Ms Zita Abou Tannous v Moffat Pty Ltd
[2023] FWC 1879
•28 JULY 2023
| [2023] FWC 1879 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Zita Abou Tannous
v
Moffat Pty Ltd
(C2023/3222)
| COMMISSIONER P RYAN | SYDNEY, 28 JULY 2023 |
Application to deal with contraventions involving dismissal
Introduction
This decision concerns an application by Ms Zita Abou Tannous (Ms Abou Tannous/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, Ms Abou Tannous stated her employment with Moffat Pty Ltd (Respondent) commenced on 28 March 2023 and that although she was notified of her dismissal on 11 May 2023, her dismissal took effect from 12 May 2023.[1] The Application was made at 12:04am on 3 June 2023.
In its Form F8A Response, the Respondent stated that the Applicant was notified of her dismissal on 11 May 2023 and it took effect on the same day. The Respondent objected to the Application on the ground that it was not made within 21 days after the dismissal took effect.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). If the Respondent’s contention is correct, the period of 21 days ended at midnight on 1 June 2023. If the Applicant’s contention is correct, the period of 21 days ended at midnight on 2 June 2023. By either date, the Application was filed out of time.
The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The Applicant filed materials chief, and in reply, in which submissions and evidence were intertwined. These materials were admitted into evidence as Exhibit A1 and Exhibit A2, with those parts which are clearly submission being afforded the appropriate weight.
The Respondent filed written submissions and witness statements from:
·Ms Cindy Bray, the Respondent’s NSW Service Manager (Exhibit R1); and
·Mr Paul Brown, the Respondent’s National Service Manager (Exhibit R2 and Exhibit R3).
The matter was heard on 24 July 2023. The Applicant was self-represented. The Respondent was represented by Mr J Myburgh of Ai Group.
For the reasons that follow, I decline an extension of time under s.366(2).
Effective date of dismissal
The dispute concerning the effective date of dismissal arose out of the Applicant’s misunderstanding that a dismissal took effect from the day after its notification. The Applicant accepted under cross examination that she was advised on 11 May 2023 that she was dismissed and that was her last day of employment with the Respondent. That is consistent with the evidence of Mr Brown.[2]
Accordingly, I find the date the dismissal took effect was 11 May 2023.
This means the Application was filed 23 days after the date the dismissal took effect, and 2 days outside the 21 day period.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare.[3] Exceptional circumstances may 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 can be considered exceptional.[4]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
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 test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[5]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[6]
Reason for the delay – Background
In response to question 1.4 of the Application, the Applicant explained the reason for not making the Application within 21 calendar days of the dismissal taking effect as follows:
I didn’t know about a the [sic] time frame, I waited for legal aid advise.
In her evidence before the Commission, the Applicant stated that she was not aware of the Commission’s processes and unfair dismissal laws and that only after speaking with a friend, she was provided with a telephone number to contact Legal Aid NSW. The Applicant was not able to state when she spoke with her friend, or when she contacted Legal Aid NSW, beyond stating that she contacted Legal Aid NSW the day after she was provided with the telephone number.
On the morning of 1 June 2023, the Applicant received a telephone call from a “paralegal” at Legal Aid NSW who informed her of the 21 day time limit to lodge applications with the Commission and requested relevant information from the Applicant. The Applicant was advised to expect a telephone call from a solicitor later that day.[7] In relation to the information requested by the ‘paralegal’, the Applicant stated she was asked about a ‘date’ for the ‘21 day reason’, but does not recall providing a date of dismissal.
In the afternoon of 1 June 2023, and having not received a telephone call, the Applicant contacted Legal Aid NSW to speak to a solicitor and was advised the earliest available time for a consultation was 2 June 2023.[8]
At approximately 5:00pm on 1 June 2023, the Applicant accessed the Commission’s website and telephoned the Commission and sought assistance. The Applicant stated that a staff member of the Commission guided her through a process to ‘register’.
At 5:09pm on 1 June 2023, the Applicant received an automated email from the Commission as part of the registration process for the Online Lodgement Service. [9] The email stated that the user is required to click on a link to complete the registration process. In her evidence before the Commission, the Applicant could not recall whether she saw that email on the same day or at a later date, or whether she ever clicked on the link.
The Applicant also stated that she experienced technical difficulties with completing an application form which did not allow her to enter text.
The Applicant stated that she cannot recall what she did on 2 June 2023, but would have been busy with appointments.
At 3:40pm on 2 June 2023, the Applicant received an email from Legal Aid NSW.[10] That email advised the Applicant that she was not eligible to make an unfair dismissal application based on her period of service but could make a general protections application.
The email from Legal Aid NSW also included extracts of various sections of the FW Act and provided clear instructions in capitalised red text to file the application by midnight tonight. A blank Form F8 application form was attached.
The Applicant subsequently completed the Form F8 application form and filed the Application by email at 12:04am on 3 June 2023.
Reason for the delay - Consideration
I do not accept the Applicant has an acceptable or reasonable explanation for the delay for the following reasons.
First, to the extent that the Applicant was not aware of the Commission’s processes or unfair dismissal laws, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[11]
Second, in relation to the Applicant contacting the Commission, it is apparent that the process to ‘register’ that the Applicant was guided through, was a process to register for the Commission’s Online Lodgement Service and was not the making of an application.
Third, where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties in lodging an application before the Commission, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.[12]
In Giles v Coal Train Australia Pty Ltd[13], Deputy President Asbury (as the Vice President then was) stated:
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application.
[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
In this case, the Applicant has not provided any evidence beyond the bare assertion that she experienced technical difficulties completing ‘a form’. Furthermore, it is unclear as to what ‘form’ the Applicant was completing and there was no reason why, if she was indeed experiencing technical difficulties, that an application could not have been made by telephone.
Fourth, I do not accept that waiting for legal advice is an acceptable or reasonable explanation.[14] As stated in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission. (Emphasis added)
The Commission’s website has a range of resources to assist self-represented litigants and there is no reason why the Applicant could not have filed the Application and continued to seek legal advice.
Finally, I note the advice of Legal Aid NSW to file the Application by midnight on 2 June 2023. While the Applicant does not recall providing a date of dismissal to Legal Aid NSW, I infer from the instructions in the email from Legal Aid NSW and the Applicant’ response to q.1.4 of the Application, she advised Legal Aid NSW her dismissal was effective from 12 May 2023.
For completeness, there is no evidence of representative error and any error in relation to the calculation of the 21 day period was on the part of the Applicant. [15]
Reason for the delay – conclusion
Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[16]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[17]
Although the Applicant contacted Legal Aid New South Wales for advice, the Applicant did not make any attempt to dispute her dismissal with the Respondent prior to filing the Application. I do not consider this circumstance weighs in favour of a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the General Protections Application
The FW 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 filed 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. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Z. Abou Tannous, Applicant.
J. Myburgh, of Ai Group for the Respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams video-link):
24 July.
<PR764724>
[1] See response to q.1.3 in the Application.
[2] Exhibit R2 at [11].
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Exhibit A1 (Hearing Book at p.17).
[8] Ibid.
[9] Exhibit A2 (Hearing Book at p.65).
[10] Exhibit A2 (Hearing Book at p.59-64).
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[12] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[13] [2020] FWC 2274 at [38]-[39].
[14] Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [59]-[63].
[15] Sandra Mueller v Coles supermarkets Australia Pty Ltd[2022] FWC 1852 at [13]; Michael Harvey v Compass-Group (Australia) Pty Ltd[2021] FWC 1375 at [57].
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[17] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
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