Ms Helen Donnelly v Sodexo Remote Sites Australia Pty Ltd T/A Sodexo
[2018] FWC 4999
•29 August 2018
| [2018] FWC 4999 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Ms Helen Donnelly
v
Sodexo Remote Sites Australia Pty Ltd T/A Sodexo
(U2018/6877)
| Deputy President Anderson | Adelaide, 29 August 2018 |
Application for an unfair dismissal remedy – extension of time required - no exceptional circumstances – application dismissed
Ms Helen Donnelly has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Sodexo Remote Sites Australia Pty Ltd (Sodexo or ‘the employer’). She was dismissed on 8 June 2018 and her dismissal took effect that day.
Her application was filed with the Commission on 4 July 2018.
The FW Act requires applications of this type to be filed within 21 days of a dismissal taking effect. The application made by Ms Donnelly is five (5) days out of time. It can only proceed if an extension of time is granted. Ms Donnelly seeks an extension of time.
Sodexo opposes the application and the application for an extension of time.
On 1 August 2018 I directed that the extension of time issue be dealt with at a telephone hearing scheduled for 29 August 2018. I directed Ms Donnelly and Sodexo file materials on the extension of time issue. I have received those materials.
The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):
“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.”
Ms Donnelly’s application can only proceed to determination on the merits if she can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[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.”
I now consider each of the factors set out in section 394(3) of the FW Act.
Reason for the delay (section 394(3)(a))
Ms Donnelly advances two reasons for the delay.
Firstly, she says that she was in a distressed mental and physical state two days prior to her dismissal due to a car accident and that her distress was made worse by her dismissal.
Despite having the opportunity to do so, Ms Donnelly provided no evidence from a treating medial practitioner about her mental or physical state during any period between the date of her dismissal and filing her application. She says that her doctor has been “difficult to locate”. She says that her doctor was not permanently located at the medical centre where she was treated, and she was unaware of that at the time. She says that she has made no appointment with another doctor at that centre because she believes only the initial consulting doctor would understand her circumstances. She has taken no other steps to contact or locate her treating doctor.
It is well established that an applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time.[2]
It is also well established that an applicant for an extension of time seeking to rely on medical circumstances as a reason for delay has an obligation to not only adduce such evidence but for that medical evidence to establish a sufficient connection between that person’s health and well-being and their capacity or incapacity to file proceedings.[3]
Ms Donnelly has done neither.
In these circumstances I have no evidence before me to find that Ms Donnelly’s mental or physical state was an acceptable reason for delay.
Secondly, Ms Donnelly says that she did not know about the 21 day limitation until 3 July, when speaking to a friend. The following day she sought advice from a solicitor and the solicitor then promptly filed this application on her behalf on 4 July.
I accept that Ms Donnelly moved promptly to seek advice and file her application once she learned of the 21 day limitation. I also acknowledge that persons in the community such as Ms Donnelly may not be generally familiar with statutory time limits.
However it is well established that ignorance of the law, in this instance ignorance of the statutory time limit, is not in and of itself an acceptable reason for delay.[4]
The employer says that Ms Donnelly had been a member of a trade union (the AWU) which had represented her industrial interests in the past and she could have been informed of the 21 day limitation by the union. Ms Donnelly says that she resigned from the AWU a month prior to dismissal as she was dissatisfied with the union’s services. In these circumstances, while Ms Donnelly could have contacted a trade union for advice after her dismissal she was not an active member of a union. I do not consider Mr Donnelly’s past membership of a union as a factor weighing against her application for an extension of time given that her union membership was not current at the date of dismissal.
This notwithstanding, neither explanation for the delay provided by Ms Donnelly is an acceptable reason. This is a factor that weighs against granting an extension.
Awareness of the dismissal taking effect (section 394(3)(b))
Ms Donnelly’s dismissal was formally communicated on 8 June 2018 by letter dated 1 June 2018. That letter said that she was dismissed “effective immediately”, that is, 8 June 2018.
I am satisfied that Ms Donnelly was aware of her dismissal taking effect on and from that day.
This is a factor that weighs against granting an extension.
Action taken to dispute dismissal (section 394(3)(c))
There is no evidence before me that between 8 June 2018 and prior to 3 July 2018 inclusive Ms Donnelly took steps to seek out or secure advice about her dismissal or otherwise contest her dismissal or put her former employer on notice that a legal challenge to her dismissal was in contemplation.
This is a factor that weighs against granting an extension.
Prejudice to the employer (section 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances. However, there is no evidence that Sodexo is likely to be prejudiced on account of an application not having been made by the due date. Whilst Sodexo correctly point out that time taken to deal with the extension of time issue could have been productively used to progress the application had it been filed within time, the elapse of that time period in this case has not created material prejudice.
However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension.[5]
On the facts in this case, I consider this to be a neutral factor.
Merits of the Application (section 394(3)(e))
Ms Donnelly’s application asserts that her dismissal for misconduct was unfair in that she disputes the finding of misconduct and in the alternative disputes that dismissal was a proportionate response.
The employer asserts that its decision to dismiss was well-founded and proportionate.
I have not heard evidence at this stage on these competing contentions. I am thus unable to draw any conclusion about the merits of the application.
On the facts in this case, I consider this to be a neutral factor.
Fairness between persons in similar position (section 394(f))
No evidence or submissions from Ms Donnelly or Sodexo raise issues of fairness with and between other persons.
On the facts in this case, this is not a relevant factor.
Conclusion on extension of time
The delay in lodgement is five days. However, having regard to the 21 day statutory time limit, it is not an inconsiderable delay.
In considering whether exceptional circumstances exist, the conduct of Ms Donnelly after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional.[6]
The reasons for delay are unconvincing. They do not adequately explain the delay or periods of the delay.
Weighing the other factors, none lead me to conclude that the circumstances in this matter are exceptional.
Ms Donnelly says that in the interests of fairness she wants her case tested “to clear her name”. An applicant’s desire to contest a conduct based dismissal ‘to clear their name’ is understandable but not unusual. It is a common, not exceptional, feature of proceedings such as these.
Whilst Ms Donnelly has a genuinely felt grievance concerning her dismissal, she has filed proceedings outside the statutory period of time. That time limit has been imposed by the parliament of Australia and requires adherence. The parliament has said that only if circumstances are exceptional can applications out of time be progressed. As has been previously noted by a full bench of the Commission:[7]
“Mere ignorance of the statutory time limit…is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
Ms Donnelly has not demonstrated that exceptional circumstances exist so as to warrant an extension of time.
For these reasons, Ms Donnelly’s application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Accordingly, her application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
H. Donnelly, on her own behalf
S. Edwards, for the Respondent
Hearing details:
2018
Adelaide; by telephone
29 August 2018
[1] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[2] Carlene Daphne Smith v Canning Division of General Practice[2009] AIRC 959
[3] Nicole Pearson v Roberts Limited[2015] FWC 6905
[4] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30]; Linda Connor v Paul Kirk, Roberts & Co[2015] FWC 7335; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 – 300; Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975; Collins v Bunnings Group Limited[2016] FWC 7080
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]
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