Ms Tabatha Malpass v Spendless Shoes Pty Ltd

[2014] FWC 7568

[2014] FWC 7568

FAIR WORK COMMISSION

DECISION

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

Ms Tabatha Malpass
v
Spendless Shoes Pty Ltd
(U2014/12162)

COMMISSIONER CLOGHAN PERTH, 27 OCTOBER 2014

Unfair dismissal - jurisdictional objection - out of time.

[1] On 2 September 2014, Ms Tabatha Malpass (Ms Malpass or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Spendless Shoes (Employer).

[2] Ms Malpass states in her application that her dismissal took effect on 8 May 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Ms Malpass has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 2 September 2014), if it is satisfied that there are exceptional circumstances.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 2 September 2014, I issued procedural directions to the parties on 9 September 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the Applicant to file the application on 2 September 2014.

APPLICANT’S SUBMISSION

[9] The Applicant’s submission is short and reproduced in its entirety below:

“I have no paperwork or information that I can provide as to reasons why I was late in making the claim. All I can state is that I was unaware of the opportunities and rights I had in regards to unfair dismissal until I was told by an elder of mine. Upon learning of the help I could receive I immediately pursued the claim. I am living away from home and also don’t have appropriate access to internet and was shocked due to the immediate dismissal and were trying the frantically find another job.”

[10] As a consequence of the Employer’s submission, the Applicant became aware that her stepfather made telephone enquiries of the Employer regarding the Applicant’s dismissal. The Employer, for privacy reasons, did not divulge the reason(s) but assured the Applicant’s stepfather that it had adopted “fair and legal process”. To assist, the Employer provided to the Applicant’s stepfather, a link to the Commission’s unfair dismissal web pages.

[11] As a consequence of being informed of these actions, the Applicant now contends that should she have been made aware of the web site, she would have taken action earlier.

EMPLOYER’S SUBMISSION

[12] Put shortly, the Employer submits that the Applicant was dismissed on 8 May 2014. Soon afterwards, the Applicant’s stepfather made enquiries about the reasons for dismissal. On 12 May 2014, the Employer provided a response to the Applicant’s stepfather with a link to the Commission’s web site. This web site provides information on the statutory timeline for making an application to the Commission. The email and website link was provided to the Applicant’s stepfather was within four (4) days of the Applicant’s dismissal.

CONSIDERATION

[13] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[14] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[15] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[16] The burden lies with Ms Malpass to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[17] The Applicant, to her credit, does not attempt to “gild the lily”. The reason for the delay in Ms Malpass not filing the application within the 21 days after the dismissal took effect is simply that she was unaware of the provisions in the FW Act. When she became aware of the provisions, Ms Malpass acted promptly.

[18] Firstly, if becoming aware of the statutory timeline was an exceptional circumstance for the delay in making an application to the Commission, the statutory timeline of 21 days after the dismissal took effect would become meaningless. Ignorance of the provisions of the FW Act as set out in similar legislation, and discussed in Nulty v Blue Star Pty Ltd (2001) 203 IR 1 [14], is not an exceptional circumstance for the delay in lodging an application.

[19] Secondly, it is notable that the application is dated 26 June 2014 but was only filed on 1 September 2014. This delay is unexplained.

[20] Thirdly, the Employer’s correspondence to the Applicant’s stepfather is no more or less than a communication to Ms Malpass’ stepfather. To have copied the communication to the Applicant would have been inappropriate. Whatever the Applicant’s stepfather did with that communication was up to him. Finally, whether the Applicant and her stepfather discussed the Employer’s correspondence, is also a matter for them; it is not an exceptional circumstance.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[21] The Applicant states in her application that she was dismissed on 8 May 2014. This appears not to be in dispute.

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

[22] The Applicant does not address this criterion in her submission.

[23] I note that although the application is dated 26 June 2014, it was not forwarded electronically to the Commission until 1 September 2014 at 8:49 pm.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[24] The Applicant does not address this criterion in her submission.

[25] The Employer has not raised this issue in its submission. However, the fact remains that the application was made nearly four (4) months after the dismissal took place which is a significant delay and may cause prejudice to the Employer.

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

[26] While the Applicant has set out the circumstances leading to her dismissal, the Employer has not been required to provide a response. Consequently, I have adopted a neutral position with respect to this criterion as to whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[27] It would appear that this criterion is not a relevant consideration. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[28] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Ms Malpass filing her application. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 24 September and 16 October 2014.

Respondent: 25 September 2014.

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