Ruwani Jane Shields v High Country Capital Pty Ltd

[2022] FWC 564

[2022] FWC 564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ruwani Jane Shields
v

High Country Capital Pty Ltd

(U2022/731)

DEPUTY PRESIDENT DEAN CANBERRA, 16 MARCH 2022

Application for an unfair dismissal remedy – application dismissed.

1. Ms Ruwani Jane Shields (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of her employment with High Country Capital Pty Ltd (the Respondent).

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Applicant’s dismissal took effect on 15 December 2021 and she made the application on 13 January 2022, eight days outside the 21 day period.

1. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

1. The matter was listed for hearing by telephone on 15 March 2022. The Applicant was self-represented and the Respondent was granted permission to be represented by Mr Anton Duc of counsel.

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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]

1. The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take 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.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

1. The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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.[3]

1. The Applicant provided the following explanations for the delay:

· She does not have a computer and printer at home and had to rely on the use of the public library in Cooma in order to print and copy evidence and documents.

· The Cooma library is a round trip of 102 kilometres to drive. As she was unemployed her weekly fuel budget was limited.

· After her dismissal on 15 December 2021 she was gathering evidence and supporting document to accompany the application. There was too much to send via email so she had to send by post.

· Because of the Christmas and New Year holidays, she essentially only had 10 business days during the 21 day period to gather evidence and submit her application.

· The public holidays, as well as COVID-19 have affected the postal service and caused the delay in delivery times.

· She was a close contact of a person who has been exposed to a positive COVID-19 case and had to be tested on 22 December 2021 and remained in isolation until her result returned negative on 25 December 2021.  

· For these reasons, her application was received eight days late although it was mailed out within the 21 day period.

1. In her oral evidence, the Applicant additionally said that during the relevant time period she was engaged in an application process for another job, and she thought she had 21 days to put her application in the post as opposed to having the Commission receive her application within that time period.

1. The Respondent opposed the granting of an extension of time. It submitted that the Applicant could have lodged her application over the telephone, or on-line by email and that there are other methods of sending large amounts of documents, such as Dropbox, file sharing, or using zip files.

1. The Respondent argued that the Applicant’s claim that there were too many public holidays over the period was the reality faced by all litigants and her circumstance was not exceptional. In terms of her explanation that she had to isolate during COVID, it should not present any issue given the wide array of options to file an application. The Applicant merely failed to make the enquiries to find out what other means there might have been to lodge a claim and such failure was not exceptional.

1. The Respondent submitted that the falling of Christmas was not held to be an exceptional circumstance by the Commission in a previous case. The termination took place on 15 December 2021 and the Applicant had nine days prior to Christmas to seek advice or take action. The Applicant could have faxed, emailed, electronically lodged, or made her application by telephone. The Applicant’s failure to lodge should not be blamed on the post.

1. In response to the Respondent’s submissions, the Applicant said that although she understood the application could have been made over the phone, she did not do that as she was also attaching the evidence to support her application. She said that she did know how to make a zip file or to use dropbox. She submitted that she should not be penalised for her lack of computer skills and for not having the financial means to pay for the extra fuel costs. She claimed that the public holidays and weekends affected the times in which she could use the Public Library and the Australia Post. She said that it was, and still is, widely advertised that considerable delays are expected due to COVID-19 and Christmas/New Year, being traditionally the busiest time of the year for the postal service.

1. I am not satisfied that any of the reasons for the delay advanced by the Applicant are exceptional. Technology issues and a misunderstanding of the timeframe to lodge an application are not exceptional, in that they are routinely encountered by applicants.

1. Likewise, while a shortage of funds post dismissal not uncommon, it was not necessary for the Applicant to make multiple trips to the closest library to lodge her application.  

1. The Commission has previously found that having the Christmas period fall within the period in which an application must be lodged is not of itself an exceptional circumstance[4]. The Applicant should have taken appropriate steps to ensure that the application was lodged on time, and in particular she was aware of the expected delay in postal service during that period.

1. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant was aware of her dismissal on the day it took effect and therefore had the full 21 day period to lodge her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant did not take any action to dispute the cessation of her employment until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.

1. The Applicant was dismissed for allegedly acting in a rude and aggressive way towards the Directors of the Respondent. She denies this, and alleges she was subjected to bullying and harassment.

1. The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

1. I do not consider that there are any persons or cases relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration.

Conclusion

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

R Shields, on her own behalf.
A Duc, of counsel for High Country Capital Pty Ltd.

Hearing details:

2022.
By telephone:
March 15.

<PR739288>

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[4] Smith v KJM Contractors Pty Ltd [2010] FWA 5515.

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