Robyn Remfrey v Spotless Group Limited

[2014] FWC 3637

[2014] FWC 3637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Robyn Remfrey
v
Spotless Group Limited
(U2014/6444)

COMMISSIONER SPENCER BRISBANE, 25 AUGUST 2014

Unfair dismissal - s.394 - application filed out of time - extension of time.

Introduction

[1] This determination relates to an application made by Ms Robyn Remfrey (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment from Spotless Group Limited (the Respondent) was harsh, unjust and/or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed with the Fair Work Commission (FWC) within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties. Both parties relied upon their written submissions.

[4] The matter was listed for a jurisdictional conference on 3 July 2014. Having considered the material filed by the parties and the submissions made during the conference, the Commission is in a position to make a determination on the jurisdictional objection.

[5] Not all of the evidence and submissions are referred to in this decision; however, all have been considered in making the determination.

Background

[6] The Applicant commenced employment on 27 January 2014 as an Industrial Cleaning Supervisor.

[7] The Applicant was subject to a performance review on 6 March 2013, following a complaint made against her by a co-worker. The Applicant disputes the allegations made against her and states they were unclear. This decision only deals with the jurisdictional matter under consideration.

[8] On 19 March 2013, the Respondent contacted the Applicant by telephone and terminated her employment, citing the conduct issues raised at the performance review.

[9] The application made pursuant to s.394 of the Act was filed on 11 April 2014. By way of the Form F2 application, the Applicant stated that the date she was notified of her dismissal was 20 March 2014. However, the Applicant further stated in her originating application that the “date dismissal took effect” was 19 March 2014. The Applicant stated at question 1.2 of her application and in her submissions that she was notified on 20 March 2014, however, at question 3 she confirmed she was notified by telephone call on 19 March 2014 that her employment was terminated.

[10] Pursuant to s.394(2)(a) of the Act, if the dismissal occurred on 19 March 2014, the application must have been filed by Wednesday 9 April 2014 or by 10 April if the dismissal occurred on 20 March 2014. The Application was filed on 11 April 2014, 1 or 2 days out of time.

Relevant Provisions of the Legislation

[11] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[12] The relevant consideration in relation to the jurisdictional objection is s.394(3).

Summary of the Respondent’s Submissions and Evidence

[13] The Respondent submitted that the Applicant’s termination occurred on 19 March 2014 when the Applicant was advised of her termination and the reasons for her termination, in a phone call from Murray Henshall, Area Manager of the Respondent. The Respondent provided a statutory declaration of Murray Henshall to this effect.

[14] The Respondent submitted that the Applicant was sent a letter dated 24 March 2014 which stated that last day of employment would be recorded as 19 March 2014. The Respondent attached this letter to their submissions.

[15] The Respondent submitted that the Applicant understood she was dismissed as evidenced by her Facebook posts on 19 March 2014. Printouts of the posts were attached to the submissions.

[16] The Respondent submitted that a document is lodged when the Fair Work Commission seal is attached. The Respondent stated that the Applicant had not adequately explained any reason for the delay in lodging her application or advanced any ‘exceptional circumstances’ that prevented her from lodging her application within the required 21 day timeframe.

Summary of the Applicant’s Submissions and Evidence

[17] The Applicant submitted that she was sick on 17, 18 and 19 March 2014.

[18] The Applicant further submitted that the termination took effect on 20 March 2014 and attached a copy of the Applicant’s personal diary as evidence of the date of the dismissal. This evidence indicated that on 20 March 2014, that the Applicant “got a phone call from murry [sic] stating I have been terminated.”

[19] However, in her Form 2 Application at Question 3.2 the Applicant had earlier indicated this phone call was received on 19 March 2014.

[20] The Applicant relies upon section 36(1) item 6 of the Acts Interpretation Act 1901 (Cth) which states:

“Calculating time

(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

6: is expressed to begin after a specified day - does not include that day.

[21] The Applicant submitted that the 21 day time period cannot have commenced counting until the day after the day the dismissal took effect.

[22] The Applicant argued that her Application was lodged at 10:47 am on Thursday 10 April 2014 by express post.

[23] The Applicant submitted that the date the application is posted to the Commission is the date that the application is lodged. The Applicant stated that the rule 13(2)(b) states that “lodgement” of a documents occurs by “sending” the document to the Fair Work Commission. The relevant rule of the Fair Work Rules 2013 is as follows:

13 General requirements for lodging documents

(1) A document lodged with the Commission must:

(a) either:

(i) be on white A4 size paper; or

(ii) if the document is being lodged by email or using the Commission’s electronic lodgment facilities—have an A4 page layout; and

(b) be typewritten, clearly written or clearly reproduced.

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.

