Rachael deVries v Chabad Institutions of Australia Inc T/A Gurevich Early Learning Centre

[2014] FWC 2097

[2014] FWC 2097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael deVries
v
Chabad Institutions of Australia Inc T/A Gurevich Early Learning Centre
(U2013/5499)

COMMISSIONER GREGORY MELBOURNE, 23 JUNE 2014

Application for relief from unfair dismissal - extension of time - extension granted.

Introduction

[1] Ms Rachel deVries was employed by the Chabad Institutions Preschools T/A Gurevich Early Learning Centre (Chabad) in 2011 and 2012. She worked on a part-time basis, initially as a Jewish Studies Teacher in the four-year-old kinder program. In 2012 she worked in the same program but as an Integration Aid.

[2] On 6 December 2012 Ms deVries received a letter from Chabad containing very serious allegations of inappropriate behaviour with a child at the school. On the following day she and her husband met with Rabbi Yehoshua Smukler and Ms Barbara Belfer from Chabad who provided further details about the allegations. Eight days later, on 14 December, she received a letter indicating her employment had been terminated. Ms deVries denied the allegations and has continued to do so.

[3] On 1 January 2013 the Commission received an unfair dismissal application filed on behalf Ms deVries under s.394 of the Fair Work Act 2009 (Cth). At the time of her dismissal the Actprescribed that the time limit for filing an unfair dismissal claim was 14 days from the date of termination, (the period has been twenty-one days since 1 January 2013 following subsequent amendments to the Act). The application was therefore received four days out of time.

[4] However, Ms deVries’ husband states he tried to file an application on her behalf on 28 December, fourteen days after her termination, and believed he had been successful in doing so. It was only when he subsequently sought confirmation the application had been lodged was he advised it was actually received by the Commission four days later.

[5] This matter has a protracted history. It has been listed, but subsequently adjourned several times due to health issues involving both Ms deVries and her husband, who has acted as her representative at different points in time. There have also been issues to do with non compliance with directions and difficulty contacting the parties at different times. This has seen the matter listed but then adjourned on 19 April, 13 September, 12 September and 29 October 2013. On 1 November 2013 the Commission forwarded a letter to Ms deVries advising the matter would be adjourned for a period of three months, given the health issues impacting on her husband, who at the time was her named representative. On 4 February further correspondence was sent to her husband requesting an update as to when the matter might proceed. The Commission was subsequently advised Mr Joseph Kelly from Kelly Workplace Lawyers was acting on behalf of Ms deVries.

[6] On 4 March 2014 the Commission forwarded a letter to both parties, following discussions about the future conduct of the matter. It indicated in part:

“Thank you both for participating in the recent discussions about the future conduct of this matter.

As I indicated at the time I am concerned about the delays that have occurred in dealing with the matter, and the further requests now from the Applicant’s current representative to file and serve additional materials. It indicated this would primarily involve a brief submission and separate witness statement.

The request is opposed by the Respondent who highlights concerns about further delay, and the possibility of inconsistency arising between the materials already provided by the Applicant.

I understand the position put on behalf of the Respondent, but have decided to allow the Applicant’s representative to file additional material in place of what has already been submitted. I have made this decision in the interests of having submissions and evidence before me that can best assist in determining the matter.” 1

[7] The letter continued to set out a timetable for the parties to file and serve further submissions and evidence and confirmed a hearing date. However, the Commission was subsequently advised by the representatives of both parties that the hearing date could be vacated and the matter decided on the basis of the materials presently before the Commission.

[8] Ms deVries continues to be represented by Mr Joseph Kelly of Kelly Workplace Lawyers. The Respondent is represented by David Maddocks of Perry Maddocks Trollope Lawyers. The Commission grants leave to both parties to appear under s.596(2)(a) of the Act.

[9] The name of the Respondent has also been changed from the name indicated on the original application to Chabad Institutions of Australia Inc T/A Gurevich Early Learning Centre based on the information provided in the form F3 and an order has been issued to this effect. 2

The Issue to be Determined

[10] At the time of Ms deVries’ dismissal s.394(2) of the Act provided that an application for unfair dismissal remedy must be made within fourteen days after the dismissal took effect or within such further period as the Commission allows. Section 394(3) provides that the Commission may allow a further period for an application to be made if it is satisfied there are “exceptional circumstances” for doing so taking into account the various matters set out in subsection.

