Ms Judith Zenchyson v Mater Misericordiae Health Services Brisbane Limited

[2013] FWC 3926

[2013] FWC 3926

FAIR WORK COMMISSION

DECISION

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

Ms Judith Zenchyson
v
Mater Misericordiae Health Services Brisbane Limited
(U2013/5907)

COMMISSIONER SPENCER BRISBANE, 21 JUNE 2013

Application for unfair dismissal remedy - application filed out of time - extension of time - s.394(3) - application originally filed in incorrect jurisdiction.

Introduction

[1] This determination relates to an application made by Ms Judith Zenchyson (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment from Mater Misericordiae Health Services Brisbane Limited (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were issued for the filing of submissions and evidence in relation to the jurisdictional objection; specifically, the parties were referred to s.394(3) of the Act. Material was filed by both parties.

[4] Both parties confirmed that the jurisdictional objection could be determined on the papers without the need for a formal hearing.

[5] It is noted that while I will not refer to all of the evidence and submissions in this matter I have considered all of such in making my determination.

Background

[6] The Applicant commenced employment with the Respondent in 1999. The Applicant was originally employed as a Midwife/Neonatal Nurse on a part-time basis. After several years in this position the Applicant also commenced, in addition to her position as Midwife/Neonatal Nurse, the role of Neonatal Audit Officer.

[7] In December 2006, that Applicant was diagnosed with a serious medical condition for which she underwent chemotherapy and radiation treatment as well as surgery. During this time the Applicant did complete some data entry work “intermittently”.

[8] In 2007 the Applicant returned to work performing a mixture of nursing shifts and data entry work. During this period the Applicant experienced back aches and attended Physiotherapy. The Applicant became unable to work in a standing position.

[9] At this time the Applicant continued working with the data entry work solely. In about 2008 the Applicant commenced full-time work in this position.

[10] In about early 2010 the Applicant returned to nursing in Neonatology at the direction of the Respondent. After a short period in nursing the Applicant again experienced pain. After a period of sick leave the Applicant returned to the data entry/database work for a period of 6 months. After this period the Applicant was again offered to return to her substantive position as a midwife.

[11] At this time the Applicant went on an extended period of leave utilising her personal, annual and long service leave accruals. The Applicant was on leave for approximately 10-11 months at this time. The Applicant stated that during this period of leave she actively sought work with the Respondent and also with external organisations.

[12] The Respondent during this period attempted to consult with the Applicant and her medical advisors as to her capacity to return to work. The Respondent corresponded with the Applicant by way of letter on 13 March 2012 about the Applicant’s “inability to meet the inherent requirements of [her] Midwife role”. This letter was as a result of a medical report following an appointment with the Applicant. Following this correspondence the Respondent sent, on a daily basis, vacant positions to the Applicant for her to consider. The Applicant stated that she did apply for one of these positions but was not successful in receiving an interview.

[13] During this period the Applicant stated that she approached the Medical Director of Neonatology to offer her assistance in the date entry/database work again. The Applicant was offered a 4 month contract for this work. The Applicant stated that she expressed some concerns about this contract.

[14] After the conclusion of this 4 month contract the Applicant was given a further 2 month contract for the position of Badger Business Support Officer. A further 12 month contract for the position of Badger Business Support Officer was advertised on multiple occasions. The Applicant stated that she applied for, was interviewed for and was ultimately unsuccessful in obtaining this further contract. The Applicant stated that she was advised of the outcome of her application for the further contract on 29 October 2012.

[15] The Applicant stated that she was informed by the Medical Director of Neonatology that her work would finish on 31 October 2012. The Applicant’s last day of work was 2 November 2012. The Applicant stated that she was then taking accrued “time off in lieu” up to the final day of work being 9 November 2012.

[16] The Applicant filed a claim for reinstatement with the Queensland Industrial Relations Commission (QIRC). This claim was set down for Conference on 3 January 2013 by the QIRC. Following correspondence from the Commission to the Applicant the jurisdictional issue was identified with the application being finalised on 19 December 2012.

[17] The application, the subject of this decision, was lodged on 24 January 2013.

