Nanako Matsumura v Froffine Bubbles Pty Ltd
[2021] FWC 3705
•1 JULY 2021
| [2021] FWC 3705 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Nanako Matsumura
v
Froffine Bubbles Pty Ltd
(C2021/1905)
DEPUTY PRESIDENT CROSS | SYDNEY, 1 JULY 2021 |
Application to deal with contraventions involving dismissal.
Introduction
[1] Nanako Matsumura (the Applicant) commenced employment with Froffine Bubbles Pty Ltd (the Respondent) on or about 4 July 2020 (as recorded in her statement) or 23 September 2020 (as outlined in the Form F8).
[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was misconduct relating to allegations the Applicant took food from the restaurant operated by the Respondent.
[3] The Applicant has applied for a general protections remedy under s.365 of the Fair Work Act 2009 (Cth) (the Act). That application was lodged on 4 April 2020.
The Application was filed outside the statutory timeframe
[4] Applications for general protections remedies must be filed within 21 days after the dismissal took effect. The Applicant’s employment was terminated by the Respondent with effect from 10 March 2021. Based on the termination date taking effect on 10 March 2021, the application for a remedy should be lodged no later than 31 March 2021.
[5] The application was therefore lodged outside of the time prescribed. The application was made in effect four (4) 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 general protections remedy may be made if it satisfied that there were exceptional circumstances.
[6] As is evident from the text of s.366 of the Act, the statute allows discretion to grant a further period within which to file an application. That 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
[7] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
(a) the reason for the delay;
(a) any action taken by the Applicant to dispute the dismissal;
(b) prejudice to the Respondent including prejudice caused by the delay;
(c) the merits of the application; and
(d) fairness as between the Applicant and other persons in a similar position.
[8] Each of the matters need 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, when viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and ask whether collectively the matters constitute exceptional circumstances.
[9] 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 that, taking into account s.366(2) of the Act, there are exceptional circumstances. I now consider these matters in the context of the Application.
(a) Reason for the delay
[10] The Act does not specify what reason for delay might tell in favour of granting 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 entire delay will usually weigh in the Applicant’s favour, however all of the circumstances must be considered.
[11] The reasons for delay provided by the Applicant were as follows:
1. that the Applicant did not know that there was a 21-day time limit for the making of an application;
2. that the Applicants ill-health prevented her from filing her application earlier;
3. that the Applicant waited two weeks from the time of her termination of employment for payslips to be provided that would assist her in understanding allegations of underpayment that she made; and
4. that the time of the period of delay was primarily over the Easter break.
(1) Ignorance
[12] It has been firmly established by numerous decisions of this Commission that ignorance of the 21 day limitation period does not constitute an acceptable reason for delay. 1 I further note in this matter that the Applicant had been dealing in the last week of the 21 day period directly with the Fair Work Ombudsman (the Ombudsman) and I would find it difficult to understand that the Ombudsman, having alerted the Applicant to the possibility of commencing what she has termed as an unfair dismissal, would not also have advised of the time limitation period.
(2) Ill Health
[13] Regarding the Applicant’s assertion that she was precluded from filing by way of ill-health I note that in her Form F8 application, the Applicant provided the following chronology:
• “April 1st: I have got a phone call from Fair Work Ombudsman. They told me that they will assist with underpayment and payslips but they do not assist for unfair dismissal. They gave me the phone number of the Fair Work Commission for the unfair dismissal. I spoke with a staff of the Fair Work Commission Rassell on the day. He helped me with finding the document that I need to fill up.
• April 2nd: I was feeling unwell with fever, short breathing while working on filling up the document I was given.
• April 3rd: As I was not well, I went to check Covid-19 test on morning. I rested all day in a bed.
• 4th: I got a result of the Covid19 test saying “NEGATIVE” I felt a bit better and completed the document.”
[14] It is clear from the above chronology that the Applicant was not precluded by her health from completing the Application. She chose to rest and was able to travel at least as far as necessary to receive a Covid-19 test. For ill-health to provide a valid reason for the delay I consider that such ill-health must have resulted in incapacitation of the Applicant, rather than simply rendering her in a state within which she preferred rest rather than completing the application. The Applicant’s ill-health was not an acceptable reason for the delay.
