Narelle Riggs v Noni B Holdings Pty Ltd

[2019] FWC 3133

[2019] FWC 3133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Narelle Riggs
v
Noni B Holdings Pty Ltd
(U2019/2580)

DEPUTY PRESIDENT DEAN SYDNEY, 16 MAY 2019

Application for an unfair dismissal remedy – extension of time.

[1] Ms Narelle Riggs was employed by Noni B Holdings Pty Ltd (Noni B) until her dismissal on 7 November 2019.

[2] On 8 March 2019 Ms Riggs lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she had been unfairly dismissed by Noni B. Her application was made 100 days outside the 21 day period prescribed by the Act and cannot proceed unless a further period is allowed for the application to be made under s.394(3).

[3] The parties provided written submissions and agreed that the extension of time issue could be determined ‘on the papers’.

Incorrect respondent named in application

[4] In the submissions filed by Noni B it was identified that Ms Riggs incorrectly named the respondent in the application as “Noni B Group Pty Ltd” rather than “Noni B Holdings Pty Ltd”. I am satisfied that I should exercise my discretion pursuant to s.586 of the Act to amend the name of the respondent, there being no evidence of any prejudice caused to Noni B in doing so.

Extension of time

[5] Section 394(3) of the Act provides:

(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.

[6] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if I am satisfied that there are exceptional circumstances can I then exercise my discretion to extend time. The onus of establishing exceptional circumstances rests with the applicant.

[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[8] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[9] Ms Riggs filed a statement in support of her application for an extension of time. She advanced two principal reasons for the delay of filing the application:

1. After the dismissal, she was focused on her rights in relation to her workers’ compensation claim; and

2. She was not aware of the 21 day time limit for the filing of an unfair dismissal remedy.

[10] Ms Riggs said that she had been receiving workers compensation payments arising from a back injury and was given a full clearance to return to work in late October 2018. She believed her dismissal was unfair but her main focus initially was to pursue her continuing rights to receive workers compensation for injuries that she sustained in the course of her employment with Noni B.

[11] Ms Riggs said that she had a number of conversations with a case manager of the workers compensation insurer after the dismissal but was not advised to seek legal advice and was not told about any 21 day period within which to make a claim.

[12] According to her, it was not until 1 February 2019 when she spoke with someone in a hearing clinic about her circumstances that it was suggested she seek legal advice. She then made enquiries and met with a lawyer, Mr Tancred, on 7 February 2019.

[13] Ms Riggs said that she was told by Mr Tancred there was normally a 21 day limit for bringing a claim but the claim should be lodged and “we could assess what approach the employer took to the 21 day limitation issue”. I note that there is no explanation as to why Ms Riggs took a further 29 day period to lodge her unfair dismissal remedy application after her meeting with Mr Tancred on 7 February 2019.

[14] The time limit prescribed by the Act is a balance between the interests of employers and the rights of employees seeking a remedy for an alleged unfair dismissal. It is only in exceptional circumstances that the 21 day period may be extended. On the material before me, I am not satisfied that the reasons for the delay proffered by Ms Riggs constitute an ‘exceptional circumstance’.

[15] It is not unusual for a dismissed employee to be unfamiliar with the relevant legislation, and mere ignorance of the statutory time limit is not an exceptional circumstance 2.For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon.

[16] Furthermore, stress, shock and confusion are not uncommon reactions from a person who has been dismissed, and are not normally regarded as exceptional.

[17] Although Ms Riggs became aware on 7 February 2019 of the 21 day time limit for filing a claim, her application was not filed until 8 March 2019. Ms Riggs provided no explanation and there was no suggestion of any impediments causing this further delay.

[18] There is no evidence that Ms Riggs was not capable of making the application within the requisite period. She chose to give priority to her workers compensation claim over seeking redress for her alleged unfair dismissal.

[19] I find that Ms Riggs’ explanation for the delay in filing her application does not support a finding that her circumstances were exceptional. This factor weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[20] There is no dispute that Ms Riggs was advised of her dismissal on 7 November 2018. This factor weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[21] Ms Riggs took no action to dispute her dismissal until this application was lodged. I find that this weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[22] I am not persuaded that Noni B would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

The merits of the application

[23] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’³

[24] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm⁴ considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’⁵

[26] I do not consider that there are other relevant persons in a similar position to Ms Riggs, I therefore find this to be a neutral consideration.

Conclusion

[27] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Ms Riggs. Her circumstances are not out of the ordinary course, unusual, special or uncommon. Ms Riggs’ application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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1 [2011] FWAFB 975.

 2 Ibid at [14].

3 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

4 [2015] FWC 8885.

5 Ibid at [29].