Ms Shirin Molnar v SocietyOne Australia Pty Ltd

[2016] FWC 7716

[2016] FWC 7716

FAIR WORK COMMISSION

DECISION

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

Ms Shirin Molnar
v
SocietyOne Australia Pty Ltd
(C2016/5364)

COMMISSIONER SAUNDERS NEWCASTLE, 2 NOVEMBER 2016

Application to deal with contraventions involving dismissal - application for extension of time refused – application refused.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Shirin Molnar (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 28 October 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from its Head of People, Ms Sarah Black.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] 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 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. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“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.”

Relevant chronology of events and reasons for delay

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 16 August 2016.

[13] The 21 day time period for the applicant to make her Application expired on 6 September 2016. 12 Given that the applicant filed her Application on 7 September 2016, the Application was one day late.13

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 6 September 2016 to 7 September 2016. However, the circumstances from the time of the dismissal (16 August 2016) 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.

[15] The applicant relies on the following reasons for failing to file her Application within 21 days when her dismissal took effect:

(a) It took the applicant some time to figure out what she believed were the reasons for her dismissal;

(b) After her dismissal on 16 August 2016, the applicant suffered from anxiety and depression. She sought treatment from her general practitioner, Dr Paul Nouris, on 16 August, 19 August, 25 August and 1 September 2016 in relation to her anxiety and depression, including the effects of those conditions on the applicant such as difficulty sleeping, elevated blood pressure and heart rate, migraines, not eating well, not dealing well with everyday tasks such as cooking, and worrying about her poor financial state and the prospect of losing her home;

(c) The applicant relies on a medical certificate prepared by Dr Nouris on 29 September 2016 in which Dr Nouris certified that:

“I am the treating doctor for Mrs Shirin Molnar for the past 20 years.

I am writing this letter in support of Shirin requesting assistance to understand the reasons for her termination at work.

Shirin suffers from multiple medical problems including blood pressure and epilepsy.

Recently her blood pressure has been elevated and has suffered from migraines and multiple viral illness and anxiety and depression.

She did inform that she had some issues at work, a few days after starting work and she seemed very upset on the day that her employment was terminated.”

(d) The applicant also relies on a letter dated 27 September 2016 from Ms Samar Dawidar, Health Services Officer, of Max Employment, the employment agency used by the applicant to search for alternative employment following her dismissal on 16 August 2016. No evidence was adduced to suggest that Ms Dawidar has any medical or other relevant qualifications in relation to the applicant’s medical conditions or the impacts of them on her ability to cope or function. In her letter of support for the applicant’s Application, Ms Dawidar states:

“… My client, Mrs Shirin Molnar, is currently unemployed and trying hard to remain motivated and work through her mental and physical health conditions in sustaining long-term employment. Mrs Molnar has reported adverse impacts to her mental and physical health and well-being that she believes were triggered by workplace bullying and stress.

I am currently working with Mrs Molnar on ways to identify, cope and manage grief and loss, financial distress, stress, anxiety and depressive symptoms. Mrs Molnar has reported experiencing episodes where she finds it difficult to do everyday tasks due to her stress and concerns regarding her financial situation and the impacts of being terminated during her probation period and the reported treatment experienced by management leading up to her termination. Mrs Molnar has also reported that she is recovering from 2 seizures experienced during her employment, however Max Employment have not been provided with copies of official medical records to corroborate this …”

(e) The applicant was made aware during her meeting with Ms Dawidar on 29 August 2016 that there was a 21 day time limit for her to make an application to the Commission. The applicant had trouble trying to put together the events that had taken place and make some sense of them. The applicant undertook reading in relation to a potential claim by her against the respondent, but her reading took a long time by reason of the migraines she was suffering and her need to sleep a lot. It was on 6 September 2016 that the applicant finally decided to proceed with her Application. The applicant commenced preparing her Application on 6 September and completed it about two hours after midnight on 6 September 2016. She then lodged it with the Commission. In the result, the Application was filed one day late.

[16] Notwithstanding the difficulties the applicant faced in the period following her dismissal, the applicant gave evidence that in the period between 16 August 2016 and 7 September 2016 she made a number of applications for other jobs. The applicant prepared and submitted those applications herself “on-line”. The applicant also participated in a number of consultations (by telephone and in person) with Max Employment during the period from 16 August 2016 to 7 September 2016 in relation to finding alternative employment. This evidence suggests that the applicant was not incapacitated by her medical conditions to such an extent that she could not have completed her Application and filed it prior to 7 September 2016.

[17] While I have sympathy for the applicant, the evidence in this case concerning the applicant’s level of incapacity in the 22 days following her dismissal is insufficient, in my view, whether considered alone or in combination with the other reasons relied on by the applicant, to give rise to a finding that her difficulties were out of the ordinary course, unusual, special or uncommon.

[18] This factor weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[19] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[20] After the applicant was told in her termination meeting that she no longer had a job, she asked whether her being ill was the reason she was being dismissed. Her question was answered in the negative.

[21] By challenging whether her temporary absence from work due to illness was a reason for her dismissal, the applicant took action to dispute her dismissal. Accordingly, this factor weighs in favour of granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[22] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[23] A long delay gives rise “to a general presumption of prejudice”. 17

[24] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18

[25] The period of the delay in this matter was one day. That is obviously a very short period of delay. The respondent does not submit that it suffered any prejudice by reason of the Application being filed one day late.

[26] In all the circumstances of this case, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[27] The applicant contends that the respondent engaged in undue influence or pressure in contravention of s.344 of the Act. The applicant also contends that the respondent contravened s.352 of the Act by dismissing her because she was temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[28] The applicant’s Application does not reveal the conduct said to constitute undue influence or undue pressure under s.344 of the Act, nor was any such information revealed in the applicant’s outline of argument or her evidence. In those circumstances, the applicant’s s.344 claim does not appear to have any merit.

[29] However, the applicant’s s.352 claim is not without merit. The applicant was temporarily absent from work due to illness or injury during her probationary period. That was a matter of some concern to the respondent. The applicant contends that part of the reason for her dismissal was her temporary absence from work because of illness or injury. The respondent denies that assertion and contends that the applicant was dismissed solely due to her performance.

[30] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application insofar as it relies on an alleged contravention of s.352 of the Act is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [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.”

[32] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[33] Having taken into account the matters referred to in paragraphs [12] to [32] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms S Molnar on her own behalf;

Mr S Willoughby, General Counsel, for the respondent.

Hearing details:

2016.

Newcastle:

October, 28.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

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

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   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]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 16 August 2016 (not including 16 August) is 6 September 2016.

 13   That is, 7 September 2016 is one day after 6 September 2016.

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

 15   Ibid.

 16   Ibid.

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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