[18] The Respondent filed a “Form F3 Employer’s Response to Application for Unfair Dismissal” on 11 February 2013. This Form F3 asserted that “Applicant was not dismissed, their temporary contract of employment came to an ended due to effluxion of time” and “Applicant was not dismissed, their temporary contract of employment came to an end due to effluxion of time on 2 November 2012”.

[19] As a threshold question the extension of time objection is to be considered first. If the extension of time is not granted then the further jurisdictional objection becomes irrelevant. This decision deals with the extension of time objection only.

Relevant Provisions of the Legislation

[20] The substantive application has been made pursuant to s.394 of the Act. Section 394, as at the time of dismissal, provided as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as the FWA allows under subsection (3).

(3) The FWA may allow a further period for the application to be made by a person under subsection (1) if the FWA 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.”

[21] The relevant consideration in relation to the jurisdictional objection is s.394(3).

Summary of the Applicant’s Submissions and Evidence

[22] The Applicant filed submissions addressing the criteria in s.394(3) of the Act. The Applicant also filed some correspondence in support of her submissions.

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

[23] The Applicant submitted that the delay was brought about, essentially, due to representative error.

[24] The Applicant submitted that she contacted a legal advisor, who she had previously discussed employment matters with, on 15 November 2012, which was within the statutory timeframe for lodging and unfair dismissal application. The Applicant submitted that she was advised in this conversation to “lodge a claim for Reinstatement of employment with the Queensland Industrial Relations Commission”. This was said to be so because the Applicant was employed as a nurse by the Respondent and that the Solicitor was of the belief that the State Industrial Relations jurisdiction was the appropriate one.

[25] The Applicant included an email from a Solicitor of the Disability Discrimination Advocate Welfare Rights Centre Inc. dated 14 March 2013. This correspondence relevantly stated:

“I honestly believed that your dismissal would be covered by the QIRC given that you worked for the mater Hospital.

It was my assumption that you worked for Qld Health and as such would qualify as a public servant and be covered by Qld State Industrial Relations Law...

I did refer you to Qld Working Women’s for confirmation on this information as this service only offers legal advice on Disability Discrimination matters in the area of unemployment.”

[26] The Applicant stated that she contacted the Medical Director of Neonatology on 29 November 2012, 14 days after the advice mentioned above, to ascertain if she was to be reemployed. After this conversation the Applicant submitted that she filed an application with the QIRC on the 21st day of the date of her termination or the date on which the Applicant understood she was terminated.

[27] The Applicant submitted that it was the recommendation of the Solicitor from the Disability Discrimination Advocate Welfare Rights Centre Inc (DDAWRC) that she should seek advice from the Queensland Working Women’s Service (QWWS) or Caxton Legal Service Incorporated (Caxton Legal). The Applicant also submitted that she did make attempts to seek advice from these services. She did not provide evidence of any attempts to contact QWWS.

[28] The Applicant also submitted that she attempted to contact several private Solicitors but could not afford their service. No evidence of these attempts was provided by the Applicant.

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

[29] The Applicant submitted that she was verbally advised, by the Assistant Director of Neonatology, on 29 October 2012, that she had not been successful in gaining the further contract for the position of Badger Business Support officer.

[30] Further, the Applicant submitted that on 31 October 2012 she was advised by the Medical Director of Neonatology that she would “need to leave” prior to the commencement of the new employee taking over her role. The Applicant submitted that the date of commencement for the new employee was 12 November 2012.

[31] The Applicant submitted that the last day of work was 2 November 2012, with the period after being taken as “time off in lieu”.

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

[32] As stated above the Applicant filed an application in the QIRC seeking reinstatement. The application for reinstatement filed by the Applicant was, according to the Applicant, filed within time. An application for reinstatement under Queensland law must be filed within 21 days.

[33] The Applicant submitted that she also lodged an application, in the Commission, pursuant to s.365 of the Act alleging a breach of the general protections provisions of the Act. The Applicant stated that this was on the “advice” of Caxton Legal. The Applicant submitted that this application was filed on 2 January 2013.

