Phillipa Smith v Cue Design Pty Ltd T/A Cue Clothing Co
[2015] FWC 7020
•22 OCTOBER 2015
| [2015] FWC 7020 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillipa Smith
v
Cue Design Pty Ltd T/A Cue Clothing Co.
(U2015/10503)
COMMISSIONER JOHNS | SYDNEY, 22 OCTOBER 2015 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Phillipa Smith (applicant) a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 9 September 2015, that being 37 days after her employment was terminated by Cue Clothing Co. T/A Cue Design Pty Ltd (respondent) on 3 August 2015. That is to say, the application for an unfair dismissal remedy was 16 days out of time.
The jurisdictional objection
[3] The respondent did not indicate its objection to the Commission exercising its jurisdiction to deal with the application because it was lodged later than the 21 days after the dismissal took effect. The Commission did not receive an Employers Response Form (F3).
[4] On 14 September 2015 the Commission wrote to the applicant, inviting her to provide written reasons for her delay in lodgement and advising that, unless the Commission was informed otherwise, the matter would be dealt with on the papers.
[5] On 28 September 2015 the applicant sent an email to the Commission providing reasons for her delay in lodgement. In short, the applicant says that, although the termination took effect on 3 August 2015:
a) she had originally filed a General Protections application within the statutory 21 day time period, but formed the view that an application for remedy from unfair dismissal was a more appropriate application;
b) she was not represented and did not seek legal representation for financial reasons; and
c) she was unfamiliar with the Fair Work Act and did not understand the processes of the Commission.
[6] The respondent did not file any material in response to this application.
Legislative scheme
[7] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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.
[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. 4
Background
[9] The applicant commenced working for the respondent on 11 August 2010.
[10] The applicant was notified of her dismissal and it took effect on 3 August 2015.
[11] On 20 August 2015 (i.e. within 21 days of the date of the termination of her employment) the applicant filed an application under the General Protections provisions of the FW Act.
[12] On 3 September 2015 the applicant made enquiries of the registry about changing her application from a General Protections claim to an unfair dismissal claim. The applicant was advised that unfair dismissal claim made at that time would be out of time.
[13] The General Protections claim was listed for a conciliation on 9 September 2015.
[14] On 9 September 2015 the applicant made the present application for an unfair dismissal remedy (i.e. 6 days after she first made enquiries of the registry about the making of an unfair dismissal application).
[15] On 10 September 2015 the applicant filed a Notice of Discontinuance in respect of her General Protections claim.
Consideration
Paragraph 394(3)(a) - The reason for the delay
[16] It is undisputable that there were 37 days between when the termination of the applicant’s employment took effect and when an application for remedy from unfair dismissal was filed with the Commission. Therefore, the application for an unfair dismissal remedy was 16 days out of time.
[17] The applicant stated that the reason for her delay in filing was primarily owing to her erroneous lodgement of a General Protections application. The applicant advised that after becoming aware of her error in filing the General Protections application, she emailed the Commission on 3 September 2015. The applicant took a further 6 days to file her remedy from unfair dismissal application which was lodged on 9 September 2015. The applicant provided no explanation as to the reason for her delay in filing her remedy for relief from unfair dismissal between 3 September and 9 September 2015.
[18] In Thiess Services Pty Ltd v Stephens 5 the Full Bench held that,
An applicant needs to provide a credible reason for the whole of the period that the application was delayed. [And a member of the Commission is] required to consider the explanation of the total delay not only part of it. 6
[19] The Commission, as presently constituted, is not satisfied that the applicant’s reason for her delay in filing her application constitutes an exceptional circumstance within the meaning of the FW Act. The applicant could have filed her application for remedy from unfair dismissal immediately upon discovering her perceived error. The delay between 3 September 2015 and 9 September 2015 is unexplained by the applicant.
[20] To the extent that the applicant says she was unfamiliar with the FW Act, did not understand its processes and was not legally represented, her explanation for the delay is not out of the ordinary, or unusual or special. Rather, the circumstances described by the applicant are regularly or routinely encountered.
[21] The reasons for delay therefore, weigh against granting the applicant a further period for the filing of her unfair dismissal application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[22] It is uncontested that the applicant first became aware of the dismissal on 3 August 2015.
[23] This factor weighs against granting the applicant a further period for the filing of her unfair dismissal application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[24] The applicant lodged a General Protections application on 20 August 2015, within the statutory 21 day time limit imposed upon General Protections applications.
[25] This action taken by the applicant weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[26] There was no response received from the respondent in relation to this application. The applicant submitted that the respondent would not suffer any prejudice as a result of the delay.
[27] This factor is a neutral factor in the consideration of whether to grant the applicant and extension of time for filing.
Paragraph 394(3)(e) - The merits of the application
[28] In the matter of Kornicki v Telstra-Network Technology Group 7the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 8
[29] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[30] The substantive factual contest between the applicant and the respondent is whether the alleged conduct engaged in by the applicant amounted to serious misconduct. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[31] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing, the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[32] The letter of termination accompanying the applicant’s application disclosed that the reasons for her dismissal pertained to alleged multiple breaches of staff policies relating to irregular staff purchases. The letter of termination asserted that the applicant had sustained a personal financial gain at the expense of the respondent.
[33] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[34] If the applicant can establish to the satisfaction of the Commission that the alleged conduct does not amount to serious misconduct, then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.
[35] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[36] No submissions were made about other persons in a similar position to that of the applicant.
[37] This is a neutral factor in deciding whether to grant the applicant a further period for making her application.
Conclusion
[38] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect will be issued with this decision.
COMMISSIONER
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 [2011] 203 IR 1
4 Above note at [13].
5 [2014] FWCFB 2426.
6 Ibid para [37].
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid.
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