Ria Jain v Finance Elite Pty Ltd

[2022] FWC 272

[2022] FWC 272

FAIR WORK COMMISSION

Decision

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ria Jain

v

Finance Elite Pty Ltd

(C2021/7788)

deputy president lake BRISBANE, 10 FEBRUARY 2022

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

1. Ria Jain (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of her employment by Finance Elite Pty Ltd (the Respondent).

1. The Applicant’s employment with the Respondent was terminated on 18 October 2021, effective 22 October 2021. The Applicant lodged the present application on 15 November 2021. It was conceded that was 22 days after the date of dismissal, being one day outside the statutory time limit prescribed by s.366(1) of the Act.  It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.

1. The Respondent opposes the granting of an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension. A hearing was held before me via Microsoft Teams on 2 February 2022.

Should a further period be granted?

1. Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account:

(a)the reason for the delay; and

(b)any action taken by the person 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 person and other persons in a like position.

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

“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.” [2]

1. The Applicant submits that she should be granted an extension of time because exceptional circumstances exist in her case. Namely that:  

(a)she could have filed it within the prescribed timeframe but was confused about whether the limitation referred to 21 business days or ordinary days;

(b)she has been struggling to sleep and think properly since her dismissal so she sought the assistance of her general practitioner who has helped her with medication and support;

(c)she otherwise lacked support. She did not want to disturb her parents who think she is happy and pursuing a career in a field that she always wanted to work in;

(d)she was having second thoughts about proceeding with this claim given that she is a student on a visa. Further, she was concerned that given the person who troubled her is a citizen, in making an application she might risk her chance of one day becoming an Australian citizen. That said, after speaking to a few advisers and experts who supported her, she decided to proceed with the application;

(e)she has lost her sense of identity and confidence as she is unable to cope up with this and has not been able to find another job; and

(f)he challenged her termination in a strongly worded email dated 20 October 2021 in which she asked the Respondent to reconsider her termination and specifically challenged the reasons given.

1. The Respondent submits that the Applicant should not be granted an extension because no exceptional circumstances have been demonstrated. Further, the Respondent asserts that she had only worked there for a short time and had been plagued by performance issues and received notice of same. Accordingly, the Respondent asserts that no extension should be granted.

Consideration

1. I turn now to each of the factors set out in s.366(2) of the Act.

Reason for delay

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. While I accept the Applicant had some difficulties navigating the application process, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.  Had she been confused about the prescribed time limit she could have called the Commission’s helpline to be sure and thus been able to file within the prescribed period.

Action taken to dispute the dismissal

1. The Applicant took steps to dispute the dismissal insofar as she sent an email on 20 October 2021 refuting the basis for her termination. This factor weighs in favour of an extension of time.

Prejudice to the employer  

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.

Merits of the application

1. In Kornicki v Telstra-Network Technology Group, the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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]

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the person and others in a like position

1. Neither party made submissions nor gave evidence in respect of this factor, so I consider it to be neutral.

Conclusion

1. The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[9] I have had regard to all the matters that I am required to take into account under s.366(2) of the Act. On balance, while I am sympathetic to the plight of the Applicant, I am not satisfied that her circumstances meet the high bar set by the Act. In short, I find that exceptional circumstances do not exist in this matter.

1. Accordingly, I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

<PR738237>

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[8] Print P3168, 22 July 1997.

[9] Lockyear v Cox [2021] FWCFB 875 [57].

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