Ms Phi Chau v The Trustee for Medical Trust
[2024] FWC 1596
•27 JUNE 2024
| [2024] FWC 1596 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Phi Chau
v
The Trustee For Medical Trust
(U2024/5013)
| COMMISSIONER PLATT | ADELAIDE, 27 JUNE 2024 |
Application for an unfair dismissal remedy – request for an extension of time – no exceptional circumstances – application dismissed
On 3 May 2024, Ms Phi Chau (the Applicant or Ms Chau) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with the Trustee for Medical Trust (the Respondent) which occurred on 5 April 2024.
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, however, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.
This application appears to have been lodged 7 days beyond the time permitted.
In her Form F2, the Applicant identified the application was made beyond the 21 days from the date of dismissal. The Applicant explained the reason for delay as follows:
“Public holiday”.
On 27 May 2024, the Respondent lodged a Form F3 Employer Response which raised a jurisdictional objection that the application was lodged out of time.
On 28 May 2024, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 27 June 2024 in respect of the extension of time issue and provided Directions for the filing of material.
No information was submitted by the Applicant despite follow up emails by my Associate. No material was submitted by the Respondent.
The Hearing was conducted via telephone at 10:00am (SA) Thursday, 27 June 2024 and was recorded. The Applicant and Respondent failed to attend.
The relevant information (drawn from the Form F2 and supporting material) is summarised as follows:
· Ms Chau was dismissed on 5 April 2024.
· A letter with the subject line ‘Termination of Employment’ was provided to the Applicant on 5 April 2024, advising that termination of her employment was effective immediately.
· Ms Chau did not lodge the application until 3 May 2024.
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.[1]
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[2] 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
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.[3] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] 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.”
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:[5]
“[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 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.”
It does not appear in dispute that Ms Chau was dismissed from her employment on 5 April 2024 and that she was aware on that day. The last day to file her application in time was 26 April 2024. The application was lodged on 3 May 2024. The only reason proffered by Ms Chau to explain the delay are the words ‘Public Holiday’.
The only Public Holiday between the date of dismissal and the deadline for the filing of the application was ANZAC Day (25 April 2024). There is no explanation as to how the presence of ANZAC day impacted Ms Chau’s capacity to file her application. Had the 26th of April been a Public Holiday, then the time for filing would have been extended by virtue of the Acts Interpretation Act[6], but this was not the case.
In my view, Ms Chau has not provided a credible reason for the delay in filing the application. This factor weighs against of the granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Ms Chau appears to 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.[7]
There is no evidence that Ms Chau took any action to contest the dismissal other than the lodgement of the application.
This factor is a consideration against 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.[8] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[9]
There is no submission by the Respondent that prejudice has occurred. Accordingly, prejudice is a neutral consideration.
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[10] 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.”
There is insufficient information to satisfy me the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As a result, 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 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[11] reflecting this decision will be issued.
COMMISSIONER
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[2] [2011] FWAFB 975.
[3] 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].
[4] [2016] FWCFB 349.
[5] [2018] FWCFB 3288 at [35]-[45].
[6] Acts Interpretation Act 1901 (Cth).
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[8] Ibid.
[9] Ibid.
[10] [2016] FWCFB 6963.
[11] PR776198.
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