Ms Isabella Maiorana v Sunset West Enterprises Pty Ltd T/A Beacon Lighting Myaree

[2016] FWC 6915

[2016] FWC 6915

FAIR WORK COMMISSION

DECISION

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

Ms Isabella Maiorana
v
Sunset West Enterprises Pty Ltd T/A Beacon Lighting Myaree
(C2016/5341)

COMMISSIONER SAUNDERS NEWCASTLE, 27 SEPTEMBER 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 Isabella Maiorana (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 27 September 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 relied on its written and oral submissions.

Legislative Scheme

[5] 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.”

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

[7] 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

[8] 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

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

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8

[11] 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. 9 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:10

“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

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 15 August 2016.

[13] The 21 day time period for the applicant to make her Application expired on 5 September 2016. 11 Given that the applicant filed her Application on 6 September 2016, the Application was one day late.12

[14] In accordance with the principles summarised in paragraphs [8] to [11] 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 5 to 6 September 2016. However, the circumstances from the time of the dismissal (15 August 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.

[15] The applicant explained her delay in making her Application in the following way in section 1.4 of her Application dated 6 September 2016:

“Today is now the 22nd calendar day. I have tried so hard to get it in on time however I did have trouble communicating with the Employment Law Centre as they were moving offices at the time and I was waiting to hear from them. They got back to me late last Wednesday now it’s my mistake, I thought their office was open on Friday but I had to wait now until the Monday, which I was then contacted late about the issue. So I had yesterday to finish it and email it through by 12, but I filled out the wrong claim form and then my laptop froze and I had zero disk space. By this time it was 11:55pm. So today I found the right form and have purchased a hard drive for my laptop space.”

[16] In her outline of argument, the applicant described the reasons for her delay as follows:

“4. My application was filed out of time for the following reasons:

4.1 I needed to obtain free legal advice prior to lodging my application and had difficulty doing so;

4.2 I was advised by the FWC that I had until midnight 5 September 2016 to submit my application;

4.3 I made every effort to do this, however I was confused about the correct form to fill out and initially filled out the wrong form; and

4.4 I had technical difficulties in that my laptop froze and I did not have enough disk space to save the document.

5. The next day I located the correct form and purchased a hard drive to increase storage space on my laptop. I then submitted my application as soon as practicable.”

[17] The applicant gave oral evidence that she first made contact with the Commission and the Employment Law Centre on 16 August 2016, one day after her dismissal.

[18] It is clear that, at some time prior to the expiry of the 21 day time period, the applicant became aware that there was a time period and it would expire at midnight on 5 September 2016. Even if she had not been so aware, ignorance of the 21 day timeframe is not an exceptional circumstance. 13

[19] The applicant has not alleged that any representative engaged by her made an error which resulted or contributed to her Application being filed one day late.

[20] Although I have some sympathy for the applicant, the matters she relies on, as set out in paragraphs [15] and [16] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon. I find that this factor (s.366(2)(a)) 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] In her termination meeting the applicant stated that she believed she had been dismissed due to the number of sick days taken by her. By doing so, she took action to dispute her dismissal.

[23] 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 No such evidence was adduced by the respondent in this case.

[27] The period of the delay in this matter was 1 day. That is obviously a short period of delay.

[28] In all the circumstances of this case, 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 because she took sick leave. The respondent denies the applicant’s allegations.

[30] The resolution of the contested factual question concerning the reasons 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

[31] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 19considered this criterion and said (at [29]) “cases of this kind will generally turn 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 matters currently before the Commission or matters which had been previously decided by the Commission”.

[32] 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

[33] Having taken into account the matters referred to in paragraphs [12] to [32] 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.

[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application is dismissed

COMMISSIONER

Appearances:

Ms I Maiorana on her own behalf;

Mr J Sanders, solicitor from MST Lawyers, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

September, 27.

 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   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C,

21 November 2000) Print T3496 at [24].

 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   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]

 10   [2016] FWCFB 349 at [31]

 11   That is, 21 days from 15 August 2016 (not including 15 August) is 5 September 2016.

 12   That is, 6 September 2016 is one day after 5 September 2016.

 13   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 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   [2015] FWC 8885

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