Santina Lanza-Volpe v Virgin Australia Airlines Pty Ltd
[2022] FWC 2168
•16 AUGUST 2022
| [2022] FWC 2168 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Santina Lanza-Volpe
v
Virgin Australia Airlines Pty Ltd
(C2022/2877)
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 AUGUST 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time granted.
On 11 May 2022, Ms Santina Lanza Volpe (the Applicant) lodged an application with the Fair Work Commission (the Commission/the FWC) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to her dismissal by Virgin Australia Airlines Pty Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant’s employment commenced with the Respondent on 13 April 2019 and she was dismissed verbally on 19 April 2022. This was followed by an email terminating her employment on 21 April 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act.
The Applicant lodged her application on 11 May 2022 at 12.07am. She accepts that her application was made seven minutes outside of the 21 days required under s.366(1) of the Act.
The Respondent submits that the Applicant filed their application out of time and opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
On 20 July 2022, I convened a hearing by telephone to determine whether the application was lodged in time and if not, to allow the Applicant an additional period within which to lodge her application.
The Applicant’s submissions
The Applicant submits that there are four reasons for the delay to filing her application.
First, the Applicant originally was going to file a Form F2 – Application for an unfair dismissal remedy but changed to a general protections application. During evidence-in-chief, the Applicant could not remember what she read on the original application that led her to believe that she needed to file a Form F8 instead. She came to this conclusion late on 9 May 2022, requiring her to conduct research as to what was needed for a Form F8.
Second, the Applicant did not start on her application until 9 May 2022 as she was distressed about the contents of her dismissal letter. She sought to have the letter amended before filing her application to the Commission. She had concerns that the Respondent portrayed the Applicant in a negative light. The Applicant stated that working for Virgin was a large part of her life and losing her job has been equivalent to losing a part of her “identity, self-worth, and independence”. During evidence-in-chief, the Applicant confirmed that the Respondent had not yet updated the letter.
Third, the Applicant provided a letter from her treating psychologist stating that the Applicant suffers from bipolar disorder and borderline personality disorder. The situation she was in aggravated her condition, leading her to miscalculate the due date. In the letter, the psychologist expresses the Applicant’s feelings towards the letter she received from the Respondent.
“Facing such circumstances caused severe psychological regression that affected her judgment and cognitive functioning, loss of energy (fatigue), and she reported panic attacks. She miscalculated the deadline and was late in her submission due to her [sic] the effects of her psychiatric illness triggered by her circumstances relating to real and/or perceived unfair treatment by her employer. I note that she was late by one second.”
Finally, the Applicant submitted that her de-facto partner is emotionally abusive and made it difficult to put in her application, stating that she feels like “a prisoner in her own home”. The Applicant’s partner only allowed her time on the computer late at night once their children were asleep. On 10 May 2022 at or around 11.45pm, the Applicant drove to her parent’s house to scan and file the forms with the Commission. She conceded that in retrospect, she should have taken a photo of her form and uploaded that to the Commission. However, due to the abusive messages she was receiving from her partner, her psychological state at the time, and the stress she was under, she was unable to think logically.
The Applicant asserts that she did not attempt to dispute her dismissal. She spent most of the 21 days disputing the contents of her termination letter and how the letter portrayed her.
The Applicant does not provide reasons for how an extension may prejudice the employer.
The Applicant did not bring attention to any other cases that would be relevant.
The Respondent’s submissions
The Respondent sympathises with the Applicant and her difficult circumstances, though the Respondent submits that the Applicant has not provided a credible explanation for the entirety of the delay.
The Respondent references the Applicant’s initial completion of an incorrect form but make no submissions relating to it.
The Respondent contends that the Applicant’s medical condition impaired her capacity to complete her application in time. The Respondent asserts that the Applicant’s medical condition was not out of the ordinary and that it is not unusual for a dismissed employee to experience some degree of psychological distress. The Respondent further submits that the psychologist’s ability to accurately assess the Applicant is questionable. The psychologist saw the Applicant on 12 April 2022, a week before the Applicant’s termination and on 17 May 2022, almost a month after the Applicant’s termination.
The Respondent contends that the Applicant’s referral to her partner’s behaviour is not a credible reason for the entire 21-day period. Further, the Respondent states that the Applicant has not provided probative evidence of this statement.
The Respondent concedes that no prejudice would be suffered by the Respondent if an extension were to be granted. Though, the Respondent notes that an absence of prejudice is not a factor that would warrant the granting of an extension of time.
The Respondent did not bring attention to any other cases that would be relevant.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.
Given that the Applicant was unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
Turning my mind to the first three reasons brought before me by the Applicant, I am not inclined that these are exceptional circumstances either together or alone.
The Applicant stated that it took her time to conduct research to change forms. However, the contents of both a Form F2 and a Form F8 are quite similar. Further, the information provided by the Commission is quite extensive and clear as to what is required from a party seeking to make an application. Therefore, I do not find this to be exceptional.
The second and third reason can be dealt with together, as they both rely on the letter provided by the Respondent. The letter itself may have upset the Applicant, but this in itself is not exceptional. I rely on the Respondent’s submissions in this respect. The psychologist saw the Applicant twice, once before her dismissal and almost a month after her dismissal. There is doubt as to whether the psychologist would be able to accurately determine the Applicant’s state considering that the Applicant’s dismissal was too far removed from the appointment. Therefore, I do not find this to be exceptional.
Regarding the fourth reason brought by the Applicant, I find to be exceptional. The Respondent states that the Applicant’s partner being abusive is not credible for the entire 21-day period and there was no probative evidence provided by the Applicant. The Applicant’s testimony during evidence-in-chief and cross-examination was credible and reliable. The Applicant stated that she feels like “a prisoner in my own home” and is unable to use the computer until her children are asleep. I do note that the Applicant had responded to email correspondence from the Respondent outside of the “late night restrictions”. However, considering the circumstances and that the Applicant was seven minutes late, I find the Applicant’s home situation exceptional circumstance.
Based on the material and submissions before me, I find that the reasons put forward by the Applicant qualify as “exceptional”.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant did not dispute her dismissal generally with the Respondent.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission 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 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
I have sympathy for the Applicant, she has been put in an unenviable position where she relies on her role for psychological support where she cannot find support at home.
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that exceptional circumstances exist in this matter.
Pursuant to section 366(2) of the Act, the extension of time is granted. The Applicant’s Application will be progressed by way of a conference at a time and date to be advised. I Order accordingly.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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