Ms Janine Mohn v Decon Technologies Pty Ltd
[2023] FWC 900
•18 APRIL 2023
| [2023] FWC 900 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Janine Mohn
v
Decon Technologies Pty Ltd
(U2023/1795)
| COMMISSIONER PLATT | ADELAIDE, 18 APRIL 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
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 Mohn a further period for her unfair dismissal application (Application) to be made against Decon Technologies Pty Ltd (Decon).
Background
Ms Mohn’s application identified that the date of termination was 17 January 2023. Her s.394 unfair dismissal application was lodged on 6 March 2023.
The application recognised that it was made beyond 21 days from the date of dismissal.
Decon contend that the employment relationship ceased on 23 January 2023.
On 27 March 2023, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 12 April 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.
Hearing
A Hearing was conducted by way of telephone conference on 12 April 2023. A recording of the Telephone Hearing was kept.
Ms Mohn represented herself. Mr Matheson represented Decon.
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). A revised medical certificate from Dr Jason Miller was provided after the Hearing commenced.
Ms Mohn gave evidence at the hearing; her relevant evidence is summarised below.
A chronology of the relevant events distilled from the evidence is detailed below:
· On 24 October 2021, Ms Mohn commenced employment with Decon.
· On 29 November 2023, Ms Mohn lodged a s.372 Application against Decon.
· A conciliation for the s.372 Application was conducted on 9 January 2023.
· Ms Mohn contended she resigned on 16 January 2023.
· On 23 January 2023 at 3.07pm, Ms Mohn sent an email to Mr Brett Matheson which included the following statement ‘I’d like to advise you that I am resigning effective from today 23/01/23 as project coordinator at Decon.’
· In early February 2023, Ms Mohn secured alternative employment.
· On 20 February 2023, further mediation was conducted in respect of the s.372 Application.
· On 6 March 2023, Ms Mohn emailed Decon and advised that she would take the matter further.
· This application was filed on 6 March 2023
Ms Mohn contends that ‘My mental health and physical well being suffered significantly during this ordeal exacerbating illness, this has impacted my cognitive capacity to make the application within the period between termination and lodgement’. At the Hearing, Ms Mohn contended that difficulties associated with navigating the FWC website and the demands of her new employment also impacted on her capacity to file her application.
Ms Mohn submitted a document written by Dr Jason Miller, dated 12 April 2023, which stated ‘I am writing in support of Ms Janine Mohn, who has been a patient of this clinic for the past four years. In the past six months, Janine has been under a lot of stress which has impacted he pre-existing health issues. This has resulted in a transiently diminished cognitive capacity and impairment of her usual work capacity….”. Dr Miller was not present at the Hearing.
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
Paragraph 394(3)(a) - reason for the delay
I find that the employment ceased on 23 January 2023, as detailed in the email of that date sent by Ms Mohn to Decon. I do not accept Ms Mohn’s submission that the email inferred that the date of effect of the resignation would be subject to the completion of a two week notice period. There was no evidence to suggest Ms Mohn resigned on a date earlier.
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.[5] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] 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.”
In this case the delay is the period between 13 February 2023 and 6 March 2023.
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:[7]
“[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 v 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.”
I accept that Ms Mohn would have been suffering from stress associated with her employment situation and the conduct of her s.372 application. This of itself does not give rise to exceptional circumstances. Unfortunately, the medical information provided does not explain how a ‘a transiently diminished cognitive capacity and impairment of her usual work capacity’ would impair the lodgement of Ms Mohn’s unfair dismissal application or the times when the diminished cognitive capacity and/or impairment occurred. Ms Mohn gave evidence of suffering from ‘brain fog’.
I note that Ms Mohn was able to continue to pursue her s.372 application by participating in mediation on 20 February 2023, and corresponding with Decon on 6 March 2023. In addition, Ms Mohn was able to apply for, and secure, alternative employment in early February 2023.
In my view the capacity of Ms Mohn to engage in the s.372 process, seek and obtain alternative employment, indicates a level of cognitive function that would have permitted the filing of an unfair dismissal application.
I am not persuaded that the unspecified difficulties in navigating the FWC website is a creditable reason for the delay.
Taking the entirety of the explanation into account Ms Mohn has not provided a credible reason for the delay in filing the application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Ms Mohn should have been aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
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.[8]
Ms Mohn continued to press for a resolution of her s.372 claim, which I expect remains available for her to pursue. This matter is, however, different in character to a complaint that Ms Mohn was unfairly dismissed by Decon.
This factor is a neutral consideration in respect of the granting of 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.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
There is no submission that the granting of an extension of time represents prejudice to Decon.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, 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 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”.[11]
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. As 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 not persuaded, on the 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 reflecting this decision will be issued.[12]
COMMISSIONER
Appearances (by telephone):
Ms Mohn the Applicant.
Mr Matheson for the Respondent.
Hearing details:
2023.
Adelaide:
April 12.
[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] 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]
[6] [2016] FWCFB 349
[7] [2018] FWCFB 3288 at [35]-[45]
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[9] Ibid
[10] Ibid
[11] [2016] FWCFB 6963
[12] PR761151
Printed by authority of the Commonwealth Government Printer
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