Saskia-Lara Cislaghi Lanza v Victory Management Services Pty Ltd
[2020] FWC 168
•14 JANUARY 2020
| [2020] FWC 168 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Saskia-Lara Cislaghi Lanza
v
Victory Management Services Pty Ltd
(C2019/7668)
DEPUTY PRESIDENT BOYCE | SYDNEY, 14 JANUARY 2020 |
Application to deal with contraventions involving dismissal.
Introduction
[1] On 17 December 2019, Ms Saskia-Lara Cislaghi Lanza (Applicant) lodged an application the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth)(Act). The Applicant did so by filing a Form F8 via the Commission’s website.
[2] The Applicant claims that her employment with Victory Management Services Pty Ltd (Respondent) was terminated on 25 November 2019, contrary to Part 3-1 of the Act.
[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow.1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.
[4] The Applicant acknowledges that she lodged her application two minutes outside of the statutory time limit (i.e. at 12:01am AEDT on 17 December 2019). To be within time, the Applicant should have lodged her Application at or before 11:59pm AEDT on 16 December 2019.
[5] On 10 January 2019, I convened a conference in order to program the matter for hearing. The Applicant appeared for herself. Mr William Marshall (Solicitor, Macpherson Kelley) appeared (with my leave) 2 on behalf of the Respondent.
[6] Having had regard to the submissions made by the Applicant at the mention, and noting that the Respondent has since withdrawn any and all objection to the Applicant being granted an extension of time to file her application, there would be no utility in holding a further hearing.
[7] I have determined that there are exceptional circumstances that warrant the exercise of my discretion to grant the Applicant an extension of time to file her application. The reasons for my decision are as follows.
Matters to be taken into account
[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:
“366 Time for application
…
(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.”
[9] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4
[10] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd 5 (Nulty)as follows:
“[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.” (emphasis added)
[11] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.6
[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.7
[13] I now turn to address the particular matters to which regard must be had.
Reason for the delay
[14] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.
[15] 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.
[16] 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.8
[17] The Applicant filed her application at 12:01am on 17 December 2019. She did so through the Commission’s online lodgement portal. The Applicant submits that the delay (being two minutes or thereabouts) was caused by the slow processing of the credit-card payment required to successfully lodge the application with the Commission. The Applicant submits that she intended for the material to be filed on 16 January 2019, and had begun the process to lodge the material before the midnight deadline.
[18] In latter correspondence, the Respondent did not press any objection to the Applicant’s case and has not made any submissions, or provided any evidence, that would make me take a view contrary to the Applicant’s case at hand.
[19] I note that the Commission’s records accord with the Applicant’s submissions (at least in regard to the time the application was lodged). I accept that the Applicant began the lodgement process before the midnight deadline. Further, I accept that the delay in processing the payment caused the Commission’s online lodgement system to accept the application two minutes after the statutory deadline.
[20] Given that the technical process is outside of the Applicant’s immediate control, and that she made an effort to file her material before the statutory deadline, I find that the reason for delay in these circumstances strongly weighs in favour of a finding of exceptional circumstances.
Action taken by the Applicant to dispute the dismissal
[21] No submissions or evidence was received on this point. I find this to be a neutral factor in this matter.
Prejudice to the employer
[22] No submissions or evidence was received on this point. However, given the brevity of the delay, I find there to be no prejudice to the employer. As such, I find this to be a factor in favour of a finding of exceptional circumstances.
Merits of the application
The principles stated Kyvelos v Champion Socks Pty Ltd, 9 albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 10
[23] No submissions or evidence was received on this point. I find this to be a neutral factor in this matter.
Fairness as between the Applicant and other persons in a like position
[24] No submissions or evidence was received on this point. I find this to be a neutral factor in this matter.
Conclusion
[25] For the reasons above, I find that there are exceptional circumstances to enliven my discretion to grant an extension of time.
[26] I choose to exercise my discretion and grant that extension to 17 January 2019.
[27] The matter will be reallocated to the Commission’s registry and programmed for arbitration.
[28] Orders to this effect will be made in due course.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for herself.
Mr William Marshall (Solicitor, Macpherson Kelley) appeared on behalf of the Respondent.
Hearing details:
A telephone mention was held on 10 January 2019
Printed by authority of the Commonwealth Government Printer
<PR715876>
1 Fair Work Act 2009 (Cth) s 366(1) and (2).
2 Fair Work Act 2009 (Cth) s 596. I note that leave was granted on the basis that the matter at hand dealt with issues of jurisdiction (which are inherently complex), and that both the Commission and the parties would be assisted by the aid of a legal professional.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
4 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
5 [2011] FWAFB 975.
6 [2019] FWCFB 2384 at [16] – [20].
7 Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
8 See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
9 (1995) 67 IR 298.
10 Ibid at 299 to 300.
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