Ms Stephanie Jackson v Cincotta Discount Chemist Armidale

[2018] FWC 7589

[2018] FWC 7589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Stephanie Jackson
v
Cincotta Discount Chemist Armidale
(U2018/10938)

COMMISSIONER JOHNS MELBOURNE, 13 DECEMBER 2018

Application for an unfair dismissal remedy.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Stephanie Jackson (Applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 23 October 2018, that being 41 days after her employment was terminated by Cincotta Discount Chemist Armidale (Respondent) on 12 September 2018 and, consequently, 20 days after the 21 day time limit provided for in the FW Act. To be within time the application should have been lodged on or before 3 October 2018.

[3] When the Applicant filed her application she conceded that it was late. She explained the delay as follows:

“After the day on which I was dismissed, I was very emotional and distressed. A few days later, I attempted to retain legal advice on the matter. The first available appointment I can get my local Community Legal Centre was 25 September 2018. The Community Legal Centre advised me that they would have to review the matter before making a decision on whether I had grounds to progress it. The Community Legal Centre contact me after the expiration of the 21 day period and advised me that, in their opinion, I had grounds for an unfair dismissal claim and that they could assist me in preparing my unfair dismissal application.”

[4] On 8 October 2018 the North & Northwest Community Legal Service wrote to the Commission in the following terms,

“We refer to the above matter and advised that whilst we do not act for Stephanie Jackson, we are assisting her in this matter.

This Jackson attended [our] service on 29 September 2019 regarding this matter. At this meeting, Ms Jackson informed us of her mental health issues and how these had been exacerbated by her summary dismissal. Ms Jackson also informed us of the trepidation in attempting to prepare and file such an application by herself, especially given the state of mental health.

We informed Ms Jackson that we would have to review the matter, along with the paperwork she had provided us with, before we would be able to give her further advice on the merits of the unfair dismissal application. Unfortunately, due to our significant workload and staffing capacity, we were not able to provide further advice [to] Ms Jackson, and file the application, within the 21 day limitation period.

We would be grateful if the Commission could consider the circumstances and grant leave for this application to be filed outside the limitation period.”

The jurisdictional objection

[5] On 9 November 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[6] On 15 November 2018 Deputy President Dean wrote to the Applicant seeking an explanation for the delay.

[7] On or around 21 November 2018 the Applicant sent an email to the Commission explaining that the delay was caused by,

a) not knowing the relevant laws regarding dismissal,

b) mental health conditions,

c) difficulties associated with living in a rural location, and

d) she did not have access to immediate legal advice and assistance.

[8] The matter was then allocated to me and on 28 November 2018. I issued Directions for the parties to file and serve any material they sought to rely upon and invited them to address each subsection in section 394(3) of the FW Act. The Respondent complied with this Direction. The Applicant says she was unaware of the Direction. However, she responded to the material provided by the Respondent in advance of the hearing.

[9] The matter was listed for hearing on 5 December 2018. At the hearing the Applicant represented herself and the Respondent was represented by Scott Harris from the Pharmacy Guild of Australia. He was instructed by Tania Dillon-Ingrilli from the Respondent.

Legislative scheme

[10] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[11] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and 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. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

“[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.”  4

Facts leading up to and relating to the dismissal

[12] Based on the material filed in the matter and the evidence received on 5 December 2018 I make the following findings of fact:

a) The Applicant commenced employment with the Respondent on 19 February 2018.

b) She was paid an hourly rate of $11.1552 per hour.

c) On 7 September 2018 an incident occurred at the pharmacy that resulted in a customer making a complaint about the Applicant. The Applicant denies any wrongdoing. The Applicant was directed to leave the pharmacy.

d) On 12 September 2018 the Applicant was dismissed. The Applicant claims she was denied procedural fairness.

e) On 14 September 2018 the Applicant made an inquiry with Dismissals Direct. The Applicant was advised that “strict time limits apply to employment claims”.

f) On 18 September 2018 the Applicant wrote to Dismissals Direct in the following terms, “Just following up to see how the claim is going?”

g) Approximately, one and a half weeks after the dismissal the Applicant was referred to a community legal centre. The first available appointment was 25 September (according to the Applicant) or 29 September (according to the legal centre).

h) At the meeting on 25 or 29 September 2018 the Applicant was advised of the 21 day time period. The Applicant says she instructed the legal centre to file an application. The Applicant has conceded that,

“At this appointment, they advised me of the time limit in which to file my application and the restrictions on their capacities and resources.”

i) The time for lodging an UFD application within time expired on 3 October 2018.

j) On 12 October 2018 the legal centre sent the Applicant a completed application form for her to submit.

k) On 23 October 2018 the Applicant lodged the present application.

