Ms Stephanie Gommers v Royal Flying Doctor Service of Australia (Vic)

[2019] FWC 6715

[2019] FWC 6715

FAIR WORK COMMISSION

DECISION

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

Ms Stephanie Gommers
v
Royal Flying Doctor Service of Australia (Vic)
(C2019/4548)

DEPUTY PRESIDENT LAKE BRISBANE, 27 SEPTEMBER 2019

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This Decision concerns an application by Ms Stephanie Gommers (the Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to her dismissal by theRoyal Flying Doctor Service of Australia (Vic) (the Respondent). The Applicant’s employment was terminated on 30 June 2019 following a period of consultation regarding a redundancy process. The Applicant filed her general protections application on 23 July 2019.

[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application must have been made by midnight on 21 July 2019 but was not. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] The Respondent did not consent to participate in a conciliation prior to the determination of whether the Applicant should be granted a further period in which to make her application. Directions were issued on 12 August 2019 requiring the Applicant to file submissions and material setting out the basis that there were exceptional circumstances justifying the granting of a further period in which to make her application, by 4:00pm on Tuesday, 20 August 2019. The Respondent was directed to file and serve submissions and any material to its view by 4:00pm on Tuesday, 27 August 2019. In these directions, a hearing date was set for Friday, 30 August 2019 for me to hear the matter. The Applicant requested an extension of time for the filing of its material and for the hearing date to be adjourned to late 2019. This request was denied. The Applicant failed to comply with the direction to file its material in time, but ultimately did, albeit late. The Respondent was duly allowed more time to file its material so it was not prejudiced, but this did not ultimately impact the scheduled hearing date which proceeded on 30 August 2019.

[4] At the hearing, the Applicant was represented by one Mr Adam Arness, a lawyer, who sought and was granted permission to represent the Applicant. I was satisfied that, having regard to the complexity of the matter, allowing representation would enable the matter to be dealt with more efficiently pursuant to s596(2)(a) of the Act. Mr Cory Mathieson, People and Culture Manager for the Respondent, appeared on behalf of the Respondent.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s.366(1) of the Act requires that a general protections application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[9] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

The reason for the delay – s. 365(2)(a)

[10] The Commission must consider the reason for the delay. An absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each. 5

[11] The Applicant stated in her outline of argument that her application was not made within 21 days of his dismissal because of the following reasons:

•  it was an innocent mistake (purportedly because she was overseas);

•  the Applicant disputed the dismissal and was taking actions to dispute the dismissal with the Respondent;

•  it was hard to submit the application because the Applicant was overseas;

•  the Applicant had a fragile mental state; and

•  the Respondent did not respond the Applicant regarding her query regarding her dismissal.

[12] To support these reasons, the Applicant provided a statement which was sworn in as evidence at the hearing. In that statement, the Applicant attested to the above reasons.

[13] With regard to these reasons, and on the evidence before me, I cannot determine that any of these reasons is an exceptional circumstance giving rise to me exercising my discretion to allow an extension of time.

[14] With respect to the reasons regarding the non-filing of the application being an innocent mistake or because the Applicant was overseas, these are not persuasive submissions.

[15] Regarding the disputation of the dismissal and the Respondent’s lack of response, this did not prohibit the Applicant from filing the general protections application within the prescribed time. In any event, and on the evidence before me, I can see that the Respondent responded to the Applicant’s query when she sought more information about her redundancy.

[16] Regarding the Applicant’s fragile mental state, whilst sympathetic to this submission, it is not an exceptional circumstance in this case given that the Applicant’s submission was not corroborated by medical evidence which could confirm that the Applicant’s medical state prohibited the Applicant from filing her application.

[17] I therefore find the reasons for the delay not compelling to exercise my discretion to allow an extension of time for the Applicant to lodge her application.

Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)

[18] It is clear that the Applicant took steps to query and dispute her dismissal. This is a factor that weighs in favour of granting an extension of time.

Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)

[19] Noting the short delay between the expiry of the 21 day timeframe and the filing of this application, I am satisfied that there would be no prejudice to the Respondent then there would have been had it been made within the 21 day time period. Accordingly, this factor is a neutral consideration.

The merits of the application – s. 366(2)(d)

[20] In Kornicki v Telstra-Network Technology Group 6 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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] The Applicant contended that she was dismissed from her employment due to her physical or mental disability (s.351 of the Act) and/or due to a temporary absence from work because of illness or injury (s.352 of the Act).

[22] The Respondent outlined in its submissions that the Applicant’s injuries were not a factor in assessing the key selection criteria for its redundancy and redeployment process it was undertaking due to the loss of a significant contract. Further, the Respondent submitted that the Applicant’s injury allegedly occurred after the assessments had been undertaken.

[18] The Respondent outlined in some detail in its response the process undertaken over several months following the loss of a major contract with respect to human resourcing requirements. The process followed, in my view, best practice, and involved upfront and frequent communications with all affected employees. It included the opportunity to be redeployed and a multifactor assessment process (with respect to those employees who were to be made redundant). In my preliminary view, the Applicant’s dismissal was likely not based on any factor other than being a redundancy due to the loss of a large contract which affected a significant number of employees

[20] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. With the submissions and evidence available to me at this stage regarding the merits, it plausible to me that the Applicant was terminated as a result of a ‘best practice’ redundancy process. Therefore, I consider the merits of the application as a slightly negative a factor weighing against allowing an extension of time, without of course the ability to fully extract all the evidence.

Fairness as between the Applicant and other persons in a like position – s. 366(2)(e)

[23] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 7

[24] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

CONCLUSION

[25] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist in this matter.

[26] Pursuant to section 366(2) of the Act, the extension of time is denied and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

For the Applicant: Mr Adam Arness of Gigliotti Lawyers

For the Respondent: Mr Cory Mathieson

Hearing details:

30 August 2019.

By Telephone.

Printed by authority of the Commonwealth Government Printer

<PR712839>

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

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

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

 7   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].