[34] The Applicant submitted that the first time she was able to meet with an employment lawyer was at Caxton Legal on 15 January 2013. The Applicant stated that she was advised at this time to bring an application for unfair dismissal. The unfair dismissal application was lodged on 24 January 2013, some 9 days later.

s.394(3)(d) - prejudice to the employer

[35] In relation to s.394(3)(d) of the Act the Applicant stated that she believed the Respondent has been “involved” since ceasing her employment and aware that she was contesting her dismissal. This was so, according to the Applicant, as she had filed several applications to challenge the dismissal.

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

[36] The Applicant referred to s.386(2)(a) of the Act in regards to the meaning of “dismissed”. The Applicant has not made submissions as to the circumstances of the matter in terms of s.386(2)(a). As stated previously this decision relates to the question of extension of time only.

[37] However the Applicant submitted that she had received a medical clearance to undertake administrative work.

[38] The Applicant further submitted that she had undertaken administrative work, for the Respondent, in various capacities since at least 2004. She also relied upon a discussion she stated occurred with the Medical Director of Neonatology that he had requested additional support from the Respondent to undertake the data entry/database work required. The Applicant has stated however that this request for additional support was denied by the Respondent due to budgetary constraint.

[39] The Applicant also referred to a recently advertised position with the Respondent in Townsville for the work that was being undertaken by the Applicant for the Brisbane area.

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

[40] The Applicant submitted that she is not aware of any person “adequately” performing the role that she performed prior to her termination. The Applicant also relied upon the case authorities of Johnson v Joy Manufacturing 1 and Hooper v Mater Pathology Services2in distinguishing her case.

Summary of the Respondent’s Submissions and Evidence

[41] The Respondent filed submissions in the jurisdictional application as well as affidavits of Ms Suzanne Beuth, Payroll Services Manager, Ms Lynne Elliott, Nursing and Midwifery Director - Neonatal Critical Care Unit and Maternal Fetal Medicine, and Dr David Knight, Director of Neonatology.

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

[42] The Respondent submitted that the reliance of the Applicant upon the initial, incorrect, advice to file within the QIRC jurisdiction amounts to no more than mere ignorance of the statutory time limit for the filing of an unfair dismissal application. The Respondent referred to the case authority of Nulty v Blue Star Group Pty Ltd. 3

[43] The Respondent highlighted that the correspondence from the DDWARC stated that the Applicant was advised that the Solicitor was not conversant in employment law and referred the Applicant to specific advice either at QWWS or Caxton Legal.

[44] The Respondent referred to the timetable of events that fell from the Applicant’s submissions. The Respondent identified a number of periods of time where “no evidence that the Applicant took any action” was provided.

[45] The Respondent submitted that the QIRC application was filed 28 days after, the date that they submitted, the temporary contract came to an end and 15 days after receiving advice from the DDWARC.

[46] In relation to the advice the Applicant received from Caxton Legal the Respondent highlighted the following passage from the correspondence of Caxton Legal of 12 December 2012:

“We do not have sufficient instructions from you to advise whether you have grounds for an adverse action claim. We strongly recommend that you contact Fair Work Australia...in determining whether you are able to make a claim”

[47] The Respondent submitted that no evidence had been provided by the Applicant that any attempt was made to contact FWA. The Respondent submitted that the Applicant did not follow the legal advice provided.

[48] The Respondent submitted that the Applicant’s submission that she attempted to receive advice from Caxton Legal, both via telephone and in person, on several occasions should not be accepted. The Respondent pointed to the letter submitted by the Applicant, from Caxton Legal, dated 16 May 2013. This correspondence confirms that no employment lawyer was available on 27 November 2012 but that an employment lawyer was available on 6 December 2012. The Respondent submitted that the Applicant was also provided with a list of solicitors the Applicant could contact on 12 December 2012.

[49] The Respondent pointed to a lack of evidence provided by the Applicant as to her attempts to seek legal advice from various organisations. The Respondent submitted that it was “highly improbable” that the Applicant was unable to obtain any free legal advice.

[50] The Respondent submitted that the Applicant was aware of her rights and was able to contact FWA to discuss her options from at least 12 December.

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

[51] The Respondent maintained that the Applicant had not been dismissed. As stated above this decision relates only to the extension of time matter at this time.

[52] The Respondent submitted that the employment relationship ended on 2 November 2012. The Respondent provided evidence of conversations between the Applicant and Dr Knight and Ms Elliot to this effect.

