Ms Nan Mu v The Trustee for Addisons Advisory Trust T/A Addisons Advisory Group

[2018] FWC 2038

[2018] FWC 2038

FAIR WORK COMMISSION

DECISION

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

Ms Nan Mu
v
The Trustee for Addisons Advisory Trust T/A Addisons Advisory Group
(C2018/699)

COMMISSIONER CIRKOVIC MELBOURNE, 2 MAY 2018

Application to deal with contraventions involving dismissal.

[1] Ms Nan Mu (“the Applicant”) alleged that the termination of her employment was in breach of the general protections provisions of the Fair Work Act 2009. The Trustee for Addisons Advisory Trust (“the Respondent”) denies the allegation.

[2] The Applicant, in her application, said she was dismissed on 19 January 2018. The Respondent submits in its Form F8A that the Applicant was made redundant on and effective from 19 January 2018. Therefore there is no dispute as to the effective date of dismissal. The Applicant filed her general protections application on 12 February 2018 meaning that it was lodged 3 days outside of the statutory period of 21 days.

[3] The matter was listed for a telephone hearing on 19 March 2018. A notice to that effect was sent to the Applicant on 5 March 2018. On 5 March 2018 the Applicant received directions to file submissions regarding an extension of time. The Applicant did not file any material in accordance with the directions. On 19 March 2018 the Applicant did not attend the hearing by telephone. On 23 March 2018 my associate sent an e-mail to Ms Mu explaining that the Respondent had made a s.399A application to dismiss her application. My associate directed the Applicant to file evidence, such as a medical certificate, explaining why she had not made submissions and failed to attend the telephone hearing. On the basis that the Applicant was not seeking an order under Division 4, the s.399A application was unable to progress. On 12 April 2018 my chambers sent the Applicant a letter by email and express post giving the Applicant seven days to provide an explanation as to why she failed to attend the previous telephone hearing. On 20 April 2018 the Applicant did not provide a response to chambers so I have decided to determine the matter on the papers.

[4] In her Form F8 the Applicant listed the following factors as reasons behind the delay:

•  she was feeling “terrible, both mentally and physically;”

•  she has been experiencing depression and morning sickness; and

•  she had previously lodged an unfair dismissal application but had been advised by the Commission that a general protections application would be more appropriate. 1

[5] The Respondent opposed the Applicant being granted an extension of time.

[6] The Commission can extend time for the lodging of a general protections 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. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd where 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]

(a) the reason for the delay;

[8] Apart from the Applicant’s outline in section 1.4 of her Form F8, the Applicant provided no evidence to show exceptional circumstances behind her application not being lodged within 21 days. On the material before me, I am unable to make findings as to the extent, if any, these factors impacted on the Applicant’s ability to lodge her application within the 21 day requirement. This weighs against a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[9] In her Form F8, the Applicant contends that she questioned the Operations Manager as to whether she was being made redundant because of her pregnancy. 2 In the Respondent’s submissions, the Respondent accepts that the Applicant questioned whether the redundancy was related to her pregnancy. However, the Respondent submits that no formal dispute regarding the dismissal was recorded or received.3 She also lodged an unfair dismissal application.4 This weighs in favour of a finding that there are exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[10] The Respondent submitted that the application being made outside of the 21 day period has taken the company directors and operations manager “hours in attending to [their] responses to this matter” and taken them “away from [their] day to day business operations.” 5

[11] While I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) the merits of the application;

[12] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.”

[13] 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 for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application. I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) fairness as between the person and other persons in a similar position.

[14] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[15] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[16] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[17] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[18] An order to that effect will be published separately to this decision.

COMMISSIONER

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 1   Applicant’s Form F8, [1.4].

 2   Ibid [3.1].

 3   Respondent’s Outline of Argument: Extension of time, [1e].

 4   Applicant’s Form F8, [1.4].

 5   Respondent’s Outline of Argument: Extension of time, [1g].