Robyn Wishart v Noni B T/A Millers

[2019] FWC 8063

[2019] FWC 8063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair Dismissal

Robyn Wishart
v
Noni B T/A Millers

(U2019/9767)

DEPUTY PRESIDENT LAKE BRISBANE, 26 NOVEMBER 2019

Application to deal with an Unfair Dismissal – Extension of time– Circumstances not exceptional – Application dismissed.

Introduction

[1] This matter concerns an application made to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application was made by Ms Robyn Wishart (the Applicant) who alleges her employment with Noni B Pty Ltd T/A Millers (the Respondent) was terminated unfairly.

[2] On 24 July 2019, the Respondent filed a response to Ms Wishart’s unfair dismissal application and raised a jurisdictional objection that the application was filed out of time.

[3] Section 394 of the Act requires that an such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[4] Section 394 of the Act relevantly provides:

“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.”

[emphasis added]

[5] On 17 October 2019, Vice President Catanzariti allocated this matter to my chambers. The Vice President directed that the parties make submissions on the jurisdictional objection raised by the Respondent. The date of the Applicant’s dismissal was alleged to have occurred on 7 August 2019, with the application being filed on 30August 2019, two days out of time.

[6] On 20 November 2019, I scheduled a hearing by telephone in order to deal with the jurisdictional objection. The Respondent filed a Form F53 – Notice that lawyer or paid agent acts for a person. At the hearing I granted permission for the Respondent to be represented by Mr Wes O’Donnell of FCB Lawyers pursuant to the factors under s. 596 of the Act due to complexity arising out of the disputed facts between the parties and in order to deal with matter efficiently and expediently.

[7] Based on the material and submissions before the Commission, I have determined that the date of the Applicant’s dismissal occurred on the 7 August 2019 and therefore the application was lodged outside of the 21 day statutory timeframe. I find that there are no exceptional circumstances that would lead me to exercising my discretion under s. 394(3) of the Act to allow the Applicant an extension of time in making her application. The reasons for my decision are set out as follows.

Background

[8] On 1 July 2018, the Applicant commenced employment with the Respondent following the acquisition of a number of retail businesses by the Respondent including; Millers, Katies, Crossroads, Autograph and Rivers Brands. Throughout her employment, the Applicant held the position of part-time sales assistant with Millers at the Mt Ommaney store up until the date of her dismissal on 7August 2019.

[9] The application was not filed in the Commission until 30 August 2019, with the timeframe of 21 days having ended at midnight on 28 August 2019. As a result, the application was therefore filed 2 days out of time. The Respondent opposes the granting of an extension of time.

The dismissal

[10] The Respondent is a national employer with numerous retail stores and in excess of 3,000 employees. It has an established Human Resources policy, including a Code of Conduct and Discipline Policies.

[11] The Applicant attended a disciplinary meeting (first disciplinary meeting) regarding her failure to notify the Respondent of her intended absence from the workplace on 15 June 2019, in accordance with the established policy. The Applicant’s failure to provide adequate notice resulted in the Respondent’s retail store being unable to open or trade that day.

[12] At the disciplinary meeting the Applicant was unable to provide a reasonable explanation as to why she was unable to notify the Respondent of her absence. The outcome of the first disciplinary meeting resulted in a first and final written warning as well as a direction that the Applicant was to personally notify the store manager prior to her shift commencing if she was unable to work on that day.

[13] On 7 August 2019, a second disciplinary meeting (second disciplinary meeting) was held following an incident on the 15 July 2019. This secondary disciplinary meeting came about as a result of the Applicant similarly not advising the Respondent that she was unable to attend her shift. As a result, the Respondent’s retail store was again unable to open and trade for two hours on that day. The second disciplinary meeting also covered two other matters including a breach of confidentiality and a derogatory remark that were alleged to have been done or made by the Applicant. Each of the matters was discussed during the second disciplinary meeting and the allegations were substantiated to the Respondent’s reasonable satisfaction. The Applicant was terminated on the same day.

Consideration

[14] The Act allows the Commission a further period for an application to be made under section 394(3) of the Act only if it is satisfied that there are ‘exceptional circumstances’ which contributed to the delay in making the application. This establishes a high hurdle for an Applicant.

[15] The meaning of ‘exceptional circumstances’ was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The

Full Bench also stated that 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 can be considered exceptional. 2

[16] In order for the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under section 394(3) of the Act to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking 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.

Reason for the delay – s.394(3)(a)

[17] The Act does not specify which reasons might favour the Commission in granting an extension of time, however, decisions of the Commission have referred to an acceptable or reasonable explanation. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, 3a Full Bench of the Commission noted that the absence of an 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. The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[18] The Applicant provided various reasons for the delay in filing her application.

[19] The Applicant firstly stated that her mobile phone had a cracked screen, which she said resulted in the text on her device becoming distorted. The Applicant submitted that her friend sent her a text message that read “You have 27 days after Termination, to get your docs into Fair Work.” She submitted her cracked screen made the number ‘21’ appear as ‘27’ and amounted to a reason as to why her application was filed out of time. The Applicant submitted as evidence a photograph to the Commission of a cracked phone, which was allegedly the Applicant’s. Under cross-examination, the Applicant revealed that she had destroyed this phone with the cracked screen. Without a screenshot of the ‘21’ appearing as a ‘27’ and without the actual phone being able to verify this, I cannot accept this as a credible reason for the delay. Regardless of this, it is not a very believable reason and I was not persuaded on the Applicant’s testimony alone that this could have been an acceptable reason for the delay.