[53] The actual date of the end of the employment relationship is in dispute. It is agreed that the Applicant’s final day of work was 2 November 2013. The Respondent has not made any submissions as to the Applicant’s submissions regarding the further period of TOIL and how this may affect the date of dismissal. At the latest though the employment came to an end by 9 November 2012.

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

[54] The Respondent again submitted that the Applicant was not dismissed. The Respondent acknowledged the various applications filed by the Applicant.

s.394(3)(d) - prejudice to the employer

[55] The Respondent submitted that it has had to provide additional resources in order to respond to the Applicant’s applications. The Respondent did not plead any specific prejudice caused by the delay (eg inability to obtain evidence etc) but relied on prejudice to the Respondent in the Applicant’s “failing to discontinue each of the matters”.

[56] The Respondent submitted that the Applicant has ignored the statutory limitations and failed to follow due process and that therefore to grant an extension in those circumstances was a prejudice to the Respondent.

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

[57] The Respondent reiterated the submission that the Applicant’s employment ended due to the end of its fixed period.

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

[58] The Respondent submitted that the Applicant had “numerous pieces of legal advice” and was able to lodge the application on time in the correct jurisdiction or at least, in a much shorter timeframe than was the case.

[59] The Respondent contended that the matter of Johnson 4as relied upon by the Applicant, can be distinguished. The Respondent identified that the Applicant in that matter only filed four days out of time. The Respondent also stated that in that matter Lawler VP, in extending time, found that there was evidence the Applicant had attempted to file within time.

[60] As regards to the Applicant’s reliance on Hooper 5the Respondent submitted that the matter could be distinguished from the present circumstances. The Respondent submitted that the Applicant has stated that she received legal advice on numerous occasions. Importantly the Respondent submitted that once receiving advice from the QIRC that the reinstatement application had been dismissed for want of jurisdiction it was a further 15 days before the Applicant took further action in filing an application pursuant to s.365 of the Act.

[61] As a final conclusion the Respondent submitted that should the Commission grant the Applicant’s application for an extension of time it would set “an unfair and unjust precedent”. Part of the submission in this regard was that it would mean that in future, evidence in chief relied upon by an Applicant could be an email rather than an affidavit, as was submitted by the Applicant here. In this regard however, the Commission notes that the parties were given an opportunity to request that the Commission list the matter for a formal hearing to test the evidence once the material had been filed. The Respondent chose not make such a request. If there had been issues, as identified in the Respondent’s submission above, the Respondent was at liberty to bring the matter on for hearing to test the validity of the evidentiary material.

Consideration

[62] The application was filed on 24 January 2013.

[63] It remains in dispute between the parties as to the actual date that the Applicant’s employment ended. Without making a finding either way it is sufficient for the purposes of this decision to assume that the Applicant’s employment ended, at least, by 9 November 2012. With this in mind, pursuant to s.394(2)(a) of the Act the application must have been made by 23 November 2012. The application was filed 61 days out of time.

[64] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 6 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services7 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)8 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 9

[65] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[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.” 10

[66] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

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

[67] The application filed, on 24 January 2013, with the Commission was 61 days out of time or 75 days from 9 November 2012 (it is acknowledged that this date, being the date of the end of employment, is in dispute).

[68] The Applicant initially, erroneously, filed an application (to dispute the dismissal) in the QIRC on 30 November 2012.

[69] She stated that she first contacted a legal advisor, in relation to the ending of her employment, on 15 November 2012, 6 days after the final day on which she worked. The Applicant had been advised that the lawyer was not a specialist in employment law and she was referred to other sources of legal advice and also to the FWC. There are periods in the delay that cannot be justified as there has not been any activity on the part of the Applicant. The Applicant took a further 15 days to file an application in the Commission pursuant to s.365 of the Act.

[70] The Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 11 considered representative error in terms of an extension of time for an application filed pursuant to s.365 of the Act. While that decision relates to s.366 of the Act it is relevant to a consideration pursuant to s.394(3) of the Act.

[71] In that decision the Full Bench stated:

“[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case 12 in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidsons’s Case13 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case14 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act.15 We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the application was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark’s Case was summarised in Davidson’s Case 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 a 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.””

