Ms Jodi Johansen v US Group Pty Ltd T/A CMR Personnel

[2016] FWC 5728

[2016] FWC 5728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Jodi Johansen
v
US Group Pty Ltd T/A CMR Personnel
(U2016/2967)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 7 OCTOBER 2016

Application for relief from unfair dismissal—jurisdictional objection—extension of time refused—application dismissed.

[1] Ms Jodi Johansen was employed as a Site Co-ordinator/Training and Resource Consultant with US Group Pty Ltd T/A CMR Personnel (CMR Personnel). Ms Johansen was dismissed from her employment by CMR Personnel on 30 May 2016 as her position had been made redundant.

[2] Ms Johansen alleged the termination of her employment by CMR Personnel was unfair as she had been advised she would be redeployed within the business and that the redundancy was not genuine.

[3] Ms Johansen’s unfair dismissal application, lodged on 21 June 2016, was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[4] CMR Personnel filed a response to Ms Johansen’s application on 28 June 2016 objecting to the application on the basis that the dismissal was a case of genuine redundancy.

[5] Ms Johansen attended a jurisdictional hearing before me on 15 July 2016 and gave oral evidence on her own behalf in addition to her written submission.

[6] Prior to the hearing, I had refused permission for Ms Johansen to be legally represented. I did not accept the submission that it would enable the matter to be dealt with more efficiently given the complexity of the matter. This application did not involve any complex factual matters and the legal principles are well settled and not complex.

[7] Mr Xavier Miller, Human Resources Manager, appeared and gave evidence on behalf of CMR Personnel.

[8] On 12 July 2016, Mr Miller filed submissions and a witness statement of Mr Amnon Kelemen of Employee Assist.

[9] On 13 July 2016 Ms Johansen filed a Form F51 Application for an Order requiring a person to attend the Fair Work Commission in relation to Mr Kelemen. I issued the Order that day and Mr Kelemen attended the hearing and gave evidence.

[10] This decision is about whether the Fair Work Commission (Commission) should allow Ms Johansen a further period for lodgement of her application for an unfair dismissal remedy.

Extension of Time

[11] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[12] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[13] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” [Endnotes not reproduced]

[14] There was no factual dispute that Ms Johansen had filed her application out of time.

s.394(3)(a) the reason for the delay

[15] Ms Johansen’s application was filed 22 days after the date of her dismissal. Ms Johansen must provide a credible reason for the delay in making the unfair dismissal application. 2

[16] Ms Johansen must provide a credible reason for the whole of the period that the application was delayed. 3 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.4

[17] The Full Bench in Ozsoy v Monstamac Industries Pty Ltd (Ozsoy), 5 described the reason for the delay in the following terms:

“[31]… The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.” 6 [Endnotes not reproduced]

[18] The Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank, 7 was summarised by Deputy President Clancy in Collins v Bunnings Group Limited T/A Bunnings Warehouse 8 as follows:

“[12] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank, Vice President Watson and Deputy President Smith re-emphasised the point made in Ozsoy:

‘The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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.’

[13] Finally, the Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic (Diotti):

‘…while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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.’”[Endnotes not reproduced]

[19] In accordance with the principles summarised above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. 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 whether that reason constitutes exceptional circumstances.

[20] Ms Johansen submitted the reason her application was made more than 21 days after her dismissal was due to possible representative error. 9 Ms Johansen submits after making a number of inquiries to the Fair Work Ombudsman, Job Watch and independent solicitors, she engaged Mr Amnon Kelemen, Director of Employee Assist to represent her.10

[21] Ms Johansen also submits another reason for her delay was she had limited mobility due to reconstructive surgery on her left foot. Ms Johansen submits she was also undergoing psychological treatment as she was not coping with her loss of independence and the issues at hand. 11

Representative Error

[22] Ms Johansen’s submission was that she had spoken to Mr Kelemen on 6 June 2016 and subsequent to that conversation, she sent him a copy of her contract. Later that day after receiving a reply email, she sent a copy of her termination letter. 12

[23] In her witness statement, Ms Johansen submits Mr Kelemen stated “he would be in touch to provide her with the next steps.” 13 Ms Johansen’s submission was from that day she had no further contact with Mr Kelemen.