[20] Further to the above reason, the Applicant submitted that she had previously had taken two (2) weeks stress leaving prior to her dismissal due to bullying and that she required medical assistance and counselling. This, it was alleged by the Applicant, also contributed to her delay. This reason, however, does not particularly assist the Applicant as it does not outline what happened during the 21 days after which the Applicant was dismissed or after those 21 days.

[21] The Applicant further contended that she had a lack of familiarity with technology, did not have access to the internet at home and only used her mobile phone for text messages and calls. The Applicant believed this factor also weighed heavily in the delay in making her application. Under cross-examination at the hearing, it was brought out in evidence that the Applicant’s phone could indeed connect to the internet and that the Applicant’s phone had open some 16 webpages on her phone (based on a screenshot that the Applicant had submitted as part of her evidence). However, the Applicant nonetheless maintained her evidence that she did not know how to use technology. I accept this evidence. Overall, however, the Applicant’s inability to use technology to a high level may be a possible reason for the delay but, in my view, this does not amount to an exceptional circumstance.

[22] It was submitted by the Applicant that the loss of the Applicant’s job also impacted her personally and this stymied her ability to lodge her application in time. The Applicant’s children allegedly were relocated to her former partner’s house as she could no longer afford to look after them. Her treating General Practitioner, in a letter dated 21 October 2019 and following a consultation on 9 September 2019 stated that the Applicant reported to her that she had experienced uncontrolled crying, shaking, vomiting after food, and the inability to focus. The Applicant also had trouble sleeping. In addition, the General Practitioner stated that the Applicant was unable to perform her usual parenting and life tasks, and relied heavily on good friends for emotional and practical support. I appreciate that the Applicant was experiencing difficult personal circumstances during the 21-day period following her dismissal and I sympathise with her in this regard; however, I do not consider these reasons to be exceptional which would warrant an extension of time to allow the Applicant to lodge her application.

[23] Ultimately,the absence of an acceptable or reasonable explanation for the delay in lodging the application weighs heavily against the Applicant’s request for an extension of time.

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

[24] The Applicant understood at the meeting on 7 August 2019 that she was dismissed from her employment. This had followed the first disciplinary meeting where the Applicant was warned about her conduct and the requirement to inform the Respondent ahead of time if she was unable to attend her place of work. In my view, I consider it was clear and apparent to the Applicant that her employment had been terminated effective on 7 August 2019. I find this to be a neutral consideration.

Action taken to dispute the dismissal – s.394(3)(c)

[25] The Applicant did attempt to contest her dismissal. She gave testimony that she wrote to management to challenge her dismissal and also called the Respondent on at least two occasions, but was unable to secure a further meeting to discuss the matter.I accept that the Applicant took steps to contest her dismissal, aside from filing this application. This consideration weighs in favour of allowing an extension of time.

Prejudice to the employer – s.394(3)(d)

[26] I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. I would attribute this factor of little weight in the consideration of whether there are exceptional circumstances in this matter.

Merits of the application – s.394(3)(e)

[27] The Applicant was dismissed following a second disciplinary matter within a month on the same issue she was disciplined on the first time; that is, a failure of the Applicant’s to notify the Respondent of her absence from work. The Applicant had been through a disciplinary process the previous month when she did not notify the Respondent of her absence at work and the shop could not be opened causing a loss of sales for that day. Her termination was a result of her second infraction for the same type of matter. It appears, on the submissions of the Respondent, that the organisation conducted the investigation process and the meetings with the Applicant in an appropriate manner.

[28] The lack of notifying an employer of non-attendance for work is a basic requirement and given the use of text and mobile phones, there would be very limited circumstances that would allow for an employee being unable to provide the advice of non-attendance in advance.

[29] An application to extend time, however, is essentially an interlocutory matter that does not allow for the merits to be fully tested. Accordingly, I am prepared to consider the merits of the application as a whole to be a neutral factor in the present case. I am, however, minded to note that I do not consider that the Applicant has a very strong case in these particular circumstances if the Commission was to allow her an extension of time to lodge her application. On at least two occasions, it would seem on the limited evidence before me, the Applicant dropped the ball. On the first of these occasions, the Applicant was warned about this poor behaviour and, only a month later, the Applicant repeated that same poor behaviour. This would be a difficult proposition for the Applicant to overcome if she was indeed permitted to go to arbitration on this matter, but there may be evidence that I am not aware of that could persuade another member of the Commission otherwise.

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

[30] I am not aware of any circumstances that are relevant for the purposes of examining the question of fairness as between the Applicant and other persons who might be considered to be in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[31] The time limit that applies to the exercise of a person’s right to bring an application under s. 394(3) of the Act reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[32] Having regard to all of the matters that I am required to take into account under s. 394(3) of the Act, I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from the Applicant having taken steps to contest the dismissal, none of the factors in s. 394(3) of the Act weigh in favour of granting an extension. In my view, the circumstances in this case are not exceptional, either individually or when considered together.

[33] I decline to grant an extension of time under s. 394(3) of the Act. Accordingly, Ms Wishart’s application under s. 394 of the Act is dismissed. I so Order.

DEPUTY PRESIDENT

Hearing

Jurisdictional hearing by telephone on 20 November 2019.

Appearances

The Applicant: Ms Robyn Wishart (self-represented).

The Respondent: Mr W. O’Donnell, solicitor of FCB Lawyers.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd (Nulty) [2011] FWAFB 975.

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [38].