Ms Emily Campagnolo v My Skin Admin (Vic) Pty Ltd
[2023] FWC 2893
•9 NOVEMBER 2023
| [2023] FWC 2893 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Emily Campagnolo
v
My Skin Admin (Vic) Pty Ltd
(U2023/9267)
| COMMISSIONER CONNOLLY | MELBOURNE, 9 NOVEMBER 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application granted.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an Applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Ms Emily Campagnolo a further period for her unfair dismissal application (Application) to be made against My Skin Admin (Vic) Pty Ltd (My Skin Admin).
Background
Ms Campagnolo has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with My Skin Admin. Her form F2 unfair dismissal application advised that she was told about the dismissal on 11 May 2023 but did not know the exact date it took effect.
The application was lodged on 25 September 2023.
The application recognised that it was made beyond 21 days from the date of dismissal.
On 10 October 2023, I issued directions and advised that the extension of time issue would be considered at a Video Hearing on 26 October 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.
On 12 October 2023, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 8 June 2023 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
On The Papers
In the circumstances, the parties were not in dispute over when the application was made, and that the application was out of time. As there were no contested facts regarding the jurisdictional issue to be determined, my Chambers wrote to the parties seeking their views on whether they were amenable to having the matter determined on the papers, rather than conducting a Hearing.
On the same day, Mr Francis V Gallichio (legal representative of the Respondent) confirmed that the Respondent was content with this proposal. On 23 October 2023, the Applicant also advised that she was content with this proposal.
Accordingly, on 23 October 2023, my Chambers wrote to the parties advising that the Hearing had been vacated and the matter would be determined by me on the papers. A further extension was provided to both parties to file their respective submissions on the jurisdictional issue before me.
Ms Campagnolo provided submissions, a statement of evidence and supporting material. Her position is summarised as follows:
· In her form F2, Ms Campagnolo indicated she did not know the exact date of her dismissal but that she “received a text message saying don’t bother coming to work again”. Acknowledging her application was not within the required 21-day timeframe, she indicated that:
“I have been impacted by Domestic Violence and my mental health has ha[d] serious impacts.”
· In her written submissions, Ms Campagnolo indicated that for the period of January to 3 July 2023 she was in an abusive relationship in which she was physically, emotionally and financially abused.
· Sometime in June 2023, she believes she was unfairly dismissed by the Respondent. She indicates that in the period leading up this dismissal, she sought to make the Respondent aware of her circumstances to the extent possible and acknowledges that the Respondent initially offered her support and accommodations. She states however, that she was fearful of making the Respondent fully aware of her needs and circumstances, including that she needed an extended period of leave.
· On 27 May 2023, she indicated she was assaulted and attended Sunshine Emergency Department.
· From 16 June 2023, she was placed in a safe steps program on multiple occasions for safety and was at a high risk. She “felt vulnerable and scared” and fearful for her life.
· On 22 June 2023, she attempted self-harm.
· On 30 June 2023, the Police were called and on 4 July 2023, her ex-partner was arrested.
· As a consequence, she submits that over the following months her judgement was “severely effected, my mental health had deteriorated significantly. I was alone, my family had abandoned me”, and that “my mental health was so unstable, my proceedings with Fair Work I had initially begun I had to put on pause because I was so unwell”.
· On 23 September 2023, she indicates she was hospitalised for Acute distress disorder and suicidal ideation.
· Only after this time does she indicate that she has felt much better and has been far more stable to the extent that she was then able to capably return to her unfair dismissal application and its lodgement.
The Respondent provided a brief written outline of submissions and additional documents in support of their position, which is summarised below:
· The Commission has no jurisdiction to deal with the Applicant’s unfair dismissal application because the application was made out of time, contrary to s.394(2) of the FW Act.
· The Applicant was dismissed on 8 June 2023 by SMS message.
· The relevant 21 days for filing an application for unfair dismissal remedy expired on 29 June 2023.
· The application was lodged on 25 September 2023 and is therefore 15 weeks and 4 days out of time.
· A delay of this period of time is extraordinary and inordinate by any measure that requires a demonstration of exceptional circumstances by the Applicant.
· Although it is accepted that family violence and ill health are capable to being an acceptable reason (viewed in isolation), it must be found to have prevented the employee from making an application in the relevant period.
· The Applicant in this case fails to provide any relevant material that could reasonably satisfy the Commission of exceptional circumstances for a significant portion of the relevant period.
· None of the medical certificates, or hospital records, supplied by the Applicant give any adequate independent evidence to explain very significant portions of the 15 week delay period.
· The Magistrates Court intervention of 5 July 2023 effectively neutralised any potential harm to the Applicant from that date onwards and the Applicant fails to explain why her supportive legal representative was not capable of filing an application within the 15 week period.
· The Respondent submits that the Applicant has failed to adequately explain the inordinate delay with required exceptional circumstances and therefore no extension of time is warranted.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[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.”
Consideration
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]
The evidence in this case is that the Applicant, while unsure of the exact date of her termination, submits her termination took effect in early June 2023 by SMS message. The Respondent’s evidence is that the Applicant was terminated by SMS on 8 June 2023. I am satisfied and find that the Applicant was terminated on 8 June 2023.
