Rebecca Shannon v Urban WA Real Estate Pty Ltd

[2015] FWC 7341

[2015] FWC 7341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Shannon
v
Urban WA Real Estate Pty Ltd
(U2015/12810)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Rebecca Shannon alleged that the termination of her employment by Urban WA Real Estate Pty Ltd on 24 July 2015 was unfair.

[2] Her unfair dismissal application lodged on 14 September 2015 was not made within 21 days of the date of the dismissal.

[3] Urban advised the Fair Work Commission that it did not wish to participate in the hearing of this application to extend time.

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Ms Shannon submitted that her application was delayed due to her chronic morning sickness. It was her evidence that she had been suffering from chronic morning sickness before her employment was terminated. Her employer was aware of this illness and that it caused her on more than one occasion to be hospitalised. Ms Shannon gave evidence that the illness prevented her from making her application within the 21 days provided for in the Fair Work Act 2009 (the Act). Further her ongoing illness prevented her from lodging her application until 14 September 2015 as her illness left her exhausted and incapable of filing her application. I accept that Ms Shannon had a reasonable explanation for the delay in lodging her application. This weighs in favour of a finding that there are exceptional circumstances.

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

[7] Ms Shannon was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[8] Ms Shannon did not dispute her dismissal at the time. This weighs against a finding that there are exceptional circumstances.

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

[9] Urban did not put forward any evidence of any prejudice. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[10] Urban in their Form F3 state Ms Shannon resigned at 8.58am on 24 July 2015. Ms Shannon exhibited a series of text messages exchanged with Ms Robyn Horsman, one of Urban’s owners.

[11] Whilst Ms Horsman was not unsympathetic to Ms Shannon’s position, when Ms Shannon said that she would be off for an indeterminate time Ms Horsman said “Ok so you then resign?” Ms Shannon asked about her accrued leave and was told “[u]sing holiday leave is not an option. We cannot hold the position.” At 8.58am Ms Shannon said “Then I have no option. I’ll contact when I am batter [sic] and keep updated. Hopefully when I am better I can come back casually?”

[12] Ms Shannon said she did not resign her employment. There was no evidence at the hearing to contradict her evidence. On the evidence before me, there is a prima facie case that Ms Shannon did not resign her employment. This weighs in favour of a finding that there are exceptional circumstances.

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

[13] No submissions were made about this criterion.

Conclusion

[14] I am satisfied that there are exceptional circumstances. Ms Shannon has provided a reasonable explanation for the delay. Further, she has a prima facie case that she was dismissed or forced to resign because she was ill. There is no prejudice to the employer and although Ms Shannon was aware of the dismissal when it took effect and she did not take any action to dispute the dismissal, I am prepared to exercise my discretion and extend time for Ms Shannon’s application for unfair dismissal remedy to be made.

DEPUTY PRESIDENT

Appearances:

Ms R Shannon on her own behalf.

No appearance for the Respondent.

Hearing details:

2015.

Via telephone:

October 23.

 1   [2011] FWAFB 975.

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