Ms Fiona Tome v Asian Pacific Serviced Offices Pty Ltd
[2023] FWC 2710
•1 NOVEMBER 2023
| [2023] FWC 2710 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Fiona Tome
v
Asian Pacific Serviced Offices Pty Ltd
(C2023/5046)
| COMMISSIONER CONNOLLY | MELBOURNE, 1 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal - extension of time – whether exceptional circumstances exist – no exceptional circumstances exist – extension of time refused – application dismissed.
Background
On 18 August 2023, Ms Fiona Tome (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of her employment with Asian Pacific Serviced Offices Pty Ltd (the Respondent) which is alleged to have occurred on 16 June 2023.
The Fair Work Act 2009 allows 21 days to lodge this application. The application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission to allow the general protections application to proceed.
The application identified that it was made beyond the 21 days from the date of dismissal. The Application was lodged on 18 August 2023, and is therefore 42 days out of time.
On 11 September 2023, the Respondent lodged a Form F8A Employer Response which indicated that the dismissal occurred on 16 June 2023 and raised a jurisdictional objection on the basis that the application was lodged out of time.
This decision only concerns whether I should exercise my discretion to allow Ms Fiona Tome a further period for her general protections application against the Respondent.
On 15 September 2023, I issued directions and advised that the extension of time issue would be considered at a Video Hearing on 17 October 2023. Additional information about the extension of time issue was provided, including the factors that I am required to take into account in considering this matter, on 25 September 2023.
Hearing
A Hearing was conducted by way of Video using Microsoft Teams on 17 October 2023. A video file record of the Hearing was kept.
CIE Legal sought leave to represent the Respondent. No objections were made.
Mr Andrew Maher was granted permission to represent the Respondent on the basis that it would allow the matter to be conducted more efficiently, given the relative complexity of the matter, as per s.596(2)(a) of the Act.
A digital court book was compiled from the material that was filed by both parties and was distributed to the parties prior to the Hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
The parties are not in dispute over when the application was made. While there are disputed facts about the circumstances that gave rise to the dismissal and the date Ms Tome’s termination took effect, there are no contested facts regarding the jurisdictional issue which is the focus of this decision.
Ms Tome gave evidence at the Hearing, and her position is summarised as follows:
· On 22 May 2023, Ms Tome attended a meeting with Ms Flavell (Human Resources Manager) and Ms Pardo (National Manager for the Respondent) where she was advised that there was a possibility her position as Virtual Office Manager could be made redundant; that they may be some possibility of redeployment to a more junior position and that a further meeting would be arranged with herself and Mr Deague (Managing Director) to discuss her redeployment or redundancy package further.
· Following this meeting, Ms Tome was provided with an estimate of her redundancy and termination entitlements as a “minimum” and a calendar invite to the follow up meeting with Mr Deague on 14 June 2023.
· Ms Tome’s evidence is that as an employee with over 12 years of service with a good employment history and working relationship with Mr Deague, she was hopeful and confident that by meeting Mr Deague either her redundancy would be reconsidered, suitable alternative employment would be identified, or a more acceptable separation package determined.
· Further, that she was aware that the business was continuing to grow, opening new premises in Toorak and that there was a good possibility of her finding another role in the business.
· Hopeful this would be the case, she continued finalising her work and on 25 May 2023 she travelled overseas on a pre-arranged family vacation and returned to work on 13 June 2023.
· During this time, she did not seek any legal advice or assistance as to her options or consider making a general protections application.
· Ms Tome returned to work on the 13 June 2023 and focused on getting back on top of her work and emails and preparing for the meeting the following day with Mr Deague. She did not review all her emails on this day and forwarded some, but not all, to her personal email address to review later.
· Importantly, two significant emails were not forwarded or reviewed that Ms Tome became aware of subsequently. The first, received on 30 May 2023 from Mr Gianni Zagame (General Manager) to all employees advised staff of her redundancy and that her last day of employment would be 16 June 2023. The second was a letter from Ms Flavell notifying her of the decision to make her redundant as proposed in the 22 May 2023 meeting, confirming her last day of employment as 16 June 2023 and providing her details of the employer’s EAP services.