[11] Therefore, are there “exceptional circumstances” existing in this matter to warrant the Commission exercising its discretion to grant Ms deVries additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[12] Ms deVries’ submissions initially referred to the decision in Nulty v Blue Star Group Pty Ltd 3 (Nulty) as authority for what is required to find that “exceptional circumstances” exist. They refer, in particular, to the following extract from the Full Bench when it stated that 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

[13] Ms deVries submits the Commission must therefore consider whether the events which have transpired are unusual, special or uncommon, and whether they fit this test. She refers specifically in this context to the reason for the delay, the merits of the claim, and the impact of denying the application. The submissions then continued to address the specific matters in s.394(3) that the Commission must have regard to.

(a) the reason for the delay

[14] Ms deVries submits the reason why the application was not filed within the fourteen day limit was due to a computer problem that her husband, who attempted to file the application on her behalf, was unaware of. She states the delay was caused by “a computer or internet error of a technical nature, which she was unaware of” 5 and says “but for the technical error which occurred, the application would have been received in time.”6

[15] The witness statement filed by her husband, Mr Yehuda deVries, states he returned to Australia on 21 December 2012, after having been away since 9 December on a work related trip. On 28 December 2012 he attempted to lodge the unfair dismissal application on behalf of his wife, who was still “emotionally distraught at having lost her employment and having been accused of such serious and career threatening allegations.” 7

[16] He said he attempted to lodge the application using the Commission’s online E-filing service and generated a login and was provided with a password. He said he was asked to provide payment details by means of a credit card and, as prompted, provided those details. He said his computer then appeared to be attempting to progress to the next page with the “‘round ball’ loading icon rotating.” 8 As this appeared to be taking some time he left the computer and attended to other matters. He later noted the icon had stopped rotating and presumed the application had been lodged and that it, together with payment of the lodging fee, would be processed.

[17] He said he subsequently emailed the Commission on 1 January 2013 to confirm the application had been received, as he had not received confirmation of its acceptance. He said he attached the Form F2 he had completed as a means of confirming he had already lodged the application four days previously. On either the following day or the day after he said he called the Commission to confirm the application had been received and was told it had. However, on 17 January he received an email from the Commission confirming receipt of his email of 1 January and indicating the application had been accepted by the Commission on that day (1 January 2013).

[18] His statement concludes:

“I believe that I took all steps necessary to ensure my wife’s unfair dismissal application was filed on 28 December 2012 and therefore ensure it was filed within the 14-day time limit. I believe a computer error beyond my control is responsible for any resultant delay.” 9

[19] Ms deVries also relies on the decision of Lawler VP in Johnson v Joy 10 (Johnson) in support of her application. The applicant in that matter lodged an application four days out of time as they had previously attempted to file the application electronically without success and, as such, posted a copy to the Commission which was received late. As to the relevance of this matter, Ms deVries submits:

“.... The circumstances examined in Johnson v Joy are analogous with the current matter. Specifically, the delay of the Commission receiving the application is 4 days in both instances. Further, in both cases, the reason for this delay is a technical error of the FWC website which prevented filing of the application. As such, in both cases the delay is beyond the understanding of the Applicant. Consequently, the reason for the delay must be analysed pursuant to section 394(3). The facts of this matter are so similar to the facts of Johnson v Joy that the Commission is able to allow for an extension of time on this basis alone.” 11

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

[20] Ms deVries was first informed she had been terminated when she received the letter from Chabad on 14 December 2012. This is not in dispute and she submits this consideration has no particular relevance.

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

[21] Ms deVries said she was provided with some details of the allegations made against her at the meeting on 7 December 2012. However, she was not told which student was alleged to have been involved, or when and where the alleged incident had occurred. She said she denied the allegations in that meeting and has continued to do so. She subsequently sought advice from a solicitor, Mr Alex Lewenberg.

