Ms Tanya Bolding v Jeld Inverloch Pty Ltd as trustee for the Jeld Inverloch Unit Trust trading as LJ Hooker Inverloch/Wonthaggi

[2016] FWC 3488

[2016] FWC 3488

FAIR WORK COMMISSION

DECISION

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

Ms Tanya Bolding
v
Jeld Inverloch Pty Ltd as trustee for the Jeld Inverloch Unit Trust trading as LJ Hooker Inverloch/Wonthaggi
(C2016/1046)

COMMISSIONER SAUNDERS NEWCASTLE, 31 MAY 2016

Application to deal with a general protections application involving a dismissal – refusal to extend time.

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 Tanya Bolding (the applicant) a further period for her general protections application (the Application) to be made.

The jurisdictional objection

[3] On 30 May 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant tendered her outline of argument, together with a medical certificate, and gave oral evidence in support of her application. The respondent did not call any witnesses or tender any documents. It relied on its outline of argument, together with its oral submissions.

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 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. 3 In 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.”   

[7] Ignorance of the timeframe for making a general protections application is not an exceptional circumstance. 4

Consideration

Paragraph 366(2)(a) - reason for the 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

[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. 9 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:10

“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

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

[13] The 21 day time period for the applicant to make her general protections application expired on 3 May 2016. 11 Given that the applicant completed her Application on 3 May 2016 and it was lodged with the Commission on 4 May 2016, the Application was made one day late.12

[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 3 to 4 May 2016. However, the circumstances from the time of the dismissal (12 April 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 the delay in filing her Application:

(a) The applicant believed that she had made her Application within the 21 day time period. I am satisfied that this was a genuine misunderstanding on the applicant’s part, but it is not an exceptional circumstance;

(b) In her written outline of argument the applicant explained that the reason her Application was filed late “was due to me not owning my own computer meaning I had to use my parents’ computer whom I do not live with. I own an iphone, however this would not let me fill in a word document.” In my view, difficulties of this kind are not out of the ordinary course, unusual, special or uncommon; and

(c) The applicant gave oral evidence that she was “not in the best state” and was “suffering bad anxiety” at about the time of her dismissal. The medical certificate tendered by the applicant establishes that she saw her treating doctor in relation to her symptoms of anxiety on 5 April and 26 April 2016, and the applicant reported to her doctor that “recent events at work had triggered her symptoms of anxiety”. However, the medical certificate does not say how the applicant’s medical condition prevented her from being able to make her Application within the 21 day time period. Further, no other evidence was adduced on this point, nor was there any explanation given as to why the applicant was well enough to lodge her Application on 4 May 2016, but not at any time in the preceding 22 days.

[16] While I am sympathetic to the applicant’s circumstances, I am not persuaded that the applicant’s difficulties were out of the ordinary course, unusual, special or uncommon.

[17] 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

[18] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 13

[19] At the time of her dismissal the applicant challenged the respondent’s decision to terminate her employment and its reasons for doing so. The respondent was clearly put on notice that the applicant would challenge her dismissal. This weighs in favour of a finding that there are exceptional circumstances.

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

[20] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[21] A long delay gives rise “to a general presumption of prejudice”. 16

[22] 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. 17 No such evidence was adduced by the respondent in this case.

[23] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

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

[24] In Kornicki v Telstra-Network Technology Group 18the Commission considered the principles applicable to the extension of time discretion under the former section 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 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.” 19

[25] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 20 for the purpose of determining whether to grant an extension of time to the applicant to lodge her Application.

[26] I adopt this reasoning in relation to my consideration of the merits of the Application.

[27] The applicant submits that she was treated adversely by the respondent in a number of ways, including dismissing her because she exercised her workplace right to make a complaint about being bullied, harassed and victimised at work, and discriminating against her and dismissing her because of her disability (anxiety). The respondent denies those allegations and says that it terminated the applicant’s employment because she had an untenable working relationship with a co-worker and the conflict flowing from that destructive relationship had disrupted the respondent’s workplace.

[28] I am not able to make an assessment of the merits as there are factual disputes between the parties concerning the reasons for the respondent’s actions that have not been tested. I consider this criterion to be neutral.

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

[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 21 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[30] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.

[31] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[32] Having taken into account the matters referred to in paragraphs [12] to [31] 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.

[33] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms Tanya Bolding on her own behalf.

Mr Chao Ni, solicitor, for the Respondent.

Hearing details:

2016.

Newcastle:

May, 30.

 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   Section 366(2) of the Act.

 3 [2011] 203 IR 1

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

 5   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 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   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]

 10   [2016] FWCFB 349 at [31]

 11   That is, 21 days from 12 April 2016 (not including 12 April) is 3 May 2016.

 12   That is, 4 May 2016 is 1 day after 3 May 2016.

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

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

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

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

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

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

 19   Ibid.

 20   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 21   [2015] FWC 8885

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