· On 14 June 2023, when Ms Tome met with Mr Deague it first became clear to her that she was not going to be considered for another role or a more generous separation package and that her employment would be ending on 16 June 2023. Mr Deague commenced the meeting thanking her for her service and provided no opportunity for any discussion despite Ms Tome’s attempts to make him aware of her concerns with her treatment and that her termination was not a case of a genuine redundancy.
· Following this meeting, on 15 June 2023, Ms Tome first sought legal advice and assistance from a number of sources, including making her own online enquiries.
· Her evidence is that this advice led her to the conclusion that as she was first advised of her redundancy on 22 May 2023, the date she was notified of her dismissal was the 22 May 2023 and that she was therefore outside the 21-day timeframe to make a s.365 General Protections involving dismissal application.
· Ms Tome attested that she continued to remain confused as to her termination date and that her own enquiries confirmed that if, as she thought at the time, the day she was notified of her dismissal was the 22 May 2023 she was out of time.
· In her oral evidence, Ms Tome confirmed that when she left work on 15 June 2023 for the last time, she was aware that her employment was ending the following day, 16 June 2023, and had arranged to return her swipe pass then.
· Being aware her employment had come to an end and concerned that she could not make an application to the Commission, Ms Tome became focused on securing her legal entitlements, or better, following the termination of her employment. On 15 June 2023, she sent an email proposal to Mr Deague seeking to secure her entitlements and a more beneficial settlement package if possible.
· Between 15 June 2023 and 24 July 2023, this remained her concern and focus. During this time, her employer indicated that the initial estimate of her redundancy entitlements was being reviewed and that there may have been incorrect calculations of her annual and long service leave entitlements. She was also concerned that an agreement she had made with Mr Deague that her termination pay be processed in July 2023; that she be provided with final commission payments and vouchers; and be allowed to keep her mobile phone was also in jeopardy. As a consequence, Ms Tome felt she was being pressured and intimidated into just going quietly and could not focus on anything else.
· During this time, the Applicant sought additional legal advice, including from Job Watch and the Fair Work Ombudsman and gave evidence that she became aware that she could only proceed with a General Protections involving dismissal application if granted an extension of time.
· All of the issues and concerns Ms Tome was working through with regard to her outstanding employment entitlements were finally settled by 24 July 2023, at which time she began focus on preparing her application to the Commission.
· Based on the legal advice she had received Ms Tome was conscious that she needed to establish “exceptional circumstances” to be granted an extension of time. Consequently, Ms Tone again sought legal advice and commenced diligently and thoroughly preparing her application.
· Given the impact of the dismissal on her overall mental and physical health, her confusion as to the date of the notification of dismissal and the significant complexity of both her termination and efforts to resolve her entitlements, Ms Tome submits that finalising these materials took some time and effort.
· On 18 August 2023, Ms Tome lodged her initial F8 Form indicating the date her dismissal took effect as “16 June 2023 in the office and 23 June 2023 on my final pay slip, with 5 weeks notice thereafter.”
· Subsequently, on the same day an amended F8 was lodged indicating that the date of dismissal was 16 June 2023.
The Respondent relied on its submissions and witness statements filed by Ms Josephine Flavell (Human Resources Manager), Mr Gianni Zagame (General Manager of Deague Group) and Ms Stephanie Pardo (National Manager), and further contended:
· The test to meet ‘exceptional circumstances’ is a high threshold for the Applicant to establish as identified by the Commission in Micallef v Garfield Child Care Pty Ltd t/a Garfield Child Care[2013] FWC 5447 [57].
· The Applicant was dismissed following a genuine redundancy process on 16 June 2023 and the Applicant’s 21-day timeframe for the date of her termination concluded on the 7 July 2023.