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[13] It is undisputable that there were 41 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[14] The Applicant says the reasons for the delay were:

a) not knowing the relevant laws regarding dismissal,

b) mental health conditions,

c) difficulties associated with living in a rural location, and

d) she did not have access to immediate legal advice and assistance.

[15] In relation to the:

a) First reason - ignorance of the timeframe for lodgement is not an exceptional circumstance. 5

b) Second reason – no medical evidence was presented to support the medical conditions asserted by the Applicant. While I accept that the dismissal caused her great stress I am afraid that stress and grief associated with job loss is normally encountered by people following a termination of employment. In so far as the Applicant says she was “incapable of normal thought processes and of performing everyday actions”, I note that she was able to:

i. liaise with Dismissals Direct in the days following the dismissal,

ii. consult with a caseworker about 1 ½ weeks after the dismissal,

iii. meet with a legal centre around 25 or 29 September 2018.

I do not accept that the Applicant was rendered medically incapable of making an unfair dismissal application.

c) Third reason – the transport difficulties identified by the Application are not out of the ordinary course, or unusual or special. Sadly, they are commonly encountered by people living in rural areas.

d) Fourth reason – the inability to receive or promptly receive legal advice is not unusual. Many Australians because of a lack of means or for other reasons are regularly left with no choice but to represent themselves.

It is for this reason that the Commission has a range of resources available on its website [ aimed at assisting self-represented litigants. These resources include an unfair dismissal application form 6 that can very easily be completed online without the need for assistance from a legal representative. There is also a sample application form to demonstrate to applicants how to complete the form.7

[16] Although the Applicant did not contend that she was a victim of representative error, in fairness to her, I should address this as a possible reason for the delay. A late lodgment of an application due to representative error may be grounds for an extension of time. 8 However, there is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.9 The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.10 Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.11 Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.12 A representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgment.13 A representative error includes inactivity or failure to act promptly.14

[17] In the present matter, at least from 14 September 2018, the Applicant knew that strict timeframes applied. When she consulted with the community legal centre this was reinforced to her. She was told about the 21 day timeframe. She was also told that the legal centre could not file her application in time. This was not a case of representative error. In circumstances where the Applicant was advised by the community legal centre that it could not look at her claim within the 21 day timeframe she cannot seek to attribute responsibility to the legal centre for the late lodgement. Knowing the 21 day timeframe was about to expire she should not have left it in their hands.

[18] Further, I note that the legal centre provided the Applicant with an application on 12 October 2018, but that she did not file it until 23 October 2018. At the hearing the Applicant explained the delay as being a result of correspondence exchanges between her and the legal centre, her remote location and car problems. None of these matters are exceptional.

[19] Therefore this factor weighs against of granting the Applicant a further period to make her application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[20] It is uncontested that the Applicant first became aware of the dismissal on 12 September 2018.

[21] Therefore this factor weighs against of granting the Applicant a further period to make her application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[22] In the present matter the Applicant made an inquiry with Dismissals Direct, she attended a consultation with a community legal centre and then lodged her application (albeit late).

[23] The relatively passive action taken by the Applicant weighs against granting her a further period to make her application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[24] The Respondent did not assert any exceptional prejudice.

[25] The prejudice asserted by the Respondent weighs as a neutral consideration in relation to granting the Applicant a further period to make her application.

Paragraph 394(3)(e) - The merits of the application

[26] In the matter of Kornicki v Telstra-Network Technology Group 15the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 16

[27] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[28] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[29] The substantive factual contest between the Applicant and the Respondent is whether the Applicant engaged in serious misconduct. There is also a contest about whether the Applicant was afforded procedural fairness. These are not factual disputes that can be resolved at a jurisdictional hearing.

[30] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[31] If the Applicant can establish to the satisfaction of the Commission that she did not engage in the conduct alleged against her and that she was denied procedural fairness then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[32] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[33] The Applicant contended that there was unequal treatment of her compared with other employees. The Respondent contended that this factor was not relevant.

[34] Because what the Applicant says requires a detailed consideration of the factual circumstances, and that is not the task of the Commission conducting an extension of time hearing, I have decided to treat this factor as a neutral consideration in relation to granting the Applicant a further period to make her application.

Conclusion

[35] Having considered all of the matters that I am required to consider under section 394(3) of the FW Act, in the exercise of my discretion, for the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge her application).

[36] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

The Applicant, for herself.

Mr S Harris, Pharmacy Guild of Australia, for the Respondent.

Hearing details:

5 December 2018

Printed by authority of the Commonwealth Government Printer

<PR703145>

 1 Section 394(2)(a) FW 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 Section 394(3) FW Act.

 3 [2011] 203 IR 1.

 4 Ibid [13].

 5   Nulty v Blue Star Group Pty Ltd [2011] FWAFB at para 14.

 6       Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35].

 9   Ibid.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14  Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para 28.

 15   PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 16   Ibid.