Ms Zelda Elward v Asset Shrinkage Solutions Pty Ltd T/A Asset Shrinkage Solutions

[2014] FWC 4095

[2014] FWC 4095

FAIR WORK COMMISSION

DECISION

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

Ms Zelda Elward
v
Asset Shrinkage Solutions Pty Ltd T/A Asset Shrinkage Solutions
(U2014/5838)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Unfair dismissal.

[1] On 24 March 2014, Ms Zelda Elward(Ms Elward or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Asset Shrinkage Solutions Pty Ltd T/A Asset Shrinkage Solutions (Employer).

[2] The Applicant alleges that her dismissal took effect on 1 March 2014.

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

[4] In response to the application, the Employer asserts that the Commission has no jurisdiction to deal with the application because:

● the application was not made within 21 days after the alleged dismissal took effect (that is, 24 March 2014) and there are no exceptional circumstances pursuant to s.394(3) of the FW Act; and

● additionally or alternatively, the Applicant is a casual employee and has not been dismissed.

[5] 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.

[6] Ms Elward has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 24 March 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[7] 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.”

[8] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 24 March 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

[9] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 24 March 2014.

APPLICANT’S CASE

[10] The Applicant’s response to both jurisdictional objections is short and is reproduced as follows:

“The reason the claim was late was that I had trouble sending the claim in as the site kept sending it back to me saying it was in the wrong format, when I found out how to reformat the document it was the day the document was due, but the internet would not work, I tried all day it was not until after 12.00 pm that I was able to send it this was on a Saturday, So they did not register the document until the Monday, I did not know at this time I thought that it would register when it was received.”

CONSIDERATION

[11] 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.

[12] 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.

[13] 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”.

[14] The burden lies with Ms Elward to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

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

[15] The Applicant’s reasons for not submitting the application before the statutory timeline of 21 days can be fairly described as technical and timing.

[16] Ms Elward does not address the Employer’s jurisdictional objection that she was not dismissed from her employment.

[17] Time is one dimensional - it goes forward. Experience teaches us that if we leave things to the last moment, it is possible that other matters happen at the same time and we are unable to meet deadlines. Such occasions are far from exceptional, unique or rare - to our regret they are common.

[18] For the sake of brevity, Ms Elward failed to meet the statutory timeline because of formatting and her Internet access would not function. The possibility of these events occurring are common and not exceptional. To accept these circumstances as valid reasons for a delay in filing the application, would ignore the elapsed time between the dismissal (or alleged dismissal in this case) and the onset of the technical problems and render the statutory timeline meaningless.

[19] The Applicant has not addressed any of the remaining criteria in s.394 (3) of the FW Act. Consequently, I have no submission from Ms Elward to take into account.

[20] With regard to paragraph 394 (3)(d) of the FW Act, it is unnecessary to determine on the Employer’s jurisdictional objection that Ms Elward was not dismissed. However, for completeness, I note that the Employer’s detailed submission was not responded by the Applicant as she was required to do pursuant to directions issued on 8 May 2014.

CONCLUSION

[21] For the above reasons, I am not satisfied that are exceptional circumstances to allow Ms Elward to file her application beyond the statutory timeline of 21 days. Accordingly, the application must be dismissed. An order to this effect will be issued with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May 2014.

Respondent: 6 June 2014.

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