Consequently, this unfair dismissal application was made 15 weeks and 4 days outside the 21-day time limit and therefore can only proceed if the time limit is extended.
Section 394(3) of the Act requires the Commission to take account the matters set out in s.394(3)(a)-(f). Below, I have set out my consideration of each of these factors separately, insofar as they are relevant.
Paragraph 394(3)(a) - reason for the delay
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 when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:
“[31] 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.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
In her submissions, Ms Campagnolo submits that in the period leading up to her dismissal and up to 23 September 2023, she was the victim of domestic violence, subject to physical violence, threats, harassment, court orders and various other interventions. So much so that she was fearful of her life and suffered serious impacts on her mental and physical health. Consequently, stating that she did not recover from these circumstances to the extent possible to complete her unfair dismissal application until after this date.
To support these submissions, the Applicant has provided the following additional documents:
· A medical certificate outlining she was not suitable for work during the period of 27 May 2023 to 29 May 2023,
· Evidence of hospitalisation to Sunshine Hospital on 27 May 2023,
· A Family Violence Interim Intervention Order addressed to her ex-partner, made on 5 July 2023,
· A second medical certificate stating the Applicant is fit for modified duties from 29 May 2023 to 26 June 2023, and
· A statement of her evidence.
In Pottenger v Department of Caffeine[10], the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[11] or reasonable explanation[12]. It is not the case that the Applicant “needs to provide” an acceptable, reasonable or for that matter credible explanation.
It is not disputed that the Applicant was the victim of domestic violence in the period leading up and after the termination of her employment. The Applicant has also provided supporting evidence as to some of her injuries, hospitalisation and made a number of submissions as to the impact of this experience on her mental and physical health up until 23 September 2023. The Applicant submits that it was only after this time that she was able to complete and lodge her application.
While the Applicant has failed to provide any independent supporting evidence of the consequences of her being subjected to an appalling case of domestic violence, I do not accept the Respondent’s submissions that this is necessary or that the issuance of the intervention order by the Magistrates’ Court on 5 July 2023 removed her from harm or “neutralised any potential harm to the applicant from that date onwards”.[13]
The evidence of perpetrators of domestic violence doing so in breach of court orders is all to prevalent. It is also well established that the impact and ramifications of domestic violence on the mental and physical health of victims is significant, incapacitating and long lasting, and in these circumstance, could most certainly have impacted on Ms Campagnolo’s capacity to complete and lodge her application within the required period.
I have had regard to the significant length of the delay. However, in all the circumstances, I am satisfied that being the victim of domestic violence, in this case requiring hospitalisation, court orders and other interventions is an exceptional set of circumstances and is not common or usual, nor should it be.
I am therefore satisfied that Ms Campagnolo has provided a credible reason for the delay in filing the application and that this factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
The Respondent’s evidence is that the Applicant was dismissed by SMS text message sent on 8 June 2023. Ms Campagnolo became aware of her dismissal on receipt of a SMS text message from the Respondent. While the Applicant’s evidence is that she was unaware of the actual date of dismissal at the time of lodging her application, there is no evidence to suggest that she was not aware of being dismissed once in receipt of this SMS message.
I consider this factor as a neutral consideration in whether there are exceptional circumstances in this case.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14]
The Applicant asserts that sometime prior to 25 September 2023 she took steps to initiate proceedings with the Commission with the assistance of a legal representative. The Respondent legitimately raises the question that if the Applicant was being provided with legal assistance, why was this legal representative not able to lodge the Applicant’s unfair dismissal application prior to 25 September 2023. The Applicant does not provide any additional evidence as to why the legal representative failed to take steps to lodge her application. The Applicant’s evidence however, is that not only was she mentally and physically impacted as a consequence of domestic violence but that she was also financially distraught and unable to feed and care for herself, let alone pay for legal assistance during this period.
Consequently, I consider this factor as a neutral consideration in whether there are exceptional circumstances in granting an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
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]
A long delay gives rise “to a general presumption of prejudice”.[17]
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]
I am satisfied that there would be no greater prejudice to My Skin Admin caused by the application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
The merits of an application are relevant; however, the assessment of the merits for the present purposes is limited to, in effect, a preliminary consideration.[19] Further, the primary consideration is whether the Applicant has an arguable case.[20]
In Telstra-Network Technology Group v Kornicki,[21] the Full Bench of the Australian Industrial Relations 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 Full Bench stated:[22]
“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.”
The substantive merits of this application have not been fully tested and as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant an extension of time to an Applicant to lodge their application. [23]
The factual context and merits of the present application would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted to the application to proceed.
Accordingly, as there is insufficient evidence before me to make an assessment, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[24] considered this criterion and said:
“[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.”
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
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[25] reflecting this decision will be issued.
COMMISSIONER
Final written submissions:
Monday, 30 October 2023.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgement 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] Section 394(3) 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] FWAFB 975.
[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] 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].
[8] [2016] FWCFB 349.
[9] [2018] FWCFB 3288 at [35]-[45].
[10] [2018] FWC 3403.
[11] Ibid at [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9].
[12] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64 at [16].
[13] Respondent’s outline of submissions at [11].
[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] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].
[20] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
[21] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[22] Ibid.
[23] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 at [38].
[24] [2016] FWCFB 6963.
[25] PR768114.
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