Sese aka Monique Paukofe v BJs Services

[2021] FWC 5518

[2021] FWC 5518

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Sese aka Monique Paukofe
v
BJs Services
(C2021/3958)

DEPUTY PRESIDENT BOYCE SYDNEY, 8 SEPTEMBER 2021

Application to deal with contraventions involving dismissal.

Introduction

[1] This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise, make additions to, and/or amend same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

[2] On 8 July 2021, Ms Sese (otherwise known as Monique) Paukofe filed an application concerning general protections involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges she was dismissed by her employer BJs Services (Respondent) in contravention of Part 3-1 of the Act because she made a pay inquiry, and a complaint about misconduct and unlawful behaviour. Those matters are not particularised before me in terms of evidence.

[3] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances” under s.366(2) of the Act).

[4] Given that the Applicant filed her Application on 8 July 2021, and given it is not contested that the date of termination of the Applicant was 13 May 2021, the Application has been filed 35 days (or five weeks) outside of the 21-day time limit. The Applicant should have filed her Application on or before 3 June 2021. I note that the Applicant was employed by the Respondent (located in Middlemount, Queensland), between 23 March 2021 and 13 May 2021, i.e. a period of less than two months.

[5] At the hearing, the Applicant appeared for herself, and Mr and Mrs James, Directors, appeared for the Respondent.

Legal principles

[6] Section 366(2) of the Act 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.”

[7] Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”,has stated:

“[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 [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…” 1

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 2

(emphasis added)

[8] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters 3:

“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

..

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.

…

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.” 4

Reason for delay 5

[9] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group 6 (Bianco Mamo), as follows:

“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”

[10] The Applicant’s reasons for delay are set out in her statutory declaration, declared 18 August 2021. In relation to that statutory declaration, by way of summary, the Applicant says that after she was terminated on 13 May 2021 she sought legal advice immediately. However, on 25 May 2021, she was advised that her sister's husband had passed away. She then relocated (on 26 May 2021) from Middlemount, which is a town 250 kilometres outside of Mackay, to Brisbane, to assist her sister in dealing with the funeral arrangements.

[11] The funeral arrangements concluded on 10 June 2021. I note that the Applicant identifies, and I have no reason to doubt, that on the basis of her culture, there is a certain process that is followed in relation to funerals. In this case, the Applicant says that she was busy, or otherwise preoccupied, in engaging in that process, including preparing food, welcoming visitors to the deceased's house, and otherwise cleaning up and preparing for the next day during the period 26 May 2021 to 10 June 2021.

[12] The Applicant says that she received legal advice on 27 May 2021 that her Application had to be lodged by 3 June 2021. I note that 27 May 2021 is six days before the expiry of the 21-day time limit (it is also 41 days prior to the date that the Applicant filed her Application). On 28 May 2021, the Applicant says that she became aware of her sister’s mother-in-law passing away. Again, just as she did for her sister’s husband, she assisted in the funeral arrangements for her sister’s mother-in-law. She says that there was some family infighting, and a lot of family tension during the funeral process, but in any event, this process concluded on 24 June 2021. The Applicant says that she then sought emergency housing on 28 June 2021.

[13] Mr James, on behalf of the Respondent, makes a number of points in relation to the events that have occurred. In particular, he identifies, attached to the Respondent’s response to the Application, that an email was sent at or around the time the Applicant was dismissed on 13 May 2021, whereby, in the contents of that email, the applicant states:

“If you decline my offer, I have a very good case for Fair Work Commission, whom I have called today, and has been lodged through Working Women's Services under the General Protections Act.”

[14] Mr James highlights that this statement by the Applicant, made at the time of her dismissal, shows that the Applicant was well aware of her rights to make a general protections claim (from the moment she was dismissed).

[15] Mr James pointed out a matter that was not disclosed by the Applicant, namely, that the Applicant applied for and obtained employment at a facility management company in Middlemount, called “Ventia”, prior to filing her Application. The Applicant says that she did indeed apply, via walking into the office premises of the business, and that she became aware of the position because people in the local town had advised her about it. The Applicant says that she applied for a managerial position, but after accepting the role and turning up at the Ventia workplace, she was allocated to a cleaning/housekeeping role. Given that was not the position she had applied for, she decided not to continue in the role.