(3) Fair Work Ombudsman
[15] The Applicant described this reason as her number one reason for the delay. I have difficulty understanding how dealings with the Ombudsman relating to a separate issue, albeit an issue that also related to the Applicant’s employment and its termination, could be an acceptable reason for the delay in filing the application. That is particularly so where almost all of the communication with the Ombudsman occurred within the 21-day period from the termination of employment.
(4) Easter Holiday
[16] The 2021 Easter Holiday period occurred from Friday 2 April until Monday 5 April. The Applicant in fact filed the application on Easter Sunday. The ordinary calculation of time pursuant to the Act does not involve any accounting for public holidays or weekends. I also note that the first day of the delay, after the expiry of the 21-day period, was not a public holiday. On its own, the occurrence of the Easter Holiday at that particular time was not an acceptable reason for the delay.
Summary Regarding Delay
[17] I do not consider that any individual reason for delay raised by the Applicant has constituted an acceptable reason for delay. I also do not consider that any combination of those reasons would amount to an acceptable reason for the delay. In the circumstances I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter which weighs against the Applicant in this case.
(b) Action Taken to Dispute the Dismissal
[18] While the Applicant took action to dispute the payments that she had received and various alleged annual leave entitlements through the Ombudsman, the Applicant did not take any steps to in fact challenged her dismissal until the filing of the application.
[19] It is also not apparent that the Respondent was in any way aware of the steps taken by the Applicant in agitating her matter with the Ombudsman and so the Respondent cannot be considered to have been forewarned by active disputation by the Applicant.
[20] In the circumstances this factor weighs as a neutral consideration.
(c) Prejudice
[21] When considering the question of prejudice, the mere absence of prejudice is not necessarily a factor that which weighs in favour of an Applicant for an extension of time. The Applicant did not put to me that there was an issue of prejudice or any submissions on that issue. In the circumstances I consider that this matter weighs neutrally in this case.
(d) Merits of the Application
[22] As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined or agitated it is not appropriate to make an assessment about the merits of the case based on the very limited material that is available to me.
[23] From the materials it is apparent that the Applicant’s major concern relates to alleged underpayments and that the general protections application is somewhat of an afterthought. As it is currently expressed in the application, the Applicant’s case does not easily fit within the general protections jurisdiction although I note that the form F8 application is not in any way a pleading and the Applicant would be open to more properly express her case were she to proceed forward.
[24] It seems to me that it is at least arguable that the Applicant may be able to express a case that will have some possibility of succeeding in the general protections jurisdiction. In the circumstances I weigh this matter as a neutral consideration.
(e) Fairness as Between the Applicant and Others
[25] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. This consideration recognises the importance of applying consistent principles in similar cases thus ensuring fairness as between the Applicant and other persons in a similar position.
[26] The Applicant did not put any submissions on this issue nor did the Applicant bring to my attention any relevant decision of the Commission which was in similar terms to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.
Conclusion
[27] Statutory time limits that are applicable to the exercise of a person’s right to bring a general protections remedy application are an expression of Parliament’s intention that that right should be exercised promptly so as to bring about certainty of time limits. Those time limits seek to balance the right to bring an action against the desirability for prompt action and certainty.
[28] The reason for timeliness is that a party should be able to know that there is a question about an action that has been taken by one party in relation to a dismissal and 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.
[29] A person who seeks relief by a general protections action must make the application within 21 days after their dismissal takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.
[30] Weighing all of the matters that I must weigh, and taking into account the matters set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of an exercise of my discretion to allow a further period of time within which an application could be made. I did not find that there are acceptable reasons for delay and all other factors were weighed as neutral considerations.
[31] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application, and the application for an extension of time is therefore refused. The application for a general protections remedy made by the Applicant is dismissed.
[32] As was noted in the proceedings this decision does not preclude the Applicant maintaining her pursuit of allegations regarding underpayments, annual leave, and outstanding notice on termination with the Ombudsman.
DEPUTY PRESIDENT
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1 See, for example, Rose v BMD Constructions Pty Ltd [2011] FWA 673.
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