumstances from the time of the dismissal (1 September 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.

[16] The applicant explained her delay in making her Application in the following way in section 1.4 of her Application dated 7 October 2016:

“I wasn’t sure that I could make an application as I was still on probation but have been advised since that due to the fact I was bullied during the period I was employed I could still make an application.”

[17] In addition, the applicant confirmed the reason for her delay in her outline of argument as follows:

“As per the Fair Work website it clearly states that you are not allowed to apply for unfair dismissal in a probation period or under 6 months.”

[18] The applicant gave oral evidence, which I accept, to the effect that she did not file her Application on time because she was ignorant of the 21 day time period in the Act. In addition, the applicant gave evidence, which I accept, to the effect that she did not know what to do after her employment had been terminated by the respondent, she had never been dismissed during a probation period before and she felt “shaken up” by the circumstances surrounding her dismissal. The applicant was eventually told by a friend that she could make a claim, notwithstanding that she had been dismissed during her probationary period. The applicant then contacted the Commission and was told she could make a general protections claim. The applicant filed her Application later that day.

[19] Although I have some sympathy for the applicant, the matters she relies on, as summarised in paragraphs [16] to [18] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.

[20] This factor weighs against granting the applicant an extension of time.

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

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

[22] After the applicant was informed at the meeting on 1 September 2016 that her employment was being terminated, she took action to dispute her dismissal by stating to Ms Goody words to the following effect:

“You have to understand it has been a traumatic time for me here, there have been a number of complaints about the treatment of staff… I feel you are letting me go because of the events that have transpired.”

[23] By doing so, the applicant took action to dispute her dismissal. Accordingly, this factor weighs in favour of granting the applicant an extension of time.

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

[24] 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

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

[26] 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

[27] The period of the delay in this matter was 15 days. I consider that to be a reasonably short period of delay.

[28] However, the respondent has not adduced any evidence of particular prejudice arising from the applicant’s delay in making her Application. In all the circumstances, I find that prejudice to the respondent is a neutral consideration.

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

[29] The applicant contends that her employment was terminated as a result of her exercising a workplace right, namely the applicant made complaints about alleged bullying and verbal harassment towards her and her team by the business owner. The applicant submits that she raised these complaints verbally and in writing with the respondent on a number of occasions, the most recent occasion being the day before her dismissal.

[30] The respondent submits that the applicant was dismissed as a result of the applicant’s position, National Marketing and Communications Manager, being made redundant.

[31] 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

[32] 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.”

[33] 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

[34] Having taken into account the matters referred to in paragraphs [13] to [33] 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. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[35] 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:

Ms E Clarke on her own behalf;

Mr L Forsyth, solicitor from Hall Payne Lawyers, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

November, 7.

 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 1 September 2016 (not including 1 September) is 22 September 2016.

 13   That is, 7 October 2016 is 15 days after 22 September 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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