Sarina Galati v Veneto Club
[2014] FWC 7947
•18 NOVEMBER 2014
| [2014] FWC 7947[Note: Appeals pursuant to s.604 (C2014/8162) were lodged against this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 521] and 10 April 2015 [[2015] FWCFB 1830]] respectively for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Sarina Galati
v
Veneto Club
(C2014/6091)
COMMISSIONER JOHNS | MELBOURNE, 18 NOVEMBER 2014 |
Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.
Introduction
[1] On 27 August 2014 Sarina Galati (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s 365 of the Fair Work Act 2009 (Act). The Respondent to the application is the Veneto Club (Respondent).
[2] On 18 September 2014 the Respondent filed its response to the application.
[3] It is common ground between the parties that the Applicant was issued with a termination letter on 25 July 2014. The general protections application was received by the Commission on 27 August 2014. As such the application was lodged 12 days outside of the 21 day time limit for making the application.
[4] Because the application was lodged out of time it is necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time). Under section 366(2) of the Act the Commission may allow a further period if it is satisfied that there are exceptional circumstances.
[5] On 30 September 2014 the Commission issued directions for the parties to file and serve submissions and any evidence in relation to the out of time issue. On 2 October the Applicant filed her material. A number of pages were missing and the material was re-filed in complete form on 28 October 2014. On 8 October 2014 the Respondent filed its submissions.
Legislative scheme
[6] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:
(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 (2).
[7] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
(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.
[8] A Full Bench of the Commission has held the following in relation to “exceptional circumstances”: 1
[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.
[9] As can be seen above, an unfair dismissal application “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:
“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:
(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or
(e) faxing the document in accordance with rule 16.”
The reason for the delay
[10] The Applicant provides the following reasons for the delay:
(a) From 28 July 2014 to 8 August 2014 she was attempting to contact her apprenticeship provider to confirm whether they had been notified of her termination;
(b) From 9 August 20014 to 16 August 2014 she states she had an adverse reaction to medication which compromised her ability to concentrate and remain focussed. The Applicant attached to her submission a number of medical certificates. None of the medical certificates specifically cover the 9-16 August 2014 period. However;
(i) A medical certificate dated 20 August 2014 from Fawkner Health Care certified that the Applicant presented to the clinic on 12 August 2014 with a medical condition which included drowsiness and fatigue.
(ii) A medical certificate dated 4 July 2014 certified that the Applicant has been suffering choric fatigue for the last two years.
(c) On 10 August 2014 she was involved in a not at fault car accident which resulted in her being engaged in phone calls with the insurance companies and other driver for numerous days; and
(d) On 20 August 2014 she attempted to lodge her application via the e-filing system on the Commission’s website. After numerous failed attempts she was advised to submit the application by email. She says that she was initially advised of the incorrect email address, and on 27 August 2014 she managed to find the correct email address and filed her application. The Applicant also noted that she does not have internet access at her place of residence which affected her ability to lodge the application.
[11] The Respondent submits that the Applicant has not provided an acceptable reason for the delay. It submits that:
(a) The investigations made by the Applicant with her apprenticeship provider were not such that this prevented her from attending to her Application;
(b) There is no medical evidence for the period of 9 to 16 August 2014 to demonstrate that the Applicant was medically unfit to attend to her Application. Based on the submissions of the Applicant it is evident that she was involved in and responded to matters pertaining to her insurance claim for a motor vehicle accident during this period, which is inconsistent with her being medically incapacitated for this period;
(c) Whilst the material submitted by the Applicant establishes that she was involved in a motor vehicle accident, there is no evidence of medical treatment or incapacity arising from this accident;
(d) The events relating to the Applicant’s alleged difficulty in filing the Application took place 5 days outside the 21 day period. Further, the Applicant fails to identify taking any reasonable steps to ensure that the Application was filed correctly. 2
[13] This factor weighs against considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.
Any action taken by the person to dispute the dismissal
[14] The Applicant states in her Form 8 application that she was provided with letter of termination during a disciplinary meeting on 25 July 2014. She states that she did not agree to or sign the termination letter. Her last pay slip was dated 29 July 2014. She says that she was not sure of her official date of termination.
[15] She does not make any further submissions about any attempt to dispute the dismissal.
[16] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.
Prejudice to the employer (including prejudice caused by the delay)
[17] The Respondent does not claim that the 12 day delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time. 3
[18] A long delay can give rise to a presumption of prejudice. 4 Given the delay in this matter is twelve days, this is not relevant in the circumstances.5
[19] This factor favours exercising the discretion to allow a further period for the Applicant to lodge her application.
The merits of the application
[20] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.” 6
[21] The Respondent submits that it is not a highly meritorious application and that the Commission should not be persuaded to exercise its power to allow an extension of time. The Respondent says that it dismissed the Applicant on the basis that she had repeatedly failed to attend or was late in attending her school or work.
[22] The Applicant submits she attended work late for a number of reasons. She said that she was late to work partially because of her illness. She also claims she was late for work due to the long hours she was required to work, which she says were not in line with the relevant award.
[23] The Applicant also submits that the Respondent reacted adversely to events surrounding her workplace injury on 17 July 2014. From the material filed it is not clear what led to the injury however the Applicant provided the Commission with a medical certificate dated 17 July 2014 confirming she was unfit for work 18 to 19 July 2014.
[24] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant to lodge her application.
Fairness as between the person and other persons in a similar position
[25] This factor does not appear to be relevant in the circumstances as there are no persons in a similar position.
Conclusion
[26] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.
[27] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. (see Nulty v Blue Star Group Pty Ltd 7)
[28] Suffice to say it is not enough for the Applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.
[29] The Applicant’s explanation for the late lodgement of her application was that she was busy dealing with her apprenticeship provider and insurance companies. She says she was unwell whilst also suffering from a fatigue related illness. The first attempt that she made at lodging an application was already 5 days out of time. There was nothing preventing the Applicant from asking for help from a family member or friend to lodge the application.
[30] The Applicant also notes she does not have internet access at her place of residence. However, the applications can be filed in the Commission a number of ways including by delivering it by hand or sending it by post.
[31] In considering all of the circumstances related to Applicant’s application, and on the basis of the evidence provided by the parties, the exceptional circumstances envisaged by s 366 of the Act to exercise the discretion to allow a further period within which to lodge the application do not arise in this case.
[32] The period for the Applicant to lodge her application is not extended. The application is dismissed.
COMMISSIONER
1 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
2 Respondent Submission dated 8 October 2014, para 6
3 Submissions of the Respondent date 8 October 2014, para 10
4 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
5 See Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010] FWA 4080.
6 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
7 [2011] FWAFB 975
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