Ms Naomi Mathias v Lowes - Manhattan Pty Ltd
[2024] FWC 3060
•6 NOVEMBER 2024
| [2024] FWC 3060 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Naomi Mathias
v
LOWES - MANHATTAN PTY LTD
(C2024/7011)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 6 NOVEMBER 2024 |
Application alleging contravention of General Protections provisions – extension of time – whether exceptional circumstances exist – application dismissed.
This decision concerns the question of whether there are ‘exceptional circumstances’ such that the applicant in this matter, Ms. Naomi Mathias (Applicant), should be permitted to proceed with a late application under Part 3-1, General Protections of the Fair Work Act 2009 (Cth) (Act). For the reasons which follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.
Procedural Background
On 30 September 2024 the Applicant filed an application under s.365 of the Act against her previous employer, Lowes Manhattan Pty Ltd (Respondent) alleging that her employment had been terminated by the Respondent in breach of Part 3-1 - General Protections – of the Act.
Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant’s dismissal took effect on 28 August 2024 and that the application was therefore out of time by a period of 12 days.
The Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.
Legislation
Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
I deal with each of the matters referred to in s.366(2) below.
Section 366(2)(a) – reason for the delay
The Applicant argued that the Respondent did not tell her that she had 21 days from the date of the dismissal to file an application at the point of termination. She said that the was unaware of the limitation period and as a conscientious employee, had no reason to think about termination of employment processes and the time limits that may be involved. Further, the Applicant said that the Respondent deliberately did not respond to her written complaint submitted shortly after her termination and did so knowing about the limitation period that applied to applications of this kind. The Applicant said that this delayed response from the Respondent prevented her from filing the application in a timely manner.
The Respondent said it was not required to advise the Applicant about the limitation period. They denied that there was any deliberate delay in responding to the Applicant’s grievances after her employment had ended.
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[1] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[2] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[3]
It is well-settled that mere ignorance of the time limitation period will not constitute exceptional circumstances.[4] Lack of awareness about the limitation period is commonplace. The evidence did not show that the Applicant made her own timely inquiries about the processes involved in bringing a General Protections application and there was no evidence that she was otherwise incapable of making inquiries or bringing an application or was somehow impeded from doing so. The Applicant was clearly capable of writing detailed complaints shortly after her dismissal and would equally have been able to file a General Protections application. Instead, it seems that the Applicant consciously decided to wait until the Respondent replied to her letter of 2 September 2024 before proceeding with an application. She assumed some risk in doing so.
The Applicant also wrote to the Respondent on the last day for the filing of an application, 18 September 2024, to follow up on her earlier correspondence and to request a response by 20 September 2024. There was no evidence of any further contact with the Respondent by the Applicant over the period of the delay referred to in s.366(2)(a), that is, from 18 September until 30 September 2024.
I cannot be satisfied on the evidence that there was any deliberate delay on the part of the Respondent in responding to the Applicant’s complaints. But in any case, although it is understandable that someone in the Applicant’s position would want to try to resolve the matter quickly and directly, the fact that the Applicant did not receive a response until 30 September 2024 did not prevent or impede her from taking steps to file an application. Nor does it provide a reasonable explanation for the delay in making the application.[5]
Overall, I do not think the evidence establishes that the reasons given, separately or in combination, adequately explain the delay or any particular part of the delay, in the filing of the application. I am of the view that the reasons provided weigh against a conclusion that there are exceptional circumstances.
Sub sections 366(2)(b) – Any action taken by the person to dispute the dismissal
The Applicant disputed the dismissal in her letter of 2 September 2024. She said she regarded the termination letter as ‘one-sided, biased and not accurate.’ She asserted that she had left a good position with a previous employer only to be terminated on grounds that she regarded as ‘unfair, untrue and unjustified.’ She sought compensation to cover the period she said was required to obtain alternative employment. The Applicant wrote again on 18 September requesting a response. In neither case did she indicate that she intended to initiate proceedings. Although the Respondent could reasonably have assumed after the expiry of the limitation period that the Applicant was not intending to bring proceedings, I think that the steps the Applicant took made it apparent that she was disputing the dismissal and that absent a response that the Applicant regarded as acceptable, there was some likelihood the matter would be taken further. This weighs in the Applicant’s favour in the assessment of exceptional circumstances.
Sub sections 366(2)(c) - Prejudice to the employer
There was no evidence about prejudice to the Respondent, including prejudice caused by the delay. I am unable to conclude that such prejudice exists here. This is a neutral consideration in the assessment.
Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position
There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.
Section 366(2)(d) – Merits of the application
As to the merits of the application, the Applicant has asserted a contravention in the application which the Respondent denies. The Applicant says that she was bullied in the workplace including by being ‘frozen out’ of work she was capable of performing and being spoken to inappropriately. There was limited evidence about the Applicant speaking with Ms. Rogers from the Respondent on 1 August 2024 and raising complaints about the conduct she said she had experienced. The Applicant denied that there were any genuine performance issues that could have justified termination.
The Respondent denied that any workplace bullying had occurred. They said that the termination was performance-related and that the Applicant only raised her alleged bullying complaints after her termination. As a result, they said that the decision to terminate could not have been related to any alleged bullying complaint and there was no basis for a claim that the General Protections provisions had been contravened.
The determination of these issues would require a hearing on the evidence should the matter proceed. It is not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[6] On the material available, I am unable to form a firm view as to the merits of the application. I regard the merits as a neutral consideration.
Exceptional circumstances - conclusion
In circumstances such as these the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.[7]
Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Mathias for the Applicant.
Mr Jason Heap for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10am AEDT on Tuesday, 5 November 2024.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
[2] Ibid at [39].
[3] Stogiannidis op cit at [45].
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[5] See Franks v. Woolworths Group Ltd and Anor[2024] FWC 2750 at [14].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Ibid at [13].
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