[24] Ms Johansen’s oral evidence was she had spoken to Mr Kelemen on 6 June 2016, he sent her a “principle email” 14 requesting she submit her evidence and that was the last she heard from him. She had made several attempts to contact Mr Kelemen and he had refused to return her calls and her emails.15

[25] Ms Johansen tendered a document that she says was a redacted version of her mobile phone records. 16 When questioned during cross-examination, Mr Kelemen contested the authenticity of the records provided by Ms Johansen, submitting that the records provided details of outgoing calls only and were obviously extensively edited. Ms Johansen agreed the records showed only outgoing calls and said she was unable to obtain records of incoming calls.

[26] Ms Johansen referred to the 1800 numbers she had called on 6 June 2016 in support of her submission that there had been a phone conversation with Mr Kelemen. Ms Johansen says during the call Mr Kelemen agreed to take on her case. I note the phone records indicate the call lasted for 23 seconds. 17

[27] Ms Johansen said she rang Mr Kelemen’s office on 17 June 2016 at 3:30pm and left a voicemail message. I note the phone records detailing a call to the same 1800 number at this time was for a total duration of 29 seconds. Ms Johansen said she then rang Mr Kelemen’s mobile and left another voice message and neither of these calls were returned by Mr Kelemen. 18

[28] Ms Johansen said she contacted Employee Assist again on 21 June 2016 at 2:12pm and Mr Kelemen refused to speak to her on the phone. She said she was informed by his associate that, as previously advised by Mr Kelemen, he was not able to take on her matter. 19 Ms Johansen stated when she did finally speak to an associate at Mr Kelemen’s office, her time limit for lodging her application was up as she was one day outside of submitting her application.20

[29] Ms Johansen said she had not previously been told by Mr Kelemen or his associate that he would not represent her. Ms Johansen said had Mr Kelemen told her during their 6 June 2016 conversation that he was not going to get the case up and running, she would have continued to look for someone else to take on her matter. 21

[30] Ms Johansen’s submission was she had made numerous attempts to contact Mr Kelemen both at his office and on his mobile phone leaving several messages on 15, 16, 17 and 20 June 2016.

[31] Ms Johansen tendered an email she sent on 14 June 2016 requesting a response to her query as to where her case was at, to which she did not receive a reply. 22 The email states verbatim:

“Hey Annon, I am yet to hear from u and realky need an answer if you are taking on my case. I only have 21 days To lidge application really need an answer today.” 23

[32] Ms Johansen gave the following evidence:

“I’ve tried to obviously track down Mr Kelemen to get an answer as to where we’re at, as to whether I needed to seek other legal advice and I did not get an answer back until after- until my submission date when I spoke to him at approximately quarter past two that day where I was advised by his Associate that he would not be representing me. I then rang the Fair Work Commission and I was advised that I had to submit it by 5 o’clock today by that date, and I sent to extreme measures to try and submit it myself not knowing whether I’d submitted it properly or not.” 24

[33] Ms Johansen says once she had received the advice that Mr Kelemen was too busy to take her case, she called the Commission and was advised she had until 5pm that day to submit her application. Ms Johansen later conceded she had not called the Commission and had in fact called Job Watch. 25

[34] Ms Johansen then went on to say she submitted her application on day 21 at around 5:10pm. 26

[35] Ms Johansen said until the phone call on 21 June 2016 she was under the impression Mr Kelemen was taking her case stating:

“Well I was under the impression. He gave me no indication that he wasn’t taking on my case. His words to me was that he would be in touch if there was any issues. I assumed there was no issues, because he was never in touch with me. I tried to contact him on several occasions to find out where we were at, and never received a phone call back. So I assumed, that he was lodging the paperwork and that everything was under control because he had not requested any further information from me.” 27

[36] Mr Kelemen’s oral evidence was that at no time had he accepted Ms Johansen’s instructions and he refutes the assertion by Ms Johansen that he, at any time, gave her the impression he was accepting her instructions. Mr Kelemen said he had told Ms Johansen he would not be taking the matter on. 28

[37] Mr Kelemen said he had spoken with Ms Johansen for five minutes during a second call on 6 June 2016 at which point he had informed her the matter had limited prospect of success.

[38] Ms Johansen says she never had a second conversation with Mr Kelemen on that day.

