Samantha Davey v Warnbro Community & Family Centre Inc

Case •

[2024] FWC 871

•

4 APRIL 2024
[2024] FWC 871

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samantha Davey
v

Warnbro Community & Family Centre Inc

(U2024/506)

COMMISSIONER SCHNEIDER

PERTH, 4 APRIL 2024

Application for an unfair dismissal remedy – out of time – extension of time

  1. Samantha Davey (the Applicant) made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Warnbro Community & Family Centre Inc (the Respondent).

  1. It appears that the application has been filed outside of the 21-day time limit.

  1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

  1. The parties were directed to file submissions regarding the out of time issue. The Applicant filed submissions in the Commission on 15 March 2024. The Respondent filed submissions in the Commission on 22 March 2024. 

  1. The submissions of the Applicant primarily focused on the merit of her application, with the submissions providing little explanation of the reason for the delay in the Applicant filing her application with the Commission. The Applicant’s submissions focused on issues such as allegations of bullying and workplace harassment occurring prior to the termination of her employment and concerns about the conduct and behaviour of a former treasurer.

  1. A Hearing was listed to deal with the out of time issue. The Applicant failed to attend the hearing on 28 March 2024, and it was subsequently adjourned. The Applicant had been forewarned that failure to attend could result in the dismissal of the matter or the out of time issue being determined on the papers. Upon adjournment of the Hearing, due to the Applicant’s non-attendance, I reserved my decision to be made on the papers.

Relevant law

  1. Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“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.
…

(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)…”

  1. As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

  1. The parties do not dispute that the dismissal took effect on 20 December 2023. The final day of the 21-day period was 10 January 2024 and ended at midnight on that day. It is a matter of record that the application was made on 13 January 2024 and is three days out of time.  

  1. The application having been made outside the 21 days after the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

  1. Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.

  1. Section 394(3) of the Act lists the considerations the Commission must take into account:

“394      Application for unfair dismissal remedy

….

(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.”

  1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] 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.[4]

  1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] An applicant does not need to provide a reason for the entire period of the delay.

  1. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

  1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]

  1. This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.

Consideration

Reason for the delay

  1. The Applicant submitted the following reasons as contributing to the delay:

·The Applicant’s personal circumstances, being the sole income earner of her family and accordingly the impact her termination had on her personal circumstances.

·The Applicant raised concerns over the Respondent withholding of her final payment and the impact this had on her health during this period.

  1. I have no doubt that the Applicant’s dismissal had a negative effect on her and caused difficulty in preparing her application.

  1. The Commission does not have before it any notable evidence to support the Applicant’s assertions and explain the severity of the circumstances disclosed.

  1. Such reasons do not alone constitute exceptional circumstances and must be considered alongside my findings to follow, in relation to the other criteria in the Act.

Did the Applicant first become aware of the dismissal after it had taken effect?

  1. It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

  1. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 13 January 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

What are the merits of the application?

  1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

  1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[8] and the same applies to section 394(3)(e) of the Act.

  1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. 

  1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

  1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a)   the reasons for the delay, being reasonable;

(b)   the Applicant being aware of the dismissal at the time that it took effect;

(c)   the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;

(d)   the absence of any prejudice to the employer;

(e)   the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f)    no issue of fairness arising as between the Applicant and other persons in a similar position.

  1. Again, it is noted that 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.[9] 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.[10]

  1. As noted earlier, the Applicant’s submissions primarily discuss the merit of her application. From the submissions provided by the Respondent, it is clear that there is significant disagreement between the parties regarding the dispute. In such circumstances, I would not be able to come to any reliable conclusion on the merits of the matter or contentions of the parties without a Hearing of such items as stated earlier.

  1. A significant volume of the material submitted by the Applicant relates to events that occurred during her employment, including allegations by the Applicant about workplace bullying and harassment. However, the Applicant has not provided any substantial material regarding the failure to file her application with the Commission on time. The Applicant did not provide any detailed submissions that adequately or reasonably explain the late filing.

  1. The Applicant submitted that she was upset and stressed about the impact of the Respondent’s decision to terminate her employment and effect it would have on her personal circumstances. 

  1. Naturally, it is not uncommon for an individual to find the termination of their employment stressful and it is, often, an upsetting life event. Nevertheless, the shock and distress which arises as a result of dismissal, often and in the matter currently before the Commission, does not itself lend in favor of a finding of exceptional circumstances.

  1. I am not satisfied the circumstances of this matter are of those of a nature that would support a finding of exceptional circumstances.

  1. The Applicant did not provide any submissions or evidence suggesting there was a delay in her being made aware of her termination. The Applicant also did not make any submissions or present evidence to reflect that she had sought to dispute her dismissal in other ways which may have contributed to a delay.

  1. The Applicant raised concerns in relation to alleged unpaid entitlements from the Respondent, as highlighted to the Applicant previously, these matters are generally outside the scope of the Commission. Although I have found that there are no exceptional circumstances, I have not made any findings regarding the merit of the Applicant’s claims concerning underpayment wish she may seek to pursue alternative forms of action to remedy.

Conclusion

  1. Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.

  1. Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect has been issued.[11]


COMMISSIONER

Determined on the papers.


[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Ibid; [2015] FWCFB 1877.

[3] [2011] FWAFB 975, at [13].

[4] Ibid.

[5] [2018] FWCFB 901, [39].

[6] Ibid, [40].

[7] Ibid, [17].

[8] [2011] FWAFB 975, [36].

[9] [2011] FWAFB 975, [13].

[10] Ibid.

[11] [PR773185].

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<PR773184>

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