[16] The Applicant also submitted that she did not receive her termination pay from the Respondent until around two weeks after she was dismissed, albeit she was not entirely sure when she received her termination payment. She says that because she did not receive her termination pay and she had no money to top-up her mobile phone so as to have enough data to make her Application to the Commission online. However, Mr James identified that the Applicant was dismissed on a Friday, and she received her full termination pay the following Monday ($1,741.90), i.e. within one business day of her dismissal. Ultimately, the Applicant did not contest this fact.

[17] The Applicant also submitted that post her dismissal she could not gain access to a computer, whether at the local library or otherwise, and that money was extremely tight for her. Indeed, given money was so tight, the Applicant says that she was not willing to waste any of her mobile telephone data allowance to make her Application to the Commission.

[18] In response, Mr James stated that there has never been any issue with access to the computers at the local town library, and that there has been full mobile telephone coverage (including in terms of data) in Middlemount. He went on to submit that the Applicant’s assertions as to computer access and lack of mobile telephone data ought not be believed or otherwise accepted as reasons as to why the Applicant failed to lodge her Application within the 21-day time limit.

[19] Whilst I accept the very difficult circumstances confronting the Applicant post her termination, I am unable to accept that the reasons for delay advanced by the Applicant are credible.

[20] The Commission has two main methods by which general protections applications can be filed. Firstly, by completing an application in real time online via a webpage. Secondly, by downloading a word or pdf version of an application, completing same (including in handwriting), and then emailing the document to the Commission’s email address. The period of delay in this matter is a significant period, being 35 days. The Applicant’s evidence does not properly explain the basis upon which she could not access a computer or use her mobile telephone to file her Application during the whole of this 35-day period. Rather, her evidence merely asserts that this was the case. I find on the evidence before me that the reasons provided by the Applicant for delay weigh against a finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal 7

[21] The only evidence before me in relation to the action taken by the Applicant to dispute her dismissal is the email sent by her at the time of her dismissal to the Respondent’s payroll officer, whereby she states that her dismissal was unjustified, and says that she will be taking the Respondent to the Commission.

[22] This email put the Respondent on notice that the Applicant disputed her dismissal, but was not otherwise followed up upon until around 56 days thereafter when the Applicant filed her Application. I treat this criterion as a neutral consideration in this matter.

Prejudice 8

[23] In relation to prejudice to the Respondent, neither party made submissions on the matter. The absence of prejudice to a Respondent in not one that automatically weighs in favour of a finding as to exceptional circumstances. I therefore treat this criterion as a neutral consideration.

Merits 9

[24] The principles stated Kyvelos v Champion Socks Pty Ltd 10 (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and 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 …”. 11

[25] As I outlined at the beginning of this Decision, the Applicant says that she was dismissed for making an inquiry, and also a complaint. It appears on the evidence that there was at least some form of inquiry made by her in relation to her pay. However, the test in general protections matters involving dismissal (concerning the making of an inquiry or complaint) requires an employee to establish that they were dismissed “because” they made such inquiry or complaint.

[26] For the Respondent’s part, Mr James says that the Applicant was dismissed for failing to turn up to work for a number of days. He states that whilst the Applicant was dismissed, the dismissal occurred because the Applicant failed to attend for work and abandoned her employment.

[27] Ultimately, the resolution of the contested issues between the parties would be a matter for a court to determine, having regard to formal pleadings, evidence, cross-examination and submissions. There is not sufficient evidence before me to determine who is right and who is wrong in relation to the real reason for the Applicant’s dismissal. I therefore treat the merits of the Application as a neutral consideration in this matter.

Fairness as between the Applicant and other persons in a similar position 12

[28] There were no submissions made by either party on this criterion. I treat it as a neutral consideration.

Conclusion

[29] I have taken into account and considered individually and collectively the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis. One of those criteria weights against a finding as to exceptional circumstances, and the remaining criteria are neutral.

[30] On the basis of the reasons set out in this Decision, by reference to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances warranting the grant of an extension of time for the Applicant to file her Application. In view of this finding, there is no basis at law for me to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 08 July 2021 is dismissed by way of Order [PR733477].

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733553>

 1   [2011] FWAFB 975.

 2   Ibid.

 3   [2018] FWCFB 901.

 4   Ibid, at [17], [19], [38]-[39].

 5   Section 366(2)(a).

 6   [2021] FWC 3903.

 7   Section 366(2)(b)

 8   Section 366(2)(c).

 9   Section 366(2)(d).

 10 (1995) 67 IR 298.

 11   Ibid at 299 to 300.

 12   Section 366(2)(e).