[22] After being informed on 14 December that she had been terminated for serious misconduct Mr Lewenberg forwarded a letter on behalf of Ms deVries to Chabad on 20 December disputing her termination and seeking further details about a range of matters. The letter also indicated she “considered the reason for the termination of her employment to be ‘wrong and baseless’. 12

[23] She says on the following day a response was received in a letter from Chabad’s solicitors indicating they were seeking instructions in response to the letter from Mr Lewenberg. However, she never received a response addressing the issues raised in that letter. She also states, “At all times I disputed the termination of my employment.” 13

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

[24] Ms deVries submits Chabad would not be prejudiced by allowing an extension of time in the circumstances. She acknowledges that a long delay can give rise to a general notion of prejudice against a Respondent, however, at worst the application in the present matter was only received four days outside of the prescribed time limit. She submits there could not be any prejudice towards Chabad in these circumstances and, in particular, “employees of the Respondent at the Meeting are still employed by the Respondent.” 14

(e) the merits of the application

[25] Ms deVries’ submissions refer to the decision in Kyvelos v Champion Socks Pty Ltd 15 in support of the submission that the Commission’s role at this point is not to embark on a detailed consideration of the substantive case because it is not in a position to make findings of fact on contested issues. Its role instead is to weigh the merits and upon examination of the facts it may grant an application for an extension of time in circumstances that present strong merits even where the reason for the delay is insufficient.

[26] Ms deVries submits serious allegations have been made against her which will have serious ramifications, if proven. She also submits her termination was harsh, unjust and unreasonable, on both substantive and procedural grounds. She submits the allegations cannot be sustained on the evidence and Chabad should not have been satisfied on the basis of the material before it that she was involved in the misconduct alleged. There was, accordingly, no valid reason for her termination.

[27] In relation to the lack of evidence Ms deVries submits 16:

a. She “has not been the subject of any police investigation in relation to the Allegation nor has she at any stage been questioned by the police in relation to the Allegation;”

b. The Department of Human Services (DHS) interviewed her and her husband and children and subsequently advised her on 18 March 2013 “that Child Protection Services (CPS) will not continue to be involved with her family.”

[28] She also submits “the investigation and the conclusion of the Respondent that the Applicant’s conduct was misconduct were substantively and procedurally flawed and further contributed to the unfairness of her dismissal. At no stage was weight given to the responses provided by the Applicant at the Meeting.” 17

[29] Ms deVries further notes:

“If the Applicant is denied the opportunity to challenge the termination of her employment, she will be left without any other recourse or means of asserting her innocence in relation to the Allegation or challenging the flawed actions of the Respondent.

Moreover, if the Applicant is denied the opportunity to challenge the Respondent’s actions in regards to her employment, she will be left with few, if any, potential career prospects. It is clear that any allegation that is of the nature of the Allegation against the Applicant, or someone in a similar position, is very serious. This serious nature of the Allegation and the Respondent’s actions, if not contested or found to be erroneous, means that the Applicant will face great difficulty in securing any future work with children. This issue is emphasised by the close-knit nature of the schooling community.” 18

[30] She concludes that if she is denied the opportunity to take issue with her termination she will be left without any recourse to challenge “the flawed actions of the Respondent” and submits this consideration alone should allow for an extension of time. 19

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

[31] Ms deVries submits this consideration can be viewed either in regard to how matters of a similar kind are currently being dealt with, or with regard to how similar matters have been approached historically. Equally, she submits allowing an extension of time would satisfy any question of fairness, and fairness in the circumstances of her case “would be upheld” if someone else were in a similar position. 20

[32] Chabad submits in response that at the time of Ms deVries dismissal an application for unfair dismissal was required to be lodged within fourteen days after the dismissal took effect, and the application in this matter was not lodged within the required period. It notes the earlier claims by Mr deVries that he attempted to lodge the application with the Commission online and that he tried several times and “just assumed it had been processed.” 21

[33] It submits there are numerous ways an application can be lodged if there are any concerns it has been filed unsuccessfully and no record of Mr deVries having obtained a login ID and a password, which are required to attempt an electronic payment, have been provided. Further:

“...the Applicant has provided no documentary evidence to support the claimed of attempts to lodge the application prior to 1 January 2013, such as confirmatory emails, computer screen-shots and/or credit card records. There is no evidence of any attempt by the Applicant or on her behalf of a telephone communication with the Commission to confirm the lodgement of the alleged earlier application.” 22

[34] Chabad also submits Ms deVries was legally represented shortly after her dismissal, as confirmed by the correspondence it received from her solicitor on 20 December 2012, making reference to her termination. It submits this confirms legal advice had been sought prior to the conclusion of the 14 day period after she was dismissed, and she should therefore have been aware of the requirement to lodge within the fourteen day period.

