Paula Dimakos v Acquire Learning Pty Ltd T/A Acquire Learning
[2014] FWC 5125
•31 JULY 2014
| [2014] FWC 5125 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Paula Dimakos
v
Acquire Learning Pty Ltd T/A Acquire Learning
(C2014/1167)
COMMISSIONER RYAN | MELBOURNE, 31 JULY 2014 |
Application to deal with contraventions involving dismissal - extension of time not granted.
[1] This decision relates to an application filed by Ms Paula Dimakos (the applicant) under s.365 of the Fair Work Act 2009 (the Act). The application is for the Fair Work Commission (the Commission) to deal with a general protections dispute the applicant has with Acquire Learning Pty Ltd (the respondent).
[2] The application was filed outside the statutory time limit stipulated by s.366(1)(a) of the Act. The respondent identified this in its Form F8A response and submitted that the applicant did not identify any exceptional circumstances warranting an extension of time being granted.
[3] I wrote to the applicant on 17 July 2014identifying that, whilst the applicant had provided an explanation in her application documents as to why her application was not filed within the requisite period, the explanation given did not sufficiently address s.366 of the Act and I directed that the applicant file submissions addressing s.366 of the Act by close of business on 24 July 2014.
[4] The applicant did not file any submission by close of business on 24 July 2014.
[5] On 28 July 2014 the respondent’s representative, Herbert Smith Freehills, wrote in the following terms:
“We refer to the letter from Commissioner Ryan dated 17 July 2014 and note that the Applicant was required to file submissions with respect to why the Commission should grant an extension of time by Thursday 24 July 2014.
We note that the Applicant has not filed any submissions with the Commission.
In light of the Applicant's failure to lodge the General Protections Application in time as well as her failure to provide reasons justifying an extension of time, we respectfully request that the matter be dismissed.”
[6] In response to the above correspondence from the respondent’s representative, the applicant emailed my chambers, in part, as follows:
“Dear Associate FWC,
Dimakos v Acquire Learning Pty Ltd (C2014/1167)
I would like to draw your attention to the evidence provided in conjunction with the General Protections Form for the aforementioned case.
Within the evidence provided, there was a clear indication of the reasons associated with the late submission of the complaint.
The ONLY reason that a submission for an extension has not been lodged with the commission, is due to illness and the consistent harassment received by the defendants prior and during the course of this application.
I thank the Commission for its time and guidance, however, although I have ample evidence to incriminate the defendants on a number of matters, I lack the resources to seek and obtain justice.
Unfortunately, the law favours those who are financially well off rather than those who actually have valid and reasonable claims. It is disappointing that justice will not be served in this case, as that is the very least that I as a dedicated, passionate and loyal employee deserve."
[7] The following request was sent by email at 9.37 am on 29 July to the applicant by my Associate and was copied to Herbert Smith Freehills:
“Dear Ms Dimakos
Commissioner Ryan asks if you have any medical certificates to support your contention that the reason you have not filed submissions in support of an extension of time by Thursday 24 July 2014 is that you have been ill.”
[8] The response from the applicant received at 11.52 am on 29 July 2014 was as follows:
“I appreciate the Commissioner's request and understand that I have the right to submit an extention (sic). The truth of the matter is I am currently in no state to relive the events as submitted by my original application. I am mentally and physically exhausted and do not wish for this to drag on, as I know the process may be lengthy. My health and welbeing is of paramount importance and will take precedence at this point. I know that morally and ethically I am in the right and that will have to suffice.”
The Relevant Legislative Provisions
[9] Section 366 requires an application to be made within 21 days after the dismissal took effect. The amendment applies to dismissals that took effect after 1 January 2013. 1
[10] Sections 366(1)(b) and 366(2) provide the Commission with a discretion to grant an extension of time for filing if satisfied that there are exceptional circumstances. Section 366(2) is in these terms:
“366 Time for application
...
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[11] A Full Bench of Fair Work Australia (as it was then), in Cheyne Leanne Nulty v Blue Star Group 1, considered authorities regarding the term “exceptional circumstances” in the context of an application filed under s.366 of the Act and stated:
“[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.
[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[15]A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
Consideration
Reason for the delay - 366(2)(a)
[12] The Applicant contends that the primary reason for the delay in filing the application n this matter wasdue to her ill health. In the material filed with her application the Applicant contended as follows:
“The 21 days by which my submission needed to be lodged have elapsed. Due to the nature of the termination, I have been both physically and emotionally unwell and have felt quite traumatised by the way I was treated and exited from the company. I can provide medical evidence to attest to my state of mind and health issues over the past few weeks.”
