Nash v Coles Supermarkets Australia Pty Ltd

[2016] FWC 2141

[2016] FWC 2141

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Deanne Nash
v
Coles Supermarkets Australia Pty Ltd T/A Coles
(U2015/6687)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 7 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances

warranting allowing a further period for the making of an application - application

dismissed.

[1]        Ms Deanne Nash (the Applicant) made an application which was received by the Fair

Work Commission (the Commission) on 28 July 2015 under s.394 of the Fair Work Act 2009

(the Act) alleging that the termination of her employment by Coles Supermarkets Australia

Pty Ltd (Coles – the Respondent) on 25 June 2015 was unfair. The application was made

twelve days outside the 21 day statutory timeframe.

[2]        On 29 July 2015 the Commission wrote to Ms Nash indicating that her application had

been lodged outside the 21 day timeframe specified in the Act.

[3]        Directions were issued on 5 and 6 August 2015 requiring the parties to file an outline

of submissions and any evidentiary material they intended to rely on regarding the extension

of time issue. The matter was listed for hearing on 10 September 2015. However, on

19 August 2015 Ms Nash’s father emailed the Commission advising, inter alia, that Ms Nash

was too ill to attend the hearing and that she intended to rely upon the material set out in her

application. Against that background, the Commission cancelled the listing and decided to

determine the matter on the papers. In the circumstances, Ms Nash was given until the close

of business on 18 September 2015 to provide the Commission with any additional material

she may wish to rely on in support of her application. Ms Nash’s father emailed some further

material to the Commission on 17 September 2015.

[4]        For the reasons outlined below, I have found that there are no exceptional

circumstances warranting the granting of a further period for the making of an application

under s.394 of the Act. Accordingly, Ms Nash’s application cannot proceed and will be

dismissed.

Background

[5] Ms Nash commenced employment with Coles in July 2007 and was dismissed on

25 June 2015 for allegedly assaulting another staff member by elbowing her in the ribs.
[2016] FWC 2141

[6]        As previously noted, Ms Nash’s application was received by the Commission on

28 July 2015, twelve days outside the 21 day statutory timeframe.

The Relevant Legislation

[7] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under

Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[8]        In deciding whether to allow a further period for an application to be made the

Commission must take into account the matters set out in s.394(3) above. I will deal with each

of those matters separately.

(a) The reason for the delay

[9]        Ms Nash stated in her application that she was unable to complete her application form

as she had been having major issues with her mental health as a result of her dismissal, adding

that she was under constant medical supervision and medication. Ms Nash further stated that

it was only upon reading the application form that she became aware of the 21 day timeframe

for lodging an unfair dismissal application.

[10]      In her written submissions Ms Nash stated, among other things, that:

“I missed the 21 day cut off to make a claim with Fair Work Australia for unfair

dismissal. I fully understand that not knowing is no excuse, nor is the fact that I was

depressed as most people feel that way after losing their job.”

[11] Coles submitted that Ms Nash had failed to provide any medical certificates or other

evidence to support her claim that she was unable to lodge her claim within the 21 day
[2016] FWC 2141

timeframe due to her medical condition. Coles also submitted that ignorance of the 21 day

timeframe is not an exceptional circumstance, relying on the decision in Cheyne Leanne Nulty

1

v Blue Star Group (Nulty) to support that submission.

[12]      First, I note that Ms Nash provided no evidence to support her submission that her

medical condition precluded her from lodging her application with the 21 day timeframe. In

the absence of any such evidence, little weight can be attached to her claim in this regard.

[13]      Beyond this, Ms Nash conceded in her application that she was not aware of the 21

day time frame until she read the unfair dismissal application form. As stated in Nulty:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional

circumstance ...”

[14]      By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in

the Act which deals with the time for making a general protections application in respect of a

dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[15]      Taken together, the above considerations do not point to the existence of exceptional

circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[16]      Ms Nash did not directly address this factor in her submissions, though in her

application she cites 25 June 2015 as the date she was notified of her dismissal and the date

her dismissal took effect.

[17]      Coles submitted that Ms Nash became aware of her dismissal on 25 June 2015.

[18]      This does not point to the existence of exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[19]      Ms Nash did not directly address this factor in her submissions.

[20]      Coles submitted that there was no suggestion that Ms Nash took any action to dispute

her dismissal other than lodging her unfair dismissal application.

[21]      This does not point to the existence of exceptional circumstances.

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

[22]      Ms Nash did not directly address this factor in her submissions.

[23]      Coles did not raise any special prejudice grounds in its submissions, other than noting

that the mere absence of prejudice to the employer was not a sufficient basis to grant an

2

extension of time	.
[2016] FWC 2141

[24]      I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[25]      Ms Nash stated in her application that the allegation made by her fellow staff member

that she had been assaulted was vexatious and untrue and that she was not given a fair hearing

when discussing the allegation. In her application, Ms Nash also stated that she had been

bullied by management and that there was a total lack of workplace protection and duty of

care for her by Coles in respect of a difficult customer who had previously been banned from

the Coles store at which she worked. In her written submissions, Ms Nash contended that:

“What happened to me was WRONG and I simply want a chance to be heard …”

[26]      Coles submitted that the merits of Ms Nash’s application were not of a nature to

warrant consideration as to whether an extension of time should be granted.

[27]      In circumstances where a number of issues are disputed and based on the limited

material before the Commission, I am unable to form a considered view as to the merits of the

application. As such, I consider this factor to be a neutral consideration.

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

[28]      Ms Nash did not directly address this factor in her submissions.

[29]      Coles submitted that no issues arise in respect of this consideration.

[30]      Against that background, I consider this factor to be a neutral consideration.

Conclusion

[31]      The question of exceptional circumstances was dealt with by a Full Bench of Fair

Work Australia in the decision of Nulty in the following way:

“[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.”

[2016] FWC 2141

[32] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the

decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the

granting of further period for the making of an application for an unfair dismissal remedy.

[33]      Accordingly, Ms Nash’s application will be dismissed. An order to that effect will be

issued in due course.

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1

(2011) 203 IR 1

2

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300