Sandra Kemp v Alngith Corporation Ltd

[2015] FWC 7704

[2015] FWC 7704

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sandra Kemp
v
Alngith Corporation Ltd
(U2015/11798)

COMMISSIONER JOHNS SYDNEY, 17 NOVEMBER 2015

Application for relief from unfair dismissal.

Introduction

[1] On 3 November 2015 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Ms Sandra Kemp (Applicant) and dismissing her application for an unfair dismissal remedy.

[2] On 3 November 2015 the Applicant requested reasons for that decision. These are those reasons.

[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3

[4] The Applicant made an application for a further period for lodgement of her application for an unfair dismissal remedy in circumstances where her completed application was lodged on 14 September 2015, that being 41 days after her employment was terminated by Algnith Corporation Ltd (Respondent) on 4 August 2015.

The jurisdictional objection

[5] On 22 September 2015, the Commission wrote to the Applicant, outlining the matters the Commission was required to consider by the FW Act and asked her to provide a statement addressing those matters within 14 days. The Applicant was advised that unless she requested otherwise the matter would be dealt with on the papers.

[6] On 14 October 2015 the Applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the Applicant says that, although the termination took effect on 4 August 2015:

a) She was initially hoping to be reinstated to her position following a Board Meeting;

b) On 10 August 2015 she was advised that her husband’s father was very ill and she travelled from Weipa to Cairns, where she remained until 17 August 2015 to assist in his care; and

c) She had to move out of her place of residence before 31 August 2015.

[7] On 1 October 2015 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. In short, the Respondent says none of the factors relied upon by the Applicant would reasonably prevent her from bringing the application within time.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  5

Consideration

Paragraph 394(3)(a) - The reason for the delay

[10] It is indisputable that there were 41 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[11] The Applicant says the reasons for the delay were that she was initially hoping to be reinstated to her position following a board meeting, she travelled to Cairns to attend to her sick father in law’s care and that she was required to vacate her place of residence by 31 August 2015.

[12] The Commission, as presently constituted, was not satisfied that the Applicant’s reason for her delay in filing her application constitutes an exceptional circumstance within the meaning of the FW Act. The hope of reinstatement is regularly encountered and does not prevent a person from filing an application for an unfair dismissal remedy. While sympathetic about the Applicant’s father in law the whole of the period of the delay must be explained. Packing and moving home are not valid excuses.

[13] The reasons for delay weighed against granting the Applicant a further period for the filing of her unfair dismissal application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[14] It is uncontested that the Applicant first became aware of the dismissal on 4 August 2015.

[15] This factor weighed against granting the applicant an extension of time.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[16] The Applicant did not indicate that she took any action to dispute the dismissal aside from the filing of this application.

[17] This factor weighed against granting the Applicant a further period to make her application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[18] The Respondent did not disclose that it would suffer any prejudice as a result of the delay in the filing of the application.

[19] Prejudice to the employer was a neutral consideration.

Paragraph 394(3)(e) - The merits of the application

[20] In the matter of Kornicki v Telstra-Network Technology Group 6the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of 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.” 7

[21] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[22] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[23] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[24] If the Applicant can establish to the satisfaction of the Commission that there was no valid reason for the dismissal then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[25] Because the Applicant’s case was not without merit or lacking in any substance, this factor weighed in favour of granting her a further period to make her application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[26] I am satisfied that there were no other persons in a similar position to that of the Applicant. This was a neutral factor for consideration.

Conclusion

[27] For the reasons set out above, on balance, in the exercise of my discretion the Commission as presently constituted was not satisfied that there were exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect was issued on 3 November 2015. 8

COMMISSIONER

 1   PR573582.

 2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 3 Section 394(3) FW Act.

 4 [2011] 203 IR 1.

 5 Above note at [13].

 6   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 7   Ibid.

 8   PR573582.

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<Price code C, PR573773>