[39] Mr Kelemen said he had received an email on 14 June 2016 from Ms Johansen and due to earlier interactions with her on 6June 2016, in which he says she was less than complimentary, abusive and threatening, he didn’t consider it worthy of his time to respond. 29 Mr Kelemen also stated the following:

“Simply because of my previous interaction with her and the nature of that phone call on the 6th. I had already wasted enough of my time and had been spoken to in a manner that nobody would accept being spoken to on the phone, and when I received this I simply looked at it and pressed delete.” 30

[40] Mr Kelemen’s evidence was there was nothing in writing or otherwise to confirm with Ms Johansen that he had not accepted her instructions. Mr Kelemen didn’t see this as necessary as he had not provided her with any confirmation, in writing or otherwise, that established he had taken her instructions. 31 Mr Kelemen said it was obviously clear to Ms Johansen that he hadn’t accepted her case by the questions she posed in her email of 14 June 2016.32

[41] Mr Kelemen said he agrees his lack of response to Ms Johansen had left her in limbo in the sense that she did not know one way or the other whether she was being represented or not. It was put to Mr Kelemen that knowing Ms Johansen was in limbo, why didn’t he, in his professional capacity, respond to her. Mr Kelemen stated in response:

“… In hindsight I probably should have and I will concede that in my professional capacity it was - it does not cover me in glory. But again I think it needs to be understood in the context of my prior discussions and if I had received a communication from Ms Johansen which put me on notice that she had in fact understood that I had taken her instructions, I certainly would have responded to that to clarify it. But this email reads very clearly that she does not know one way or another and so I simply ignored it.” 33

[42] Ms Johansen submits she thought that Mr Kelemen was legally qualified and consequently relied on his professional obligation to her. Mr Kelemen in response said Employee Assist was not a law firm, that that information is explicitly set out on their website, and had she completed the engagement process she would have received terms and conditions of engagement that clearly set out that Employee Assist was not a law firm. 34

[43] Mr Kelemen gave evidence that Ms Johansen’s original contact with him was via an online inquiry which was made at 1:34pm on 6 June 2016. 35 Ms Johansen originally denied making the inquiry and later conceded that it was possible that she had.36

Limited mobility

[44] In support of her reason that she had limited mobility Ms Johansen tendered a medical certificate which states she was not fit for work from 6 April 2016 to 4 July 2016. 37 She also tendered a Centrelink medical certificate which states Ms Johansen “can’t walk without her boot.38

[45] Ms Johansen said she was confined to a wheelchair for the first eight weeks after her surgery and she didn’t have access to a computer at home. Ms Johansen stated:

“Well, I didn’t have access to a computer at home so I had to go elsewhere to lodge my application and everything like that, which made it very, very difficult for me to submit everything that was needed- required” 39

[46] CMR Personnel submit the medical evidence relied upon by Ms Johansen does not establish she was so incapacitated during that period that she couldn’t lodge her application. She was able to make inquiries about representation during this period and her own evidence was that she had sent emails and documents to Employee Assist. Further to this it did not prevent Ms Johansen from emailing a letter of demand for $5,100 to CMR Personnel on 6 June 2016. As such, CMR Personnel submit Ms Johansen’s medical conditions cannot be accepted as a valid reason for her delay in making and unfair dismissal claim. 40

Considerations

[47] There were a number of facts in contention between the parties in this matter relating to the reliance on representative error as a reason for the delay and the events of 6 June 2016 in particular. Ms Johansen’s evidence was during her initial conversation with Mr Kelemen, he had given her a commitment however on the evidence provided this conversation took less than the 29 seconds it took for her to leave a message at a later date. Mr Kelemen on the other hand says he had a five minute conversation with Ms Johansen later on 6 June 2016 to which Ms Johansen denies. Ms Johansen did not recall making an online inquiry to Employee Assist that day, however later conceded it may have been possible.

[48] In McConnell v A and P M Fornataro, 41 the Bench accepted the approach to representative error which was held in Clark v Ringwood Private Hospital (Clark),42 and later summarised in Davidson v Aboriginal and Islander Child Care Agency, 43 as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

‘(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[49] Although I found Ms Johansen to be genuine, her evidence was at times inconsistent.

[50] In cross examination it was put to Ms Johansen her phone records do not match her submissions, being that she contacted Mr Kelemen on 15, 16, 17 and 20 June 2016. Ms Johansen said she made the 20 June 2016 call from her home phone and could not provide records to support her submission. Ms Johansen later withdrew that she had attempted to contact Mr Kelemen on that day. 44 Ms Johansen provided no explanation for the other discrepancies.

[51] Ms Johansen’s evidence was she was able to make her submissions in this matter using her phone. Ms Johansen had internet and email access on her phone and all her communication and emails to Mr Kelemen were made from her phone. 45 Ms Johansen’s evidence during the hearing was that she had made inquiries, sent emails, and documents in support of her application by phone. Therefore, I do not accept Ms Johansen reliance on the reason that she did not have access to a computer contributed to her delay in lodging her application.

