Samantha Bartolo v Little Wings Limited

[2020] FWC 3095

[2020] FWC 3095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Samantha Bartolo
v
Little Wings Limited
(U2020/6588)

DEPUTY PRESIDENT SAMS SYDNEY, 12 JUNE 2020

Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances exceptional - extension of the time for filing allowed.

[1] This decision concerns an application by Ms Samantha Bartolo (the ‘applicant’) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’).

[2] The applicant’s employment with Little Wings Limited (the ‘respondent’) was terminated with effect from 31 March 2020. The unfair dismissal application was lodged on 13 May 2020.

[3] Section 394(2) of the Act states 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 period of 21 days ended at midnight on 21 April 2020. The application was therefore filed 22 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] 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. 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; see: Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] 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.

[7] 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 the application.

Reason for the delay

[8] The Act does not specify what reason for 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; see: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[9] The applicant cited one particular reason for the delay in lodging the application in her Form F2 – Unfair Dismissal Application – as follows:

‘I was made redundant 4 weeks after having a baby (birth date was 26-2-2020). My newborn had a range of medical issues which are now somewhat being managed and has allowed me to finally be able to work on submitting an application for unfair dismissal. I can provide medical scripts as proof for medication if required.’

The applicant subsequently provided relevant medical documentation to my Chambers as foreshadowed above.

[10] I consider the reasons to be an acceptable or reasonable explanation for the delay. The reasons provided by the applicant were not contested by the respondent. Notwithstanding this, I consider the reasons provided by the applicant sufficiently meet the requirements under s 394(3) of the Act, and I determine accordingly.

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

[11] The applicant was notified of the dismissal on 27 March 2020. This is a neutral consideration.

Action taken to dispute the dismissal

[12] The only action taken in this regard by the applicant is the filing of this application. This circumstance is again a neutral consideration.

Prejudice to the employer

[13] The respondent did not raise any issues of prejudice in this case. As indicated in [6] above, the respondent did not contest the late filing of the applicant’s application. As an aside, I note the respondent is a non-profit organisation which provides a very valuable community service in providing flight and ground transport for sick children and families. 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

[14] In considering the merits of the substantive application, the Commission is not in a position to make findings of fact on contested issues. I refer to the observation of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[15] In Kornicki v Telstra-Network Technology Group AIRC Print P3168 22 July 1997, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) 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 merits of the substantive application for relief in the context of an extension or 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.’ (my emphasis)

I consider the merits to be a neutral consideration in this case.

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

[16] In Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

‘Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the important of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

[17] Neither party raised any matter relevant to this consideration and I am unaware of any other relevant matter. I therefore consider this to be a neutral consideration.

CONCLUSION

[18] 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 satisfied that when viewed collectively, the reasons for the delay in filing the application within time, were ‘exceptional circumstances’, within the meaning of s 394(3)(a) of the Act. The other factors in sub-s (3)(b)-(f) are either neutral, or tell in favour of granting an extension of time.

[19] Accordingly, the Commission’s jurisdiction is enlivened, and I propose to order that the time for Ms Bartolo’s application to be lodged, be extended to 13 May 2020.

[20] The application will be referred for further determination in accordance with the Commission’s protocols.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Ms C Pearson, Chief Executive Officer, and Ms K Price, Finance and Administration Manager, for the respondent.

Hearing details:

2020.

Sydney (by Telephone):

3 June.

Printed by authority of the Commonwealth Government Printer

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