Rebecca Hannah Perrau v Milin Builders Pty Ltd

[2021] FWC 214

[2021] FWC 214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Hannah Perrau
v
Milin Builders Pty Ltd
(U2020/15667)

DEPUTY PRESIDENT DEAN SYDNEY, 18 JANUARY 2021

Application for an unfair dismissal remedy – extension of time – extension not granted.

[1] This decision concerns an application by Ms Rebecca Hannah Perrau (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant was employed by Milin Builders Pty Ltd (the Respondent) as a part time administrative assistant. She was advised by letter dated 12 October 2020 her position was redundant, and her dismissal took effect on 23 October 2020. Her unfair dismissal application was lodged on 7 December 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 November 2020. The application was therefore filed 24 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The matter was listed for hearing by telephone on 15 January 2021. The Applicant appeared on her own behalf and Mr Milin and Ms Seaborn appeared for the Respondent.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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. 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.2

[6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

[9] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[10] The Applicant put forward a number of matters as explanation for the delay in lodging the application.

[11] First, she said it was stressful to lose her job. Second, she was required to undergo some medical procedures which involved ‘preparation’ for one week before the procedure, and one week of rest after the procedure. She also said she had attempted to use the Commission’s online application form on a number of occasions in the two weeks prior to making the application but “it did not work”.

[12] The Respondent submitted that the Applicant has not provided an adequate explanation for the delay. There was no evidence that the Applicant’s medical procedures caused incapacity to the extent for any or all of the period of the delay. The Applicant had been able to seek legal advice and had applied for other positions, both of which the Applicant confirmed during the course of the hearing. She was also able to make inquiries with the Respondent about her final pay.

[13] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay.

[14] It is not uncommon for employees to experience stress when their employment is terminated. This does not generally provide an acceptable explanation for making an unfair dismissal application outside the 21 day statutory timeframe.

[15] The Applicant did not provide any medical evidence demonstrating that she was significantly impacted in her ability to lodge her application. In any event, she was able to engage in discussion and correspondence with the Respondent about her final payment, apply for alternative positions and seek legal advice, which does not support a finding that she was medically unable to make her application within time.

[16] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[17] As noted above the Applicant was aware on 12 October 2020 that her employment with the Respondent would end (and did end) on 23 October 2020. I am therefore satisfied that the Applicant had the full 21 day period to lodge her unfair dismissal application. I consider this factor to weigh against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[18] The Applicant did not take any action to dispute her dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[19] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[20] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.

[21] Briefly, the Applicant submitted that she was made redundant because she requested a pay increase and she sought flexibility in terms of her hours of work and the location she performed her work.

[22] On the other hand, the Respondent submitted that her dismissal was a case of genuine redundancy, and that no employees have been employed since her dismissal other than two construction roles.

[23] Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration. 

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

[24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[25] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[26] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

R Perrau, on her own behalf.
D Milin for Milin Builders Pty Ltd.

Hearing details:

2021.
Sydney (By telephone):
January 15.

Printed by authority of the Commonwealth Government Printer

<PR726218>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].