[52] In cross examination Ms Johansen conceded she was not sure if Mr Kelemen was taking on her case as she had not heard from him. She attempted to contact him by email on 14 June 2016 to ascertain if he was taking her case on and whether or not he had lodged her application. 46 Ms Johansen later said:

“So my email on the 14th I’m asking him ‘Are you definitely taking on my case?’ because he hadn’t said no to me, and then my second point to that is ‘Well, where is the case at? Where are we at?’ That is the way it was meant to read. That is the way I wrote it, questioning him as to ‘I haven’t heard anything from you. I’m under the impression that you’re definitely taking it on. I’ve heard nothing back from you. Where are we at with the case?’” 47

[53] Ms Johansen then gave evidence she was unsure and “started to have doubts” 48 on 14 June 2016 as to whether or not Employee Assist were representing her as she had not heard back from Mr Kelemen.

[54] Ms Johansen’s evidence was that she was well aware she had 21 days to lodge her application and she became aware of this as early as 3 June 2016. 49

[55] Ms Johansen had considered the possibility of needing to seek alternative legal advice when she couldn’t contact Mr Kelemen. Even though Ms Johansen, by her own admission, began to have doubts about her representation, she took no immediate steps to lodge her application.

[56] Ms Johansen waited until she made contact with Employee Assist on 21 June 2016 to take any further steps to lodge her application.

[57] Ms Johansen made inquiries with Job Watch that same day and gave evidence she was aware she still had until the end of the business day to lodge her application however she chose not to do this until the next day.

[58] I have considered all of the evidence before me and find that from 14 June 2016 it was open to Ms Johansen to pursue an alternative path to making her application for unfair dismissal remedy. Ms Johansen was aware of this and chose not to pursue alternatives and therefore I do not accept that Ms Johansen is blameless when it comes to apportioning responsibility for the reason for the delay.

[59] I have also considered the conduct of Mr Kelemen. Ms Johansen relies on an absence of confirmation from Mr Kelemen as part of her reason for delay. Although his conduct may have lacked professional courtesy, in the absence of any form of confirmation, Ms Johansen had formed her own doubts as to whether or not Mr Kelemen was representing her and took no alternative action to pursue her claim.

[60] There was an absence of evidence to support her submission that there was a basis to the belief she held that Mr Kelemen had agreed to represent her. There’s no evidence before me that Ms Johansen gave clear instruction to Mr Kelemen to lodge her application. Therefore, I am not satisfied the reason Ms Johansen relies on, being representative error, provides an acceptable explanation for the delay.

[61] Ms Johansen did not provide evidence to support her reason that she was suffering psychologically. I have considered the medical evidence provided and weighed this against the actions of Ms Johansen during the period she claims to have been incapacitated. It is clear the physicality of having to wear a boot and not being able to bear weight did not prevent Ms Johansen from pursuing her claim. I am not satisfied on the evidence before me that Ms Johansen has provided exceptional circumstances for the whole of the delay. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[62] Ms Johansen was notified of her dismissal on 30 May 2016 and was aware of its immediate effect. As Ms Johansen was aware of the dismissal on the day it took effect, she had the full 21 days from the date of termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[63] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 50

[64] CMR Personnel submit Ms Johansen engaged in conversation with them by telephone on 3 June 2016 regarding her concerns as to not being redeployed, however she prematurely disconnected the call resulting in no resolution. CMR Personnel submit that consequently this factor should not support a finding of exceptional circumstances. 51

[65] Ms Johansen submits she made numerous attempts to engage professionals to assist her with lodging her application.

[66] Apart from lodging her unfair dismissal application and her attempts to engage professional assistance in support of her lodging her application, there was no other evidence Ms Johansen had taken any steps to contest her dismissal. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[67] Prejudice to the employer will go against the granting of an extension of time. Likewise the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. CMR Personnel submit they will suffer prejudice in defending the claim. Defending a claim will cause some degree of concern to an employer however I do not consider defending a claim against an application for unfair dismissal in the current circumstances would cause a prejudice such to warrant consideration. Therefore I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[68] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 52 it 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.”

[69] CMR Personnel submit the CMR Personnel Training site where Ms Johansen worked was shut down on 21 April 2016 due to their business partners terminating the referral agreement. Ms Johansen managed the site and consequently her role was made redundant.

[70] CMR Personnel submit they consulted with affected employees, and Ms Johansen, by agreement, was moved to the Hawthorn site to complete some work until 30 May 2016.