· The Applicant’s general protections application is 42 days outside the required timeframe and there are no exceptional circumstances to grant an extension of time.
· With regard to s.366(2) of the Act, the Respondent made no submission on prejudice to the employer, but submitted that:
othe Applicant has not provided a compelling and exceptional reason for her delay in lodging her application;
othe Applicant failed to take adequate steps to dispute the dismissal;
othe Applicant’s employment was terminated solely on the basis that her role was redundant, that her application is wanting for merit on this basis;
oit would be unfair to other persons in the same position as the Applicant to extend the timeframe.
· Relevant to the Applicant’s submissions, the Respondent accepted the Applicant’s evidence that there were unusual delays and complications with the finalisation of Ms Tome’s final entitlements – including her annual leave, commissions and voucher payments.
· The Respondent submits however, that while unusual, these circumstances were largely a consequence that many of these provisions were provided on an unusual and discretionary basis by the employer to the benefit of the Applicant.
· The Respondent rejected any suggestion that it subjected the Applicant to any pressure or intimidation to ‘just go quietly’.
· The Respondent maintained that the Applicant was well aware that she was being terminated by way of redundancy and that in the meeting of 22 May 2023 when the redundancy was first raised as a consideration, it was the Applicant who expressed interest in a redundancy and sought clarification of her entitlements and confirmation of this decision prior to her departure on leave on 25 May 2023.
· The Respondent’s materials and evidence supported this version of events and indicated that: the Respondent acted on this understanding in its communications on 25 May 2023, confirming the decision to make the Applicant redundant; and 30 May 2023 advising staff that Ms Tome would be ending her employment with the Respondent on 16 June 2023.
Observations on the Evidence
There are sharp and significant factual differences between the principal witnesses in this case. The evidence of the Applicant differs markedly and materially to the evidence given by the Respondent’s witnesses.
The Applicant has called no additional witnesses to support her application for the granting of an extension of time, while maintaining that there were a number of witnesses relevant to the merits of her application should it proceed. The Respondent provided 3 corroborating witness statements supporting their version of events over the Applicant’s. These statements are significant with regard to the decision to make Ms Tome’s position redundant, what was said by whom at the meeting on 22 May 2023, and the subsequent decision to confirm this redundancy effective 16 June 2023 in their correspondence sent on 25 May 2023.
I found that each of the Respondent’s witness endeavoured to be of assistance to the Commission and provided their evidence in good faith. There were however some inconsistencies regarding the Respondent’s evidence as to the potential suitable alternative employment for Ms Tome and its remuneration level that may not withstand more thorough examination. Similarly, while I accept Mr Zagame’s evidence that he did not subject the Applicant to threats, undue pressure of duress, I also accept that Ms Tome’s perception of what was being communicated to her in relation to some of the discretionary aspects of her settlement package could have legitimately been otherwise.
Ultimately, however, as the evidence established and accepted that the date of the Applicant’s termination was 16 June 2023, I was not required to examine this evidence further as the question before the Commission in this matter is limited to whether or not exceptional circumstances exist to the extent that they support the granting of an extension of time to Ms Tome’s application.
In this regard, it is the evidence of Ms Tome that is critical.
Ms Tome was in a difficult position as both the Applicant and advocate in these proceedings. However, I do think that Ms Tome at all times sought to assist the Commission in both its proceedings with her evidence and overall conduct. However, as the Applicant, I found that her sense of injustice and unfairness in what she perceived to have occurred influenced this evidence.
I accept Ms Tome’s evidence as to her experience and perceptions of what has occurred in these circumstances.
What I am required to determine however, is whether all the materials presented as to these facts and circumstances warrant the granting of an extension of time pursuant to s.366(2) of the Act and the relevant case law.
Applicable Law
Section 366 of the Act relevantly states:
“Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd,[1] 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).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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
I find that the Applicant was dismissed on 16 June 2023.
This general protections application was made 42 days outside of the 21-day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). Below, I have discussed these factors raised by the provision separately, insofar as they are relevant.
