Ms Tayla Hack v Parkwood Tavern (ALH Group)

[2014] FWC 3422

[2014] FWC 3422

FAIR WORK COMMISSION

DECISION

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

Ms Tayla Hack
v
Parkwood Tavern (ALH Group)
(U2014/6315)

COMMISSIONER SPENCER BRISBANE, 16 JULY 2014

Application for relief from unfair dismissal - extension of time - exceptional circumstances.

Introduction

[1] This determination relates to an application made by Ms Tayla Hack (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment from the Parkwood Tavern (ALH Group) (the Respondent/the Employer) was harsh, unjust and or unreasonable (the substantive application).

[2] The substantive application was filed on 8 April 2014. The Applicant stated in her Form F2 Application for Unfair Dismissal Remedy that the date she was notified of her dismissal and the date that the dismissal took effect was 15 March 2014.

[3] By operation of s.394(3) of the Act (extracted below) an application under Division 4 must be made within 21 days after the dismissal took effect. Consequently the Applicant’s application must have been filed by 5 April 2014. The application is some 3 days late.

[4] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[5] The matter was listed for a jurisdictional conference or hearing on 8 July 2014. Having considered the material filed by the parties and the submissions made during the conference the parties were advised that I was not satisfied that the Applicant has made out her case for an extension of time. These are my reasons for finding such.

[6] It is noted that while not all of the evidence and submissions in this matter are referred to in these reasons; all of such have been considered.

Background

[7] The Applicant stated that in the substantive application that she was dismissed for refusing to remain after her rostered shift had ended on 14 March 2014. The Applicant stated that she could not do so because she had to work early the next morning, at another job, for which she was required to prepare.

[8] The Respondent in this matter did not file an Employer Response or Objection to Application, as required by the Fair Work Commission Rules 2013 (the Rules). On 29 April 2014, the Unfair Dismissal Branch of the Commission corresponded with the Respondent in the following terms:

“The Employer’s Response to Application for an Unfair Dismissal Remedy form must be completed by Parkwood Tavern (ALH Group) and returned to the Commission within 7 days.” (emphasis in original)

[9] There has been no explanation for the Respondent’s failure to file a response in accordance with the Rules and the correspondence of 29 April 2014.

[10] In its submissions in response to the jurisdictional matter, the Respondent raised an additional jurisdictional objection; namely that the Applicant was a casual employee and had not completed the minimum employment period and that she was not employed on a regular and systematic basis. Given that an extension of time was the initial consideration these additional jurisdictional objections were set aside until this consideration had taken place.

[11] The Respondent stated in reply that the Applicant, as a casual employee, was not offered anymore work because she was no longer required. However, the Respondent also submitted that the Applicant was not offered further work due to her “poor work ethic”. Given the preliminary nature of this jurisdictional decision no finding is made in relation to these reasons.

Relevant Provisions of the Legislation

[12] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides 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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[13] The relevant consideration in relation to the jurisdictional objection is s.394(3).

Summary of the Applicant’s Submissions and Evidence

[14] The Applicant’s submitted as follows:

“I lodged the application on the 31st of March, the date which I signed the application, in the late evening, still leaving 4 days for my application to be sent to you. I don’t know what happened in the post for it to be outside of this time frame.

I did receive a call from FWA sometime after enquiring about my credit card details as I accidentally left them off the form I sent. I’m not sure if that may have contributed to the delay.”

[15] After receipt of the Respondent’s submissions and the Applicant’s material in reply, the Commission provided a further opportunity to the Applicant to address those matters in s.394(3) of the Act.

[16] By email of 2 June 2014, the Applicant provided further submissions addressing the factors outlined under s.394(3).

[17] In the further submissions, the Applicant confirmed that she was made aware of the dismissal on the date the dismissal took effect, being 15 March 2014.

[18] Regarding the action taken to dispute the dismissal, the Applicant confirms she contacted Mr Tim Osborne of the Respondent regarding her termination. On Mr Osborne’s advice the Applicant sent an email to him that outlined the circumstances leading up to her dismissal. The Applicant states that it was her understanding that Mr Osborne would follow up the matter on her behalf, however, she did not receive a response.

[19] The Applicant states that “after waiting for a reply from him [Mr Osborne], I then I [sic] researched about perusing [sic] it with Fair Work.” It is not clear from the Applicant’s submissions what sources were included in this research.

[20] By the Applicant’s own admissions, the next action she took was some 14 days after sending this email where, on 31 March 2014, she states that she posted the application.

[21] The Applicant predominately relied on the delay in the postal system after she stated she posted the application on 31 March 2014. No proof of postage was provided.

Summary of the Respondent’s Submissions and Evidence

[22] The Respondent submitted that the Applicant had not provided any evidence in support of her submissions that the delay was due to the postal system. In any event the Respondent submitted that the reasons identified by the Applicant were not “exceptional circumstances”.

[23] The Respondent submitted that the substantive application makes clear that the Applicant was aware of the dismissal on the day that it occurred.