[13] When specifically asked by the Commission if the Applicant had medical certificates to support her contention the Applicant failed to provide any medical certificates to the Commission.
Any action taken by the Applicant to dispute the dismissal - 366(2)(b)
[14] On the Applicant’s own material it is clear that the Applicant sought legal advice in relation to her dismissal. In her application in this matter the Applicant identifies that immediately after the dismissal, “I consulted with my employment lawyer who subsequently researched the applicable points of law and communicated that to (the Respondents) Legal Council (sic) accordingly”.
[15] A copy of the email sent from the Applicant’s representative to the Respondent was enclosed with the application in this matter. That email specifically identifies that the writer, Mr John Venizelakos, had “been engaged by Paula to act as her representative”. The email clearly disputes the dismissal but goes on to suggest an appropriate settlement.
Prejudice to the employer (including prejudice caused by the delay) - 366(2)(c)
[16] Nothing has been put to the Commission by the Respondent which would allow the Commission to form any view as to potential or real prejudice that may be suffered by the Respondent. In all the circumstances of this matter this criterion is neutral.
The merits of the application - 366(2)(d)
[17] A detailed consideration of the merits of an applicant’s case are rarely examined in detail in an extension of time matter.
[18] In Kyvelos v Champion Socks Pty Limited 2, a Full Bench of the Commission said:
“[14] In considering whether to accept an application which has been lodged outside the time prescribed ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”
[19] In Mappas v TAAU Australia Pty Ltd 3, a Full Bench of the Commission said:
“[44] The appellant claims that his termination was for a prohibited reason. In particular he claims that he had complained to the Department of Employment and Workplace Relations about the wages being paid by the respondent, that he had brought to the attention of the respondent advice from the Department that the respondent was obliged to pay wages that were no less than the Federal Minimum Wage and that he was terminated within hours of a discussion with the owner of the respondent in which he insisted that the respondent comply with the Department’s advice. The respondent contends that the termination of the appellant’s employment had nothing to do with any complaint by the appellant to the Department but was due to a downturn in the business of the respondent caused by a number of factors including damage arising from a cyclone. It is not possible to determine the merits of the substantive application without a full hearing. Certainly, it is not open to this Full Bench to conclude, in the absence of such a hearing, that the merits of the appellant’s substantive application are sufficiently poor that this should weigh materially against exercising the discretion to extend time in favour of the appellant.” (Underlining added)
[20] In Nottage v National Australia Bank Ltd 4, a Full Bench said:
“[23] There is a contest on the merits. In light of the evidentiary material on appeal it is clear the appellant will challenge most of the evidence on which the respondent has indicated it will rely. Findings of fact will be necessary and the seriousness of conduct as found weighed in the balance. We cannot conclude that the application has no merit and it is not necessary that we go any further than that.” (Underlining added)
[21] In Dundas-Taylor v The Cuisine Group P/L 5, a Full Bench said:
“[34]Nonetheless, in our view in this case, there was sufficient material before FWA to preclude a conclusion that “in the absence of ... a [full] hearing ... the merits of [Mr Dundas-Taylor’s] substantive application ... [were] sufficiently poor that ... [they] should weigh materially against exercising the discretion to extend time in favour of [Mr Dundas-Taylor]” or that Mr Dundas-Taylor’s substantive application “has no merit.”
[22] Having regard to the above authorities and having regard to the material filed by the Applicant with her application I cannot conclude that the Applicant’s case has no merit and this criteria should be treated as having a neutral value.
Fairness as between the person and other persons in a like position - 366(2)(e)
[23] There are no other employees of the Respondent in a like position to that of the Applicant and therefore this criterion is not relevant in the present matter.
Conclusion
[24] The very fact that the Applicant sought and obtained legal advice immediately after her dismissal weighs heavily against a grant of an extension of time. Whilst it may be understandable that the Applicant instructed her lawyer to write to the Respondent seeking a settlement in the first instance that cannot become an exceptional circumstance in seeking an extension of time to make an application under s.365. Even if the Applicant was not aware of the time limits in the Act a lawyer should have been.
[25] Having considered each of the relevant criteria in s366(2) of the Act I am not satisfied that there are exceptional circumstances which would permit me to exercise a discretion to grant an extension of time for the making of the application under s.365 of the Act.
[26] The application in this matter is dismissed and an Order will issue separately.
COMMISSIONER
1 [2011] FWAFB 975.
2 2000, Giudice J, Acton SDP and Gay C, Print T2421.
3 [2007] AIRCFB 260.
4 [2008] AIRCFB 1111.
5 [2011] FWAFB 6008.
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