Natasha Popovic v Skope Group Pty Ltd T/A Scream Visual

[2015] FWC 6173

[2015] FWC 6173

FAIR WORK COMMISSION

DECISION

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

Natasha Popovic
v
Skope Group Pty Ltd T/A Scream Visual
(U2015/9539)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Natasha Popovic alleged that the termination of her employment by Skope Group Pty Ltd on 29 June 2015 was unfair.

[2] Her unfair dismissal application lodged on 21 July 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Popovic advised that she posted her unfair dismissal application by express post on 17 July 2015. The envelope was addressed to the Commission’s PO Box number. Australia Post guarantee that an express post letter posted within the Express Post network is guaranteed to occur the next business day. The next business day in this case was 20 July 2015. The Australia Post tracking record shows that the item was received by Australia Post at 9.59am on 17 July 2015. Had Australia Post met its guarantee Ms Popovic’s application would have been lodged within the time period prescribed by the Fair Work Act 2009.

[6] Ms Popovic relies upon the decision of the Full Bench in Leung v Chinese Community Services Centre Inc²to support a finding that the failure of Australia Post to meet its guarantee means that an applicant has provided a reasonable explanation for the delay in lodging an application for an unfair dismissal remedy. No submission was made to the contrary. I therefore find that Ms Popovic has provided a reasonable explanation for the delay in lodging her application. This weighs in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[7] Ms Popovic was aware of the dismissal when it took place. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[8] There was no evidence that Ms Popovic contested her dismissal when it occurred or subsequently other than lodging this application. This weighs against a finding that there are exceptional circumstances.

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

[9] There was no evidence of any prejudice to Skope Group. Skope Group relied upon both the delay in lodging the application and the delay in filing material in support of Ms Popovic’s application for an extension of time. However this does not address the question of what prejudice the employer would suffer if an extension of time was granted. This weighs in favour of finding that there are exceptional circumstances.

(e) the merits of the application;

[10] Ms Popovic submitted that her employment was terminated because she did not confirm when she was resigning from her employment. So much is confirmed by her letter of termination. On 11 June 2015, Ms Popovic advised Skope Group that she intended relocating to Brisbane but she had not made a final decision. She advised that when she returned from leave she would advise Skope Group of her final decision. On the day she returned from leave she attended a meeting and at the end of the meeting she was asked when she would be resigning. She advised that she was still awaiting advice from her real estate agent about being released from her lease obligations. A further meeting was then held and Ms Popovic was advised that her employment was terminated effective immediately and she was paid two weeks’ pay in lieu of notice.

[11] The reasons for her dismissal are set out in the letter of termination. If this was the reason for her dismissal, Ms Popovic has a reasonable claim that her dismissal was unfair. At a minimum Ms Popovic was required to provide notice of her resignation in accordance with her contract of employment or any applicable award. While it may have been unsettling for Skope Group to be advised that an employee may resign that in itself does not provide a valid reason for the termination of her employment. There was no evidence that Ms Popovic was advised that her employment was at risk if she did not confirm when her resignation was to take effect. This supports Ms Popovic’s claim that her dismissal was unfair.

[12] I consider this criterion weights in favour of a finding that there are exceptional circumstances.

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

[13] There were no submissions on this criterion.

Conclusion

[14] I am satisfied that Ms Popovic has a reasonable explanation for the delay and the merits of her claim and the lack of prejudice to Skope Group all support a finding that there are exceptional circumstances.

[15] It is then necessary to determine if I should exercise my discretion to grant Ms Popovic’s application. It was submitted that I should not exercise my discretion to extend time because Ms Popovic did not comply with the directions of the Commission. Directions were issued to Ms Popovic on 28 August 2015 to file material in relation to her extension of time application by 10 August 2015. On 9 August 2015, Ms Popovic filed material in support of her claim that her dismissal was unfair but did not address her application for an extension of time. Ms Popovic advised that she did not understand what was required of her.

[16] Had Australia Post delivered Ms Popovic’s application in accordance with its guarantee Ms Popovic’s application would have been lodged in time. I am not satisfied that Ms Popovic as an unrepresented party has deliberately failed to comply with Commission directions.

[17] I therefore consider that I should exercise my discretion in favour of Ms Popovic’s application. I have therefore decided to allow Ms Popovic a further period for making her application to the day it was made namely 21 July 2015.

DEPUTY PRESIDENT

Appearances:

N. Popovic on her own behalf.

A. Orren for the Respondent.

Hearing details:

2015.

Melbourne:

4 September

<Price code A, PR571620>

 1   [2011] FWAFB 975

2 [2015] FWCFB 2106

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