[24] The Respondent stated that the Applicant made no other attempts to otherwise dispute the dismissal, although I note that the Respondent does appear to dispute that a dismissal actually occurred.

[25] The Respondent relies on the notion that it is entitled to certainty in terms of business and staffing operations, and allowing the Applicant an extension of the time frame for filing the application would prejudice them in this respect.

[26] The Respondent submits that notwithstanding that the application has been filed outside the time frame, the application otherwise has no merit due to the Applicant being a casual employee who was not employed on a regular or systematic basis. The Respondent included in their submissions excerpts of the Applicant’s working hours in support of the claim that the Applicant was not employed on a regular or systematic basis.

Consideration

[27] Pursuant to s.394(2)(a) the application must have been made by 5 April 2014. The application was filed 3 days out of time.

[28] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 1 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.” 4

[29] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 5

[30] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

s.394(3)(a) - reason for the delay

[31] Based on the Applicant’s submissions, she was aware of the relevant timeframe for making an unfair dismissal application. The Applicant has stated that she “lodged” the application on 31 March 2014, being the date on which the application was signed. This is reflected by the date on the signature panel of the substantive application.

[32] The Applicant relies upon what seems to be an inexplicable delay in the application being received through the post at the Commission.

[33] A document is not “lodged” with the Commission until such time as it is received by the Commission. The substantive application was not “lodged” until 8 April 2014.

[34] Even if it is accepted that the Applicant completed, signed and posted the substantive application on 31 March 2014 (although it is noted that the Applicant does not submit or give evidence that the application was in fact posted on 31 March 2014, rather simply signed on this date) the application was not lodged until it was received and stamped by the Fair Work Commission Registry on 8 April 2014.

[35] The obligation to file an application within time falls solely upon the Applicant. It can be accepted for present purposes that the Applicant did take the steps that she stated on 31 March 2014. However, no steps appear to have been taken by the Applicant (despite an awareness of the timeframe) to confirm that the document was in fact received in time, by the Commission. The Applicant does not given any evidence that she called the Commission to confirm that her application was received and therefore lodged within time.

[36] I am not satisfied that the reason for delay is commensurate with the exceptional circumstances test.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[37] The substantive application records that the Applicant was notified of the dismissal on 15 March 2014 and that the dismissal took effect on this date.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[38] With the exception of the email that was sent to Mr Osborne on 14 March 2014, there is no evidence that the Applicant took any steps to dispute the dismissal prior to the lodgement of the substantive application.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay

[39] Prejudice to the employer includes that which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness. 6

[40] The Respondent has pleaded the desirability of “certainty” regarding its actions. I do not consider this against the facts of this matter to be prejudice of the requisite kind. This factor has therefore been given neutral weight in the consideration.

s.394(3)(e) - the merits of the application

[41] Limited information has been provided on the merits of the application.

[42] From the additional material filed by the parties in relation to the reasons for the dismissal it appears that there is some merit in the application. The Applicant appears to have been directed, at very short notice, to remain at work; the Applicant refused. If the Applicant was indeed a casual employee, as submitted by the Respondent, then the Applicant has no obligation to work beyond the shift for which she was rostered; she did work this shift. The Respondent was of course able to request that she work additional hours but, given the very short notice (the request appears to have been made after the rostered shift ceased) it is not unreasonable that the Applicant would refuse (particularly considering that the shift was late at night). No specific findings can be made on this criteria at this stage. Furthermore, the Respondent has raised competing submissions on their view of the facts.

[43] The Respondent has also raised an objection regarding whether the Applicant was in fact a person protected from unfair dismissal, due to her being a casual employee who was not employed on a regular or systematic basis. Taking into account the disparity between the parties the merits of the application are a neutral factor in the consideration, regarding the grant of an extension of time.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[44] The parties have not referred to any person in a similar position. This factor is neutral in my consideration.

Conclusion

[45] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Tribunal of their case.

[46] The reason for the delay, essentially reliance upon postal service, is not an exceptional circumstance on the material provided. In any event the Applicant has not taken any step to ensure that the document was received by the expiration of the time limit (eg by contacting the Commission to confirm lodgement).

[47] The Respondent submitted an alternative argument that, if the Commissioner was so minded to extend the timeframe for filing the application, it should be taken into account that the Applicant was a casual employee, who had not worked on a regular and systematic basis.

[48] Given that the matters raised do not meet the exceptional circumstances test for an extension of time, it has not been necessary to consider the alternative jurisdiction objection.

[49] I have considered the case authorities and the reasoning provided for the delay. On the material currently before me I find that the Applicant has not demonstrated that the Applicant has adequately explained the period of the delay or that there are exceptional circumstances sufficient for me to exercise my discretion to extend time. I refuse the application for an extension of time. The Applicant has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed. I Order accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.394(3).

 2  Wheelan C, [2009] FWA 1638, [30] and [31].

 3   Lawler VP, [2010] FWA 1394.

 4   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 6   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others [2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd [2012] FWA 2721.

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