Samra Vilic v Raw Hair

[2015] FWC 4615

[2015] FWC 4615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samra Vilic
v
Raw Hair
(U2015/5399)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 JULY 2015

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Samra Vilic (the Applicant) made an application on 14 May 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal on 22 April 2015 was harsh, unjust and unreasonable. On 15 May 2015 the Fair Work Commission (the Commission) wrote to Ms Vilic advising that her application was lodged outside the 21 day statutory timeframe for making an unfair dismissal application and that if she wished to continue with her application it would be listed for a jurisdictional hearing. On 22 May 2015 Raw Hair (the Respondent) objected to the application on the grounds that it had been made outside the statutory timeframe specified in s.394(2) of the Act. The application was lodged one day late.

[2] Directions were issued on 28 May 2015 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties. The jurisdictional objection was heard by the Commission on 3 July 2015.

[3] At the hearing, Ms Vilic was represented by a family member, Ms Fadila Sabitovic. Mrs Connie Attard, one of the joint-owners of Raw Hair, represented the Respondent.

[4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Ms Vilic commenced employment with Raw Hair as a full-time hairdresser on 11 March 2014. Ms Vilic was dismissed with immediate effect on 22 April 2015 as a result of ongoing poor performance, a number of incidents relating to unsatisfactory behaviour and for a serious breach of occupational health and safety (OH&S) relating to personal hygiene in the salon kitchen. The salon kitchen is where employees take their meal breaks and where food is prepared for salon café (an associated business).

[6] Following Ms Vilic’s dismissal there was a delay in Ms Vilic receiving her final payment. The delay was the subject of discussions between Ms Vilic and Mrs Attard, with the final payment made on 4 May 2015.

The Applicant’s case

[7] In her application Ms Vilic stated that her dismissal was unfair for several reasons, including that her dismissal was not related to her performance at work, because she did not receive a warning about her conduct, and because the OH&S breach did not relate to her job or performance.

The Respondent’s evidence

[8] The Respondent submitted that Ms Vilic’s dismissal was for both her ongoing poor performance, which had been the subject of both written and verbal warnings, and the serious OH&S breach which involved Ms Vilic changing/adjusting her sanitary napkin in the salon kitchen and then washing her hands in the kitchen sink.

The Relevant Legislation

[9] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] At the hearing Ms Sabitovic submitted on behalf of Ms Vilic that she was aware of the 21 day timeframe for making an unfair dismissal application but that she delayed making the application on Ms Vilic’s behalf because she was concerned that it might impact on the timing of the Respondent making Ms Vilic’s final payment. As noted above, that final payment was made on 4 May 2015. It was further submitted by Ms Sabitovic that she was ill for the period 9 to 13 May 2015, that she had miscalculated the 21 day period and that she had not informed Ms Vilic of the 21 day statutory timeframe.

[12] The Respondent submitted that the reason cited by Ms Vilic for the delay in lodging her application, i.e. that there were issues with the Respondent making the final payment, did not constitute exceptional circumstances. The Respondent further submitted that the final payment was made to Ms Vilic on 4 May 2015, nine days prior to the conclusion of the 21 day timeframe.

[13] While one can understand Ms Vilic holding off filing her application until she received her final payment so as not to prejudice that payment, the fact that the payment was received on 4 May 2015 meant that there were still nine days in which Ms Vilic could lodge her application prior to the expiry of the 21 day statutory timeframe. While Ms Sabitovic submitted she was ill for part of that period, no evidence was provided to support that submission. Further, noting that the period of illness was not for the entire period of nine days, no explanation was provided as to why the application could not have been lodged after the final payment was received on 4 May 2015 and before Ms Sabitovic allegedly fell ill on 9 May 2015.

[14] Together these factors do not support a finding that the reasons for the delay constitute exceptional circumstances.

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

[15] It was not disputed that Ms Vilic became aware of her dismissal on the day she was dismissed, i.e. 22 April 2015.

[16] This does not point to the existence of any exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[17] No submissions were made on this point.

[18] The material before the Commission supports a finding that, in the period up until 4 May 2015, Ms Vilic’s focus was on securing her final payment and that Ms Vilic did not take any steps to dispute her dismissal until her application was lodged with the Commission on 14 May 2015.

[19] This lack of action by Ms Vilic to dispute her dismissal militates against a finding of the existence of exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[20] Ms Vilic made no submissions on this point.

[21] The Respondent submitted that it would be prejudiced by virtue of the time and cost involved in defending the claim were an extension of time granted.

[22] As Ms Vilic’s claim was lodged one day outside the 21 day statutory timeframe, I consider this factor to be a neutral consideration.

(e) The merits of the application

[23] As mentioned above, in her application Ms Vilic stated that she considered her dismissal unfair for several reasons, including that her dismissal was not related to her performance at work, because she did not receive a warning about her conduct, and because the OH&S issue breach did not relate to her job or performance. At the hearing, it was submitted that Ms Vilic’s recollection of the events leading up to her dismissal differed to those of the Respondent. I note that in respect of the serious OH&S breach relied upon by the Respondent, that Ms Vilic in her witness statement, which was provided to the Commission but not tendered as Ms Vilic did not attend the hearing, did not dispute that the incident had occurred, though she did dispute the significance of the breach.

[24] The Respondent submitted Ms Vilic had been given one written warning and two verbal warnings regarding her performance prior to her dismissal. The Respondent further submitted that the warning letter given to Ms Vilic clearly stated that her employment may be terminated if her performance and attitude did not improve. The Respondent also contended that Ms Vilic was given time to address the performance issues that had been raised with her but chose not to improve her performance. As to the OH&S incident, the Respondent submitted that it involved a serious breach which carried with it the risk of cross contamination.

[25] The material before the Commission supports a finding that the merits of Ms Vilic’s application are at best arguable, though not compelling. This in turn does not support the granting of an extension of time based on the merits of the application.

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

[26] No submissions were made on this point. I therefore consider this factor a neutral consideration.

Conclusion

[27] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1 (Nulty) in the following way:

“[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 ...”

[28] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in identical terms to s.394(2)(a) of the Act.

[29] Having considered all of the factors set out in s.394(3), and drawing on Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision.

Appearances:

F. Sabitovic for the Applicant.

C. Attard for the Respondent.

Hearing details:

Melbourne.

2015:

July 3.

 1 (2011) 203 IR 1

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