Rachael Dwyer v Team Global Express Pty Ltd

[2024] FWC 1179

[2024] FWC 1179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rachael Dwyer
v

Team Global Express Pty Ltd

(C2024/1285)

COMMISSIONER SCHNEIDER PERTH, 7 MAY 2024

Application to deal with contraventions involving dismissal

1. Rachael Dwyer (the Applicant) made an application to the Fair Work Commission (the Commission) under section365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Team Global Express Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

1. The Respondent has objected to the application on the ground that the application is out of time.

1. Before dealing with the dispute, I must be satisfied that the application was not made out of time.

Background

1. The matter was initially allocated to Deputy President Roberts. The matter was listed for Hearing to determine the out of time issue, on 11 April 2024, and Directions for the parties to file materials were issued.

1. On 2 April 2024, the Applicant emailed the Deputy President’s Chambers and sought an adjournment of the Hearing until after 25 April 2024. The Applicant also confirmed that she was relying on the materials previously filed with the Commission regarding the out of time issue.

1. On 5 April 2024, the Applicant’s adjournment request was granted by Deputy President Roberts. The Directions were amended for the Respondent to file materials and the parties were notified that the matter would be reallocated, due to the Deputy President’s upcoming period of leave. The matter was then reallocated to my Chambers.

1. On 15 April 2024, consistent with the directions issued by the Deputy President, the Respondent filed their material with the Commission.

1. On 17 April 2024, a Notice of Listing was issued to the parties requiring their attendance at a Hearing to determine the out of time issue, on 29 April 2024.

1. The Applicant failed to attend the Hearing as directed on 29 April 2024. The associate attempted to contact the Applicant on the morning of the Hearing to facilitate their attendance. Unfortunately, the Applicant could not be contacted and did not attend the Hearing. 

1. As a result of the Applicant’s failure to attend, I confirmed that the out of time issue would be determined on the papers and the decision was reserved upon adjournment of the unsuccessful Hearing. 

Dismissal date

1. Section 366(1) of the Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

1. As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

1. The parties do not dispute that the Applicant’s dismissal took effect on 6 February 2024.

1. It is a matter of record that the application was made on 28 February 2024.

1. The final day of the 21-day period was therefore 27 February 2024 and ended at midnight on that day.

1. The application was made on 28 February 2024. The application was made one (1) day late.

1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Extension of time

1. Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.

1. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]

1. Exceptional circumstances may 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 can be considered exceptional.[5]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]

1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]

1. I set out my consideration of each matter below.

Consideration of Criteria

What are reasons for the delay?

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 February 2024. The delay is the period commencing immediately after that time until 28 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]

1. The Applicant put forth the following as contributing to the delay:

·   The Applicant submits they made a mistake and believed that the final day to lodge the application within in the 21-day requirement was 28 February 2024.

·   The Applicant submits that she felt overwhelmed by making the application, noting that the Respondent is a large business with significant resources at its disposal to defend such an application.

·   The Applicant submits that she was stressed and confused during the period to file her application with the Commission.

1. In relation to the reason for the delay, the Respondent notes that the reasons for delay primarily relate to stress, confusion, trying to avoid stress, feeling overwhelmed and a mix up of days.

1. The Respondent submits there is no probative evidence provided by the Applicant regarding the impact of the alleged stress, confusion, and feelings of being overwhelmed or how this may have impacted the Applicant’s capacity to lodge the application within the prescribed time.

1. The Respondent asserts that this lack of evidence should weigh against a finding of exceptional circumstances.

1. The Respondent submits that, even if the Applicant had provided evidence in support of their claims, as the Commission has found previously, the reasons put forth by the Applicant do not automatically support a finding of exceptional circumstances.

1. In relation to the Applicant’s error in filing one day out of time, the Respondent submits that the mere ignorance of the statutory time limit in section 366(1)(a) of the Act is not considered an exceptional circumstance.

1. The Respondent notes that, while it is common for dismissed employees to be unaware of the time limits imposed on making an application to the Commission, the Act has stipulated such condition and the discretion to extend time for making such applications outside of the prescribed time limit is dependent on the existence of exceptional circumstances.

1. The Respondent submits that the reasons provided by the Applicant for the late filing of her application are irreconcilable, not credible, or acceptable reasons for the delay in lodging the Application. 

1. The Respondent notes that the Applicant needs to provide the Commission with a credible explanation for the entire period of the delay but, in the Respondent’s submission, she has not done so.

1. The Applicant has not provided any meaningful evidence in support of her submissions. The Applicant did not file any medical evidence which supports the position that she was so incapacitated by the issues she faced in the lodgment period that it hindered her ability to file.

1. Although it is understandable that stress could cause difficulty in preparing an application, I am not satisfied that these reasons for delay weigh strongly in favor of a finding of exceptional circumstances and must be assessed in balance with the following criteria.

What action was taken by the Applicant to dispute the dismissal?

1. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 28 February 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

What are the merits of the application?

1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.

1. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[10] and the same applies to section 394(3)(e) of the Act.

1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. 

1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.

1. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Consideration

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

1. Briefly, to reiterate, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may 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 can be considered exceptional.[12]

1. Having considered the submissions and evidence of the parties, I am not satisfied any of the findings under the criteria, either alone or in combination, support a finding of exceptional circumstances to warrant an extension of time.

1. Despite the lack of evidence provided to support her submissions, I accept that the Applicant likely felt aggrieved by her termination and the circumstances had a negative impact on her mental wellbeing. However, such dissatisfaction and the resulting stress and unhappiness that follows a termination is common and not necessarily indicative of exceptional circumstances.

1. In the circumstances of this matter, and on the materials before me, I am not satisfied the anguish suffered by the Applicant rises to a level which supports a finding of exceptional circumstances, even considered alongside the other criteria. 

1. I accept that the Applicant may have been confused about the time period and accidentally filed one day out time. The Commission has found previously that ignorance of the filing period or accidentally filing out of time are not exceptional circumstances.

1. In the absence of other supporting evidence and submissions, I see no reason to depart from a conclusion that the Applicant’s confusion does not support a finding of exceptional circumstances.

1. In assessment of all the criteria, and upon review of the materials before me, I am not satisfied that there is anything in the current matter that rises to a level which would warrant a finding of exceptional circumstances.

1. The circumstances in the matter before me are not out of the ordinary course, unusual, special, or uncommon.

Conclusion

1. Having regard to all of the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances.

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time.

1. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[13]

COMMISSIONER

[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Ibid; [2015] FWCFB 1877.

[3] [2018] FWCFB 901, [39].

[4] [2011] FWAFB 975, at [13].

[5] Ibid.

[6] [2018] FWCFB 901, [39].

[7] Ibid, [40].

[8] Ibid, [17].

[9] [2015] FWCFB 287, [12].

[10] [2011] FWAFB 975, [36].

[11] [2011] FWAFB 975, [13].

[12] Ibid.

[13] [PR774583].

Printed by authority of the Commonwealth Government Printer

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