[35] It concludes:

“In all the circumstances, the Respondent objects to the unfair dismissal remedy application, as the Fair Work Commission does not have the jurisdiction to consider the application.

The Respondent submits the discretion under s.394 of the Act to allow a further period for the application to be made, should not arise in circumstances where:

• the Applicant had sought legal advice by 20 December 2012, prior to the expiration of time;

• the Applicant has not claimed ignorance of the time limit, poor English, lack of understanding, intellectual impairment or any medical condition, as contributing to the failure to lodge the application within time;

• the merits of the application are not strong; and

• there is no evidence of any bona fide attempt to lodge the application in time as claimed (such as documentation of a Fair Work Commission eFiling login ID or password and the dates they were obtained, which should exist if such attempts were made), which would constitute an 'exceptional circumstance.'” 23

Consideration

[36] The substantive issues to do with Ms deVries termination from her employment at Chabad involve extremely serious allegations. They have apparently and, not surprisingly, been the source of significant distress and upheaval in her life. This is no doubt exacerbated by the fact they concern a school community and a school her children continue to attend.

[37] I am satisfied Ms deVries’ unfair dismissal application was not filed within the requisite time period, and was lodged instead four days outside of that time. As already indicated in considering an application for an extension of time I must have regard to each of the considerations set out in s.394(3) of the Act. A number of decisions of this Tribunal and its predecessors have considered what is required to find exceptional circumstances exist to justify an extension of time being granted. Ms deVries’ submissions made reference, in particular, to the decision of the Full Bench in Nulty. It was made in the context of a general protections application, however, the principles established by the decision have been held to be of broader application. A relevant extract from the Full Bench decision is contained at [13] to [15] and states:

“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.

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.

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.” 24

[38] As the decision indicates s.394(3) requires consideration by the Commission of each of the matters set out in subsections (a) to (f). “Exceptional circumstances” might also be found to exist because of a single factor or a combination of factors. I now turn to deal with the relevant circumstances, and the submissions of the parties in this matter, by reference to those considerations.

(a) the reason for the delay

[39] The evidence of Mr deVries to do with his attempt to lodge an application on the 28 December has been set out already and is not restated now. I have no reason to doubt he attempted to file an application online, on that day, and believed he had been successful in doing so. However, I am also satisfied he did not successfully lodge an application then, and was mistaken in believing the e-filing process had been completed. I am also satisfied the fault was at his end. Certainly, there is no suggestion or any evidence that some problem with the Commission’s processes was the reason why the application was not filed successfully.

[40] I also note Mr deVries made his attempt to file an application on the last day within the requisite time period. If he had attempted to file the application at an earlier point his unsuccessful attempt may have been discovered earlier, and the problem rectified within the required period. However, I also understand there were other explanations as to why it was not filed earlier. Mr deVries was absent overseas for some of the period. It is also understood Ms deVries’ legal representative was attempting to obtain further details about the reasons for his client’s termination and the rationale behind the decision-making process that led to that decision. It must also have been a very difficult time for Ms deVries and her family, although this factor could be both a cause of delay in acting or motivation for doing so.

[41] Ms deVries relies on the decision in Johnson in support of the reasons for the delay being due to the technical problems encountered by Mr deVries. In that matter Lawler VP found the Applicant had made an attempt one or two days prior to the expiration of the relevant period to submit an online application for an unfair dismissal remedy through the Commission’s website. He also found the Applicant encountered difficulties with the process and despite at least two attempts to file was unable to successfully do so. He concluded:

“In any event, the fact remains that I am satisfied that the applicant made a bona fide attempt to make a real-time application before the expiry of the 14-day period.” 25

[42] VP Lawler continued to state:

“Taking into account the circumstances that I am required to take into account under s.394(3), I am satisfied that there are exceptional circumstances in this case; namely, a bona fide attempt to file an application through the FWA web site within time, which was unsuccessful for reasons beyond the understanding of the applicant.