[72] The Full Bench in D La Rosa v Motor One Group Pty Ltd 16 noted the following extract in regard to representative error causing a short delay as per the current circumstances:

“[31]... in the context of s.170CE of the WR Act:

“As is evident from Clarke, little might be required to satisfy the Commission that the Applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the Applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative.” 17

[73] A representative error, where the Application was blameless, would constitute an exceptional circumstance. 18 When determining whether representative error constitutes an acceptable explanation for delay, the conduct of the Applicant is a central consideration.19 The representative needs to have made an error through no fault of the Applicant, and despite the Applicants efforts to ensure that the claim is lodged.

[74] The current circumstances cannot be described as such where the Applicant was blameless. She was aware that the advice of the lawyer on 15 November 2012 was given in circumstances where a caveat was put on it that the advice was not being given by a specialist in the area of employment law. She was urged to go to alternative sources of advice. She did follow upon these. There are periods of time during the delay that are unexplained or are not evidenced by attempts to pursue her claim. This is not a case where the Applicant was at all time actively pursuing the matter.

[75] While the advice of the first legal advisor, on 15 November 2012, was incorrect, that legal advisor clearly put to the Applicant that she was not specialised in this area and put the onus on the Applicant to confirm the advice with a specialist in the area. This legal advisor took appropriate action in referring the Applicant to seek further advice. This is not a clear case of representative error. The Applicant has contributed to the delay and was appropriately advised to seek further advice which she did not do in a timely fashion.

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

[76] The circumstances as to what forms the last day of work are in dispute. However the Respondent submitted that the finalisation of the employment was aligned to the end of the fixed term contract.

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

[77] Whilst the Applicant has taken action to file in both jurisdictions, her conduct in pursuing the matter, was not discharged actively across the time period of the delay. Particularly once she became aware of the errors in filing.

[78] This element tends against the award of an extension of time.

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

[79] The Respondent submitted it was subject to prejudice in terms of requiring the resources to respond to a clearly delayed application. The prejudice to the Applicant would be the loss of opportunity.

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

[80] In the matter of Kornicki v Telstra-Network Technology Group 20the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). Whilst the case does not form part of the present provision, the authority remains relevant to this consideration. In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 21

[81] I adopt the reasoning of the Full Bench of the former Commission, however the merits of this matter cannot be determined on the current material and would require the assessment of sworn evidence. Accordingly no weight has been placed on this criteria at this time.

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

[82] The other Applicants’ circumstances referred to by the Applicant in cases cited can be distinguished in terms of the period of delay and related activity of the Applicants in those matters during the period of delay.

Conclusion

[83] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Tribunal of their case. In the current circumstances whilst it was recognised that the Applicant relied on legal advice that was provided to her, her actions at various times have contributed to the delay. Principally the delay occasioned after the dismissal of the QIRC application.

[84] I have considered the case authorities in relation to ‘exceptional circumstances’. On the material currently before the Commission it has not been demonstrated, in terms of the entire period of the delay, that ‘exceptional circumstances’ have arisen.

[85] The Applicant has not demonstrated that there are exceptional circumstances sufficient to warrant the exercise of the discretion to extend time. I refuse the application for an extension of time. The Applicant has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed. I Order accordingly.

COMMISSIONER

 1   Lawler VP, [2010] FWA 1394.

 2   Spencer C, [2012] FWC 2013.

 3   [2011] FWAFB 2728 at [14].

 4   [2010] FWA 1394.

 5   [2013] FWC 2013.

 6   Fair Work Act 2009 (Cth) s.394(3).

 7  Wheelan C, [2009] FWA 1638, [30] and [31].

 8   Lawler VP, [2010] FWA 1394.

 9   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 10   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 11   [2011] FWAFB 2728.

 12 (1997) 74 IR 413.

 13   Print Q0784.

 14   [2011] FWAFB 466.

 15 Ibid at [35].

 16   PR924583, decision of Watson SDP, Kaufman SDP and Foggo C, 12 November 2002.

 17   PR924583 at para 24.

 18   M N Robinson v Interstate Pty Ltd[2011] FWAFB 2728.

 19   Clarke’s Case (1997) 74 IR 413; Davidson’s Case Print Q0748; Alicia Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley [2012] FWA 9043.

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

 21   Ibid.

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