Ms Yngrid Mareza Mesones Tello v Goodstart Early Learning Ltd
[2020] FWC 5515
•19 OCTOBER 2020
| [2020] FWC 5515 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Yngrid Mareza Mesones Tello
v
Goodstart Early Learning Ltd
(U2020/12956)
COMMISSIONER CIRKOVIC | MELBOURNE, 19 OCTOBER 2020 |
Application for an unfair dismissal remedy.
[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 15 October 2020.
Introduction
[2] Ms Mesones Tello (Applicant) commenced employment with Good Start Early Learning Ltd (Respondent), on or about 13 December 2016. She was employed in the position of Educator (Diploma Qualified).
[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). There is no dispute that the application was lodged on 28 September 2020.
[4] The Respondent contends that the Applicant was dismissed due to not satisfying an inherent requirement of her particular employment that, each year, she must be vaccinated against influenza.
Application was filed outside the statutory timeframe
[5] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
[6] There is no dispute between the parties that the effective date of termination was 2 September 2020 and that it was received by the Commission on 28 September 2020. Based on a termination date taking effect on 2 September 2020, the application for a remedy should have been lodged by no later than 23 September 2020.
[7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 5 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
[8] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
[9] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
• the reason for the delay;
• whether the Applicant first became aware of the dismissal after the date it took effect;
• any action taken by the Applicant to dispute the dismissal;
• prejudice to the Respondent including prejudice caused by the delay;
• the merits of the application; and
• fairness as between the Applicant and other persons in a similar position.
[10] Each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[11] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances.
[12] I now consider these matters in the context of the Application.
Reason for the delay
[13] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.
[14] In essence, the Applicant cites the following reasons for the delay:
• she “thought” she had made the application in time but didn’t realise it took 5 days for letter to arrive when she posted it from the post office; 1
• she believed her attendance at the post office on the last day for filling was sufficient to complete her application within the 21 day time limit;
• she was “depressed” at the time she made the application;
• she was not familiar with Australian law; 2 and
• she had “not (sic) job and money in the middle of this pandemic….took me a while the (sic) settle and back to track”. 3
[15] The Respondent contends that the Applicant’s explanation “falls short of establishing anything out of the ordinary course, or unusual, or special, or uncommon”. In support of this position, the Respondent advances (amongst other things) the following:
• the issue of a mistaken belief that the act of posting an application equated to lodging it has been considered by a Full Bench of the Commission who determined it was not unusual or out of the ordinary; 4
• the Commission has previously held that items delivered within the delivery estimate do not provide an acceptable reason for delay and are a matter entirely within the control of an applicant; 5 and
• the Commission has previously held that attempting to post an application by “surface mail” on the second last business day available within the time period was “not, on any level, a serious attempt to lodge the application within the specified time limit”. 6
[16] The Applicant at the hearing conceded that she made no inquiries at the post office regarding the availability of expedited postage options. Further, she also conceded that she knew, at the time of attending the post office on 23 September 2020, it was “impossible” for the application to reach the Commission within the 21 day time limit but relies on her “ignorance” of the Australian system to explain the delay. Despite confirming that she had access to both internet and email at home, the Applicant could not offer an acceptable explanation for electing to make her application by regular post rather than the Commission’s online lodgement service.
[17] Regrettably, I do not regard the reasons advanced by the Applicant, either collectively or separately, as constituting an acceptable explanation for the delay. In coming to this conclusion, I have regard to the following:
• in sending her application on 23 September 2020 via regular post, the Applicant allowed less than a day for the application to be received by the Commission within the statutory time frame;
• the Applicant made no inquiries regarding expedited post at the post office;
• the Applicant provided no credible explanation as to why she did not utilise the Commission’s online lodgement service;
• to the extent that the Applicant relies on her lack of knowledge of Australian law or a misapprehension that the date of posting the application was the date of lodgement as a reason for the delay, I note that it is uncontroversial that ignorance of the law does not constitute exceptional circumstances; and
• there is no evidence before the Commission as to the Applicant’s financial or employment situation or the time period over which any such hardship was experienced.
[18] As to the Applicant’s submissions regarding her mental health, I note there is no evidence before the Commission by way of medical reports supporting this contention.
[19] I have great sympathy for the Applicant’s position. However, having regard to the circumstances of this case, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
Whether Applicant first became aware of the dismissal after the date it took effect
[20] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the Applicant accepted that she was dismissed on 2 September 2020 and became aware on that day. In the circumstances, that is a matter that is a neutral consideration.
Action taken by the Applicant to dispute their dismissal
[21] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The Applicant submits that she told the Respondent “I do not agree about the reason of the dismissal, and I do not feel like a risk the health of the children because I rejected the flu vaccination. My other colleagues got the flu shot but they still call sick with flu issues all the time”. The Respondent contends that the Applicant took no steps to contest her dismissal beyond filling the application.
[22] I am prepared to accept that the Applicant took steps to dispute her dismissal and, in the circumstances of this case, I consider this factor to weigh slightly in favour of the Applicant.
Prejudice
[23] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent accepted there was no prejudice. The Applicant made no submissions on this issue.
[24] I cannot identify any prejudice that would accrue to the business if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[25] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
[26] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
[27] The Applicant advances the following in relation to this factor: 7
• “I have another colleague, Ellen Pen, She was unfair dismissal before me. The company was unfair and rude to her. Do not let her say goodbye to the children as Kinder Teacher”;
• “I transferred from permanent to a casual educator this year. So We build relation with families and children, and suddenly you have to left with unfair reason and made you feel guilty for What?”; and
• “It made me sad, upset and devastated for my situation and the other colleagues, too.”.
[28] The Respondent contends that the Applicant is not in a “unique or special situation” when compared to other employees and there are no issues of fairness which are relevant making this a neutral consideration.
[29] I have reviewed a number of authorities in which the Commission considered the effect of a delay that is caused by reason of applications made by post, and specifically the extent to which those considerations might attract a finding that there is a credible explanation for a delay. Ultimately, cases of this kind will generally turn on their own facts. In the present case I regard this consideration as essentially neutral.
Conclusion
[30] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
[31] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
[32] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3), except the Applicant’s disputing of her dismissal, weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Ms Y. Mesonos Tello for herself
Mr G. Bartlett for the Respondent
Hearing details:
15 October 2020 via telephone
Printed by authority of the Commonwealth Government Printer
<PR723601>
1 Applicant’s Outline of Argument: Extension of Time.
2 Ibid.
3 Ibid.
4 Respondent’s Submissions at [15] – [17] citing Kibblewhite v Canberra Aluminium Centre Pty Ltd[2014] FWC 4350 at [8]; Kibblewhite v Canberra Aluminium Centre Pty Ltd t/a Alucom[2014] FWCFB 6732 at [7].
5 Respondent’s Submissions at [18] – [19].
6 Respondent’s Submissions at [22] citing Barbara Wiggins v Fielders Australia Pty Ltd[2012] FWA 10025 at [51].
7 Applicant’s Outline of Arguments: Extension of Time.
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