That situation is exceptional in the sense articulated in the quote relied upon by the Full Court in Mann. I am not satisfied that the circumstances of this case are rendered unexceptional because the applicant might have used another method, namely a telephone application, which could have been effective, possibly within time but certainly before the filing by post.

It seemed to me just and equitable to exercise the discretion to extend time and an order has issued to that effect.” 26

[43] VP Lawler also noted there had been “only been a handful of decided cases on extension of time, under the FW Act.” 27 However, since that time there have been many other matters decided under these provisions, leading to the conclusion that what might once have been considered to be rare, unusual or exceptional is, in fact, something often and regularly encountered.

[44] The facts in the present matter are a little different from those in Johnson, where the Applicant was aware at the time his attempt at filing online and within time had failed. He then sought other means to lodge his application that took him beyond the fourteen day period. In the present matter the evidence of Mr deVries is that he believed he had lodged the application within time; a bona fide attempt had been made, as VP Lawler found in Johnson, that Mr deVries only discovered was unsuccessful several days later.

[45] It is arguable whether ignorance of online filing processes, or the failure of an Applicant’s computer system to properly complete an online filing process is, of itself, an exceptional circumstance. In particular, there would be an increasing awareness that if an attempt to file online is made, and some form of receipt acknowledging successful completion of the process is not received, then it would be prudent to make further enquiries or further attempts to complete the process successfully.

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

[46] The evidence indicates Ms deVries was clearly aware of the dismissal from the time it was first communicated to her in a letter from Chabad, eight days after the alleged event occurred.

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

[47] Ms deVries and her husband attended a meeting on the day after the alleged event with representatives of her former employer. Her evidence indicates she denied the event took place in that meeting and has maintained this position ever since. She subsequently sought legal advice, apparently from a solicitor with criminal law experience, believing the allegations made against her potentially involved issues of this magnitude. Her solicitor subsequently forwarded a letter to her former employer stating her termination was “wrong and baseless”. An unfair dismissal application was then lodged on her behalf and, despite various delays, Ms deVries has since sought to actively pursue that application.

(d) prejudice to the employer

[48] This matter was not directly addressed in the submissions provided by Chabad. There will always be prejudice to an employer if it is required to respond to an unfair dismissal application given the time and effort involved, and the potential distraction from its principal business activities. The allegations involved in this matter also mean any future proceedings are likely to be difficult and emotional for those involved.

[49] Conversely, the application was only lodged a short while out of time and given the communications from Ms deVries’ solicitor in the days after her termination Chabad could have expected an unfair dismissal application was a likely response.

(e) merits of the application

[50] As indicated, this matter involves extremely serious allegations in terms of the reasons for Ms deVries’ termination from her employment after working for Chabad for two years. A number of factors appear relevant in terms of any consideration of the respective merits of the matter.

[51] Firstly, as indicated Ms deVries has strenuously denied throughout the allegations that are the basis of the decision to terminate her employment. Secondly, she is not aware of any police investigation in relation to the allegation and has not been questioned by the police in regard to the matter. Her evidence also indicates that despite involvement from the Department of Human Services, and interviews conducted with her and her family, she was subsequently advised in March 2013 that “Child Protection Services will not continue to be involved with our family.” 28

[52] In addition, her evidence indicates she has not been provided with details about who is alleged to have been involved in the behaviour complained about, or when this took place. Her Solicitor at the time wrote a to Chabad seeking information about:

“(a) what conduct you assert that constitutes serious misconduct?

(b) what evidence is asserted to be found by you as proven to support the allegations and the finding of misconduct?

(c) what matters you say you are satisfied that led you to find the findings as to our clients misconduct?

(d) what part (if any) of our clients explanation that you reject and why?

that you say may justifiy termination of our clients employment.” 29

[53] No response to that letter has ever been provided to Ms deVries or her legal representative.