[71] CMR Personnel submit on 25 May 2016 Ms Johansen indicated she was not interested in redeployment and at the time of her redundancy there were no suitable redeployment opportunities available.

[72] Ms Johansen submits she was the only staff member who was not offered redeployment and a position she was more than capable of performing was advertised less than 48 hours after she was made redundant.

[73] CMR Personnel submit the role Ms Johansen refers to was not available at the time she was made redundant. CMR Personnel submit they held discussions with Ms Johansen after she became redundant and offered her the role and she had declined, indicating she had no desire to continue employment with them.

[74] Ms Johansen’s submission included a copy of an email sent from CMR Personnel to Ms Johansen in which it states should the position become available, it would be offered to Ms Johansen and she was to contact CMR Personnel if she was interested.

[75] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 53 for the purpose of determining whether to grant an extension of time to an applicant to lodge an application.

[76] I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[77] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 54 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, 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.”

[78] In considering this criterion, CMR Personnel rely on the decision of Dain v Bradley and Grant, 55 in which Deputy President Booth referred to the decision of Brisbane South Regional Health Authority v Taylor56 where McHugh J said:

“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

[79] CMR Personnel submit that allowing the application to proceed would not be fair to them and would be unfair to those in similar position to Ms Johansen whose applications have (rightly) been dismissed due to a lack of exceptional circumstances.

[80] They also submit Ms Johansen has not met the positive burden of demonstrating that her case is a justifiable exception to the rule by failing to provide a reason which demonstrates her reason for late lodgement was either unusual, special or uncommon.

[81] Ms Johansen submits that in her circumstances it would be unfair not to grant an extension of time.

[82] In the absence of submissions that there were other person’s in a similar position to Ms Johansen, I find the criterion to be neutral.

Conclusion

[83] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Ms Johansen’s application to be made. Ms Johansen has not provided a reasonable explanation for the whole of the delay. Ms Johansen’s application for an extension of time is refused and her unfair dismissal application is therefore dismissed.

[84] An order 57 dismissing Ms Johansen’s application will accompany this decision.

COMMISSIONER

Appearances:

J Johansen on her own behalf

X Miller on behalf of US Group Pty Ltd T/A CMR Personnel

Hearing details:

2016.

Melbourne:

July 15.

 1   [2011] FWAFB 975.

 2   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 4   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 5   [2014] FWCFB 2149.

 6   Ibid at [31]

 7   [2016] FWCFB 287.

 8   [2016] FWC 7080

 9   Exhibit A1.

 10   Exhibit A1.

 11   Exhibit A1.

 12   Exhibit A1 at paragraphs 6, 7 and 8; Exhibit A3; Exhibit A7.

 13   Exhibit A1 at paragraph 6.

 14   Transcript of Proceedings PN95.

 15   Transcript of Proceedings PN95.

 16   Exhibit A2.

 17   Exhibit A2.

 18   Transcript of Proceedings PN155.

 19   Transcript of Proceedings PN173.

 20   Transcript of Proceedings PN96.

 21   Transcript of Proceedings PN96.

 22   Exhibit A3.

 23   Exhibit A3.

 24   Transcript of Proceedings PN134.

 25   Transcript of Proceedings PN254.

 26   Transcript of Proceedings PN137 - PN138.

 27   Transcript of Proceedings PN212.

 28   Transcript of Proceedings PN365-PN366.

 29   Transcript of Proceedings PN374.

 30   Transcript of Proceedings PN383.

 31   Transcript of Proceedings PN378.

 32   Transcript of Proceedings PN386.

 33   Transcript of Proceedings PN392.

 34   Transcript of Proceedings PN420.

 35   Transcript of Proceedings PN430 - PN448.

 36   Transcript of Proceedings PN453.

 37   Exhibit A5.

 38   Exhibit A6.

 39   Transcript of Proceedings PN229.

 40   Exhibit R2.

 41   [2011] FWAFB 466.

 42 (1997) 74 IR 413.

 43   Print Q0784, 12 May 1998 per Ross VP, Watson SDP and Eames C.

 44   Transcript of Proceedings PN260.

 45   Transcript of Proceedings PN233-PN235.

 46   Transcript of Proceedings PN257.

 47   Transcript of Proceedings PN271.

 48   Transcript of Proceedings PN273.

 49   Transcript of Proceedings PN218.

 50   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 51   Exhibit R1.

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

 53   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 54   [2015] FWC 8885 at [29].

 55   [2012] FWA 7276 at [12].

 56 (1996) CLR 541.

 57   PR586241.

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