Note: The addresses of the Commission’s offices are available at The Applicant submitted that as the application was sent to the FWC by post, on the 20th day after 20 March 2014, therefore the application was made within the required 21 day period.

[25] It was further submitted that, in the alternative, if the termination is found to have taken effect on 19 March 2014, instead of 20 March 2014, the application was “lodged” with the Fair Work Commission on the 21st day of the 21 day period.

Consideration

[26] The date of termination is disputed between the parties. The Respondent argued the termination took effect on 19 March 2014 and the Applicant argued that it took effect on 20 March 2014. The Applicant submitted that the application was lodged on 10 April 2014. The Respondent submitted that the application was lodged on 11 April 2014 when it was received by the Commission.

[27] Pursuant to s.394(2)(a) the application must have been made within 21 days after the date the dismissal took effect, in this case 9 or 10 April (depending on date of termination being 19 or 20 March).

[28] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 1 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 4

[29] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 5

[30] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. Each of those criteria are considered.

s.394(3)(a) - reason for the delay

[31] The Applicant argued that there was no reasoning required as there was no delay.

[32] It was submitted that the application was posted to the Commission within the required time frame. However, the application was posted on 10 April 2014. The 21st day after 19 March 2014 is 9 April 2014. The 21st day after 20 March 2014 is 10 April 2014. The file records the application being lodged on 11 April 2014.

[33] I am not satisfied that the time of filing the application may be taken as the time the application was posted. The Rules refer to the means by which an application must be lodged, not the time at which an application is taken to be lodged. The Commission’s file states that the application was lodged at 11 April 2014 at 10:00am. The Applicant’s Form F2 is stamped by Commission as received on 11 April 2014.

[34] The application was made out of time, regardless of which date of the Applicant’s termination is argued.

[35] I am satisfied that the Applicant was terminated on 19 March 2014. The conflicting material of the Applicant, the submissions of the Respondent and the Applicant’s Facebook posts submitted by the Respondent indicate that the Applicant was dismissed, and understood her employment was terminated, on 19 March 2014. The application was therefore filed two days out of time.

[36] The Applicant did not provide any reasons for not posting the application until 10 April 2014. The Applicant did not provide any reasons why she could not have made an application by email. The Applicant included an email address on her application. The lack of reasons for the delay weighs against the granting of an extension of time.

[37] Further, the circumstances of this case can be distinguished from those in Johnson v Joy Manufacturing Co Pty Ltd 6where the Applicant made multiple attempts to file an application electronically within the 14 day time frame (as it was then), before then posting it. The Applicant in this case has not provided evidence indicating that she made any other attempts to file the application with the Commission within the 21 days.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[38] I am satisfied that the Applicant became aware of the dismissal on 19 March 2014, the day the dismissal took effect. The Facebook posts and material in the application support this.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[39] The Applicant submitted that she attempted to seek legal advice in her short 21 day period, however, there is no further detail provided as to any action taken by the Applicant to dispute the dismissal, other than the filing of the application pursuant to s.394 of the Act.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[40] This consideration (as to prejudice associated with the delay) may include prejudice which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness. 7

[41] The delay is limited. I am not satisfied on the material provided that any substantial prejudice would be suffered by the Respondent if the matter was to proceed.

s.394(3)(e) - the merits of the application

[42] Insufficient material has been filed by the Applicant to form a view about the merits of the application. The Applicant submitted that she was unfairly dismissed and was provided insufficient reasons as to why she was dismissed. The Respondent submitted that the Applicant had been dismissed for serious misconduct. Given the disparity between the parties, no weight has been attributed to this criterion.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[43] This element is not relevant as there was no reference to any other persons in a similar position.

Conclusion

[44] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Commission of their case.

[45] The dispute between the parties relates to the date the termination took effect and the date on which an application is lodged with the Commission.

[46] In relation to the matters in dispute I find that the Applicant’s employment was terminated, and the date she was made aware of the dismissal was 19 March 2014. I find that the date an application is lodged is the date the application is received by the Commission. The application was received and stamped by the Commission on 11 April 2014, two days out of time.

[47] On the material currently before the Commission I find that the Applicant has not demonstrated that there are exceptional circumstances sufficient to exercise the discretion to extend time. Apart from a reference to posting the application and the date it was sent was outside the 21 days timeframe no other reasons were provided to explain what conduct the Applicant was engaged in to pursue the application during the 21 days. The application is therefore refused an extension of time. The Applicant has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed. I Order accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.394(3).

 2  Wheelan C, [2009] FWA 1638, [30] and [31].

 3   Lawler VP, [2010] FWA 1394.

 4   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 6   [2010] FWA 1394.

 7   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others[2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd[2012] FWA 2721

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