[54] Ms deVries submissions made reference to the Commission’s role in dealing with this consideration. As indicated, the relevance of the issue of “merit,” when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited 30 when dealing with similar legislative provisions to those now contained in the Fair Work Act. The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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 although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 31

The Full Bench continued:

“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 an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 32

[55] I have not by any means formed a concluded view about the respective merits of the matter and in the absence of detailed evidence and submissions going to merit am not in a position to make conclusive findings about what are clearly contested issues. The decision of the Full Bench in Kyvelos also makes clear it is not necessary to do so at this point.

[56] However, I am satisfied Ms deVries has reason to feel aggrieved by her termination, given her evidence that she has not been provided with details about when and where the alleged behaviour that led to her termination occurred, and who was involved. In addition, it appears no police investigation has ever been initiated, despite the alleged behaviour suggesting such an investigation might be warranted. In addition, her evidence indicates relevant officers from the Department of Human Services have had involvement with her and her family and have decided no further involvement is required.

[57] It could be that the sensitivities involved in this matter have led Chabad to decide not to reveal the details, and instead to simply proceed to terminate Ms deVries’ employment. However, no evidence or indication to this effect exists. Chabad also did not make submissions about the issue of merit other than to submit the “merits of the application are not strong.” 33

[58] Nevertheless, serious allegations have been made and relied on as justification for the decision to terminate Ms deVries’ employment, but she has not been provided with details of when, where and who was involved. It is a most unusual situation for serious allegations to be made but for the person involved to only be given limited information about the detail of those allegations. The absence of this detail suggests Ms deVries has a sufficient case, at least, on the merits. In the absence of anything further I am accordingly satisfied her application has some prospects of success and this consideration is of particular relevance in determining the present matter.

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

[59] This matter is of limited relevance in the present case, although any person in her circumstances could perhaps expect to have their application dealt with appropriately, given the significance of the matters involved.

Conclusion

[60] I am satisfied in all the circumstances that “exceptional circumstances” exist in the present matter to warrant an exercise of the discretion to extend the time in which to make an unfair dismissal application. In coming to this decision it is acknowledged that the circumstances that led to the late lodgement should be a principal concern. In this context I am satisfied the reasons for the delay, and the limited time period involved in the delay, are relevant. However, as indicated I have decided an extension of time should be granted, in particular, given the considerations involved in regard to the “merits of the application.” In these circumstances I consider it is fair and equitable to exercise the discretion to extend the time and an order will issue to that effect.

[61] This matter will be allocated back to the Unfair Dismissal Case Management Team for further listing.

COMMISSIONER

Final written submissions:

Final submissions of the Applicant received on 12 March 2014.

Respondent declined to file further submissions and confirmed they wished to rely upon previously filed submissions (24 September 2013) on 28 March 2014.

 1   Letter from Commissioner Gregory to J Kelly and D Maddocks dated 4 March 2014

 2   PR552320

 3   [2011] FWAFB 975

 4   Ibid at [13]

 5   ‘Submissions Concerning Extension of Time’ filed by the Applicant on 12 March 2014 at para 13

 6   Ibid

 7   Witness Statement of Yehuda deVries dated 11 March 2014 at para 3

 8   Ibid at para 7

 9   Ibid at para 11

 10   [2010] FWA 1394

 11   Submissions of Applicant, see above n. v at para 15

 12   Submissions of Applicant, see above n. v at para 17

 13   Witness Statement of Rachael deVries, see above n. i at para 19

 14   Submissions of Applicant, see above n. v at para 18

 15   Print T2421, 10 November 2000

 16   Submissions of Applicant, see above n. v at para 24

 17   Ibid at para 23-25

 18   Ibid at para 26-27

 19   Ibid at para 26

 20  Submissions of Applicant, see above n. v at para 32

 21   ‘Jurisdictional Objection to Application for Unfair Dismissal Remedy’ of the Respondent dated 24 September 2013 at page 1

 22   Ibid at page 2

 23   Ibid

 24   [2011] FWAFB 975 at [13]-[15]

 25   [2010] FWA 1394 at [14]

 26   Ibid at [29]-[31]

 27   Ibid at [25]

 28   Witness Statement of Rachael deVries, see above n. i at paragraph 24(b) and attachment RDV-05

 29   Ibid at attachment RDV-03

 30   Dec 1294/00 M Print T2421

 31   Ibid at [14]

 32   Ibid

 33   Respondent Submissions, see above n. xxi

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