(a)The reason for the delay
The Applicant’s submissions as to the reasons for the delay are many. Firstly, that she was confused as to the actual date of her termination and whether this was 22 May 2023; when she was first notified of her potential redundancy, 16 June 2023; when she handed back her swipe card or 23 June 2023 as indicated on her final pay slip. She further submits this confusion was compounded by legal advice she received after 15 June 2023 that if the relevant day was 22 May 2023, she was therefore out of time to make a general protections application.
Being made aware of the 21-day timeframe required for general protections applications to be lodged and that she may be already out of time, Ms Tome then says that this initial confusion led her to focus on the securing her legal entitlements, and that these attempts were frustrated by omissions, errors and threats by her employer’s representatives.
It was not until 24 July 2023 that all of these outstanding issues were resolved, and that Ms Tome was able to focus on completing her application and stablishing the exceptional circumstances required for it to proceed. Ultimately, it took until 18 August 2023 for the application to be lodged, due to both the volume and complexity of the materials required by the Applicant to be submitted and the impact of the dismissal on her physical and mental capacity.
Ms Tome submitted and acknowledged that she was first made aware of the 21-day time limit for the making of general protections applications on 15 June 2023. Further, she acknowledged in evidence that on 16 June 2023 she was aware that she had been terminated and was no longer employed. Ms Tome subsequently had a series of conversations with legal advisers and related institutions, including Job Watch, the Fair Work Ombudsmen (FWO) and undertook her own research, including visiting the Fair Work Commission web page.
In Pottenger v Department of Caffeine,[2] 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,[3] or a reasonable explanation.[4] It is not the case that the Applicant “needs to provide” an acceptable, reasonable or for that matter credible explanation.[5]
The absence of any explanation for any part of the delay will usually weigh against an Applicant in such an assessment.[6] Similarly, a credible explanation for the entirety of the delay will usually weigh in the Applicants favour, though it is a question of degree and insight.[7]
While I accept that Ms Tome may have had some initial confusion as to the date her termination took effect or the date she was notified of her dismissal. By her own admissions, however, after 16 June 2023 it was not only clear to her that she made redundant, but also, that she may have run out of time to make a general protections application.
Despite this, it took until 18 August 2023 for this application to be lodged. I accept that Ms Tome legitimately took the necessary steps to clarify and rectify her entitlements up until 24 July 2023, that her capacity had been inevitably impacted by the dismissal, and that preparing her application thoroughly may have taken some time.
However, I do not accept that the circumstances confronted by Ms Tome were “out of the ordinary course, unusual or uncommon”. On 16 June 2023, she became unequivocally aware that her employment had ended. She was aware of a 21-day time requirement for making an application at this time, but instead chose not to prioritise this application and choose to prioritise finalising her severance entitlements, which including making multiple communications and enquiries to both the Respondent and relevant institutions.
It is regular, routine and not uncommon for employees dealing with redundancy to have cause to seek to clarify their severance entitlements. It is also not uncommon or exceptional for employees in similar situations to be required to deal with concurrent matters in order to exercise their legal entitlements.
Regarding Ms Tome’s submissions as to the impact of the termination on her overall capacity to deal with her circumstances, no evidence was produced to support this contention. However, I have no reason to believe this was not the case. As the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd (Shaw) identified, stress, shock and confusion as a consequence of the loss of employment are not of themselves exceptional. While the loss of employment is a serious event in a person’s life, the effects of such are unfortunately not unusual.[8]
As a consequence, I am not satisfied that there is a sufficient explanation for the period of delay in question and I do not find that the Applicant’s reasons for the delay in making her application weigh in favour of a finding of exceptional circumstances.
(b)Any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an application, may favour granting an extension of time.[9] Once being informed of the potential of being made redundant, the Applicant sought a meeting with company owner and director Mr Deague, which took place on 14 June 2023.
