Shalini Mahendran v Linfox Armaguard Pty Ltd

[2019] FWC 3646

[2019] FWC 3646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shalini Mahendran
v
Linfox Armaguard Pty Ltd

(C2019/1246)

DEPUTY PRESIDENT BOYCE SYDNEY, 27 MAY 2019

Application to deal with contraventions involving dismissal – application filed out of time – applicant confined to hospital prior to and post 21 day time limit due to pending childbirth and birth of child – exceptional circumstances – extension of time granted.

[1] On 26 February 2019, Ms Shalini Mahendram (“Applicant”) lodged an Application pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). Her employment with Linfox Armaguard Pty Ltd (“the Respondent”) was terminated (by the Respondent) on 1 February 2019.

[2] 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 Fair Work Commission (Commission) may allow. 1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2The Applicant acknowledges that she lodged her Application four days outside of the statutory time limit. To be within time, the Applicant should have lodged her Application on or before 22 February 2019.

[3] On 3 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge her Application. The Respondent filed further written submissions on 22 May 2019.

[4] I have determined that the Applicant’s request for an extension should be granted. These are the reasons for that decision.

Matters to be taken into account

[5] 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.”

[6] 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

[7] 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)

[8] Generally speaking, the assessment of whether exceptional circumstances exists 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. 6

[9] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[10] 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.

[11] 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.

[12] 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. 7

[13] At the hearing, the Applicant relied upon a Certificate of Attendance at Blacktown Hospital showing she was confined to the hospital’s birth unit and post-natal ward from 19 February 2019 to 24 February 2019. She also tendered a proof of birth declaration dated 20 February 2019 identifying that she gave birth to a child on 20 February 2019. None of this evidence was contested by the Respondent.

[14] The Applicant gave further evidence that despite her best efforts prior to her confinement to hospital, she had difficulties in getting out and about (due to the late stage of her pregnancy) and her printer at home was not working. I find this evidence credible.

[15] On any view, the circumstances confronting the Applicant are ‘special’, and her reasons for the delay in lodging her Application