Ms Haylee Louise Jack v Treloar Property Group

[2019] FWC 6716

[2019] FWC 6716

FAIR WORK COMMISSION

DECISION

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

Ms Haylee Louise Jack
v
Treloar Property Group
(C2019/4045)

DEPUTY PRESIDENT LAKE BRISBANE, 27 SEPTEMBER 2019

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This Decision concerns an application by Ms Haylee Louise Jack (the Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to her dismissal by Treloar Property Group (the Respondent). The Applicant’s permanent employment with the Respondent was terminated on 15 April 2019. She was re-appointed on a casual basis thereafter with the employment relationship formally coming to an end of 7 June 2019. The Applicant filed her general protections application on 1 July 2019.

[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application must have been made by midnight on 21 July 2019 but was not. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] The Respondent did not consent to participate in a conciliation prior to the determination of whether the Applicant should be granted a further period in which to make her application. Directions were issued on 12 August 2019 requiring the Applicant to file submissions and material setting out the basis that there were exceptional circumstances justifying the granting of a further period in which to make her application, by 4:00pm on Tuesday, 20 August 2019. The Respondent was directed to file and serve submissions and any material to its view by 4:00pm on Tuesday, 27 August 2019. The directions were complied with. In these directions, a hearing date was set for Friday, 30 August 2019 for me to hear the matter. The hearing proceeded on 30 August 2019 by telephone.

[4] At the hearing, the Applicant was represented by one Ms Helen Ferrari, an HR professional, but who supported the Applicant as a support person. I was therefore not required to exercise my discretion to allow the Applicant to be supported by Ms Ferrari. Mr Wayne Treloar, Director of the Respondent, appeared on behalf of the Respondent.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s.366(1) of the Act requires that a general protections application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[9] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

The reason for the delay – s. 365(2)(a)

[10] The Commission must consider the reason for the delay. An absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each. 5

[11] The Applicant stated in her outline of argument that her application was not made within 21 days of his dismissal because of the following reasons:

•  the Applicant was confused about what transpired on 15 April 2019 wherein her position was changed from permanent to casual and she did not know what to do; and

•  the Applicant felt embarrassed and humiliated about what had occurred to her on 15 April 2019 until the date she ultimately lodged her application; and

•  the Applicant’s mental state after 15 April 2019 deteriorated whereby she was unable to focus on her work and, ultimately, making this application; and

•  the Applicant’s mother was unwell and fragile during this time which did not assist her mental wellbeing.

[12] To support these reasons, the Applicant provided sworn evidence at the telephone hearing on 30 August 2019 which attested to these reasons for the delay.

[13] With regard to these reasons, and on the evidence before me, I cannot determine that any of these reasons is an exceptional circumstance or combine to create exceptional circumstances giving rise to me exercising my discretion to allow an extension of time.

[14] With regard to the Applicant’s confusion about her employment changing from permanent to casual, this submission has some merit. However, I ultimately have determined that there was at least some onus on the Applicant during this period to seek advice with respect to her rights after this event, and not some months after this occurred. The situation is entirely regrettable, but it does not necessarily help the Applicant in making her case for an extension of time.

[15] Regarding the Applicant’s sense of humiliation and the deterioration of her mental state, combined with her mother’s illness, I again sympathise with the Applicant’s plight. However, these matters, I find, are not necessarily extraordinary for the purposes of allowing an extension of time for the Application to file her application, particularly where they do not provide a day-by-day account of the impact that these events had on the Applicant’s state of mind and capacity to file her application.

[16] Ultimately, I have determined that the Applicant’s reasons for the delay do not persuade me to exercise my discretion to allow an extension of time for the Applicant to lodge her application, particularly given the time which elapsed between the Applicant’s dismissal and the filing of the application, being more than two (2) months.

Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)

[17] I am not persuaded on the evidence that the Applicant took steps to dispute her dismissal. However, I am satisfied that the reason for this was because the Applicant was confused and distressed by her employment changing from permanent to casual. Given the above consideration, I find this to be a neutral criterion.

Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)

[18] The application was made more than two (2) months out of time. No evidence was provided by the Respondent that it would cause prejudice to it in defending this matter if an extension of time was allowed. I am therefore satisfied that this is a neutral criterion.

The merits of the application – s. 366(2)(d)

[19] In Kornicki v Telstra-Network Technology Group 6 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

[20] Without a proper assessment of all the evidence in this matter, this is a neutral determination.

Fairness as between the Applicant and other persons in a like position – s. 366(2)(e)

[21] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 7

[22] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

CONCLUSION

[23] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.

[24] Pursuant to section 366(2) of the Act, the extension of time is denied and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

For the Applicant: Ms Helen Ferrari, as a support person for the Applicant.

For the Respondent: Mr Wayne Treloar.

Hearing details:

30 August 2019.

By Telephone.

Printed by authority of the Commonwealth Government Printer

<PR712840>

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

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

 6   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 7   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].