Despite being conducted before her termination date, I accept that part of the purpose of this meeting was clearly for the Applicant to dispute the decision to make her redundant. On 15 June 2023, the Applicant sought legal advice from a Law Firm in relation to her termination. Following 16 June 2023, both within and outside the 21-day timeframe, the Applicant made numerous communications disputing aspects of her dismissal.
Whilst many of these communications focused on addressing outstanding items and entitlements, each were related to her dismissal. I consider this finding to weigh in favour of there being exceptional circumstances.
(c)Prejudice to the employer (including prejudice caused by the delay)
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time where to be granted and the Respondent has made no substantive submission in this regard.
The absence of prejudice, however, is not itself a factor that would warrant the grant of an extension of time. I therefore consider this to be a neutral factor.
(d)The merits of the application
The nature of this matter is that such that consideration must first be considered to whether the application was made within the period required in s.366(2) of the Act and whether an extension of time in which to make the application should be approved. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[10] 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:[11]
“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. [12]
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. Based on the material filed, I note the submissions of the Respondent that the decision to terminate the Applicant’s employment was based solely on the grounds of a legitimate redundancy.
However, in light of the evidence presented, I am not convinced that the application is without merit. Accordingly, I consider this factor to be a neutral factor in determining whether to grant an extension of time.
(e)Fairness as between the person and other persons in a similar position
The Applicant made no submissions on this factor. The Respondent submitted that other individuals in the Applicant’s position would have filed the application within time.
Specifically, the Respondent submitted that it would be unfair to other persons in the same position as the Applicant to extend the time limit for filing on the grounds that the Applicant:
· had the opportunity to seek legal assistance but chose not to;
· had the necessary information and documentation to advise a representative correctly of her termination date and when the timeframe would expire, and it was beholden on the Applicant to ensure she read the materials from the Respondent setting this information out;
· spent the 21-day timeframe and a further period to focus on finalising her pay and entitlements which are separate to and did not impact on her ability to file an application;
· did not provide any medical evidence as to her mental health which affected her ability to file the application and was able to follow up with multiple external agencies over her disputes in relation to her entitlements.
The Respondent further submitted that the Applicant has been treated fairly and reasonably by the Respondent by being provided a number of discretionary benefits, including 2 additional weeks of annual leave, an additional weeks’ pay, payment in the new financial year and gifting the company owned mobile phone.
In Morphett v Pearcedale Egg Farm,[13] the Deputy President considered this criterion and stated:
“…cases of this kind will generally tun on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to other matters currently before the Commission or matters which had been previously decided by the Commission.” [14]
While the specific circumstances facing the Applicant are inevitably unique to this particular case, I am satisfied the issue of fairness between the Applicant and other persons in a similar position is a relevant consideration in this matter.
In particular, I have found that the Applicant was made aware that her employment had unequivocally ended as of 16 June 2023 and became aware of the 21-day time frame no later than 15 June 2023. I have not been satisfied that the Applicant’s reasons for this delay in lodging her application weight in favour of granting an extension of time.
Accordingly, I am satisfied that it is likely a person in similar position would have sought to make an application as soon as practically possible after being made aware of the timeframe and within the 21-day period and that this factor weighs against the granting of an extension of time.
Conclusion
Having considered the material before me, I am not satisfied, on balance, that Ms Tome’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused.
An Order reflecting this decision will be issued.[15]
COMMISSIONER
Appearances (by videoconference):
Ms F Tome, the Applicant
Mr A Maher, on behalf of the Respondent
Hearing details:
2023.
Melbourne.
17 October.
[1] [2011] FWAFB 975.
[2] [2018] FWC 3403.
[3] Ibid at [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9].
[4] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64 at [16].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [40].
vi Ibid at [39].
[7] Ibid.
[8] [2015] FWCFB 287 at [15].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[300].
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Ibid.
[12] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 at [38].
[13] [2015] FWC 8885.
[14] Ibid at [29]
[15] PR767330.
Printed by authority of the Commonwealth Government Printer
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