Rose Margi v Marble Renewal Australia Pty Limited

[2019] FWC 1149

[2019] FWC 1149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rose Margi
v
Marble Renewal Australia Pty Limited
(U2018/12343)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 1 MARCH 2019

Application for an unfair dismissal remedy – application filed three days late – application for extension of time – no exceptional circumstances – application dismissed.

[1] Rose Margi (the applicant) has filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to her dismissal by Marble Renewal Australia Pty Ltd (the respondent).

[2] Section 394(2)(a) of the FW Act provides that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’. The 21-day period prescribed in s.394(2)(a) does not include the day on which the dismissal took effect. The date of the applicant’s dismissal was 5 November 2018; therefore, the 21-day period expired on 26 November 2018. The application was lodged on 29 November 2018, three days outside of the prescribed time.

[3] Section 394(3) of the FW Act sets out the circumstances in which the Commission may grant an extension of time:

‘The FWC may allow a further period 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.’

[4] The ‘exceptional circumstances’ test establishes a ‘high hurdle’ for an applicant seeking an extension. 1  A decision whether to extend time under s.366(2) involves the exercise of discretion.2

[5] The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd 3(Nulty):

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance…’

[6] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination, the circumstances may be such as reasonably to be regarded as exceptional. 4 

[7] I turn now to consider the factors referred to in s.394(3) of the FW Act.

Section 394(3)(a): The reason for the delay

[8] In her written material, the applicant sought to explain why she filed her unfair dismissal application after the 21-day period had expired:

‘Yes, I did lodge the matter after 21 days but I was in no mind of thinking straight as I was and still am under depression and stress due to no job and a mortgage to pay and that Greg wouldn’t pay and annual leave and I have to constantly email him to pay my leave. It took him around 3.5 weeks. And when he did, he didn’t pay the full amount owed to me. So I called FWO and explained the matter. The lady I spoke to at FWO, asked if I had lodged my matter to FWC and I said No, I have been trying to sort out my A/L matter and I was aware or in the right mind to think straight due to the cause of stress and depression Greg has put me through.’

[9] When asked during the hearing to explain the reason for her delay in filing the application the applicant said she was trying, first of all, to collect money that was owed to her by the respondent. 5 She said:

‘Being under a lot of stress and worried and being redundant and trying to chase and get that money, and depressed and everything that’s happened, I was trying to fight and trying to get that first, that I wasn’t thinking also straight to apply for an unfair dismissal.’ 6

[10] The applicant did not see a doctor. 7

[11] When asked when she turned her mind to lodging an unfair dismissal application the applicant said it was while she was on the phone to an officer of the Fair Work Ombudsman (FWO) about payment of untaken annual leave. 8 She lodged her unfair dismissal application straight after getting off the phone with the FWO.9

[12] I am satisfied, based on the explanation provided by the applicant, that:

•  in the period after her dismissal, the applicant was focussed on obtaining money that she believed the respondent owed her;

•  this involved regular communications with the respondent, and discussions with the Fair Work Ombudsman (FWO);

•  applicant made her unfair dismissal application the same day she spoke to the FWO official, on 29 November 2018 (being three days ‘out of time’);

•  the applicant did not turn her mind to pursuing an unfair dismissal application until the discussion with the FWO;

•  the applicant was not so physically or mentally unwell that she would have been unable to lodge an unfair dismissal application within time, if she had thought to do so.

[13] I note that the respondent maintains that the applicant’s correct entitlements were paid shortly after her dismissal.

Section 394(3)(b): When the applicant first became aware of the dismissal

[14] It is uncontested that the applicant became aware of her dismissal the same day it took effect.

Section 394(3)(c): Any action taken by the applicant to dispute the dismissal

[15] The applicant took no action to dispute her dismissal (leaving aside the issue of any unpaid entitlements) besides making this unfair dismissal application.

Section 394(3)(d): Prejudice to the employer

[16] Given the relatively brief period of the delay, there is unlikely to be any particular prejudice to the respondent (beyond that inherent in dealing with any unfair dismissal application).

Section 394(3)(e): The merits of the application

[17] The respondent claims that the applicant’s dismissal was a case of genuine redundancy. It said that the business was in severe financial difficulties and was looking at cutting its expenses in every way possible. This was denied by the applicant, who said that the respondent’s sales had increased. 10

[18] There is not enough evidence to ascertain the strength of the applicant’s case in any detail; however, I am satisfied it is not entirely without merit.

Section 394(3)(f): Fairness as between the applicant and other persons in a similar position

[19] The applicant conceded that there were no other persons in a similar position.

Conclusion

[20] I am not persuaded that there are exceptional circumstances that would justify extending time to consider the application.

[21] This is a case where the applicant did not turn her mind to making an unfair dismissal application until after the 21-day period had already expired. There is nothing raised by any of the factors referred to in the legislation, either when considered separately or in combination, that suggests the existence of circumstances that are ‘out of the ordinary course, unusual, special or uncommon’.

[22] I decline to grant an extension of time. The application for an unfair dismissal remedy is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

R Margi, the applicant, in person.

G Dupont for Marble Renewal Australia Pty Limited.

Hearing details:

Sydney.

2019.

February 21.

Printed by authority of the Commonwealth Government Printer

<PR705180>

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288  [21].

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3 (2011) 203 IR 1.

 4   See Griffiths v The Queen (1989) 167 CLR 372, 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 [23]-[26] (Rares J) and Hasim v Attorney-General of the Commonwealth (2013) 218 FCR 25 [65] (Greenwood J).

 5   PN28-9.

 6   PN30.

 7   PN32.

 8   PN38-58. The applicant initially referred to ‘Fair Trading’, but eventually agreed at PN56 it was the Fair Work Ombudsman.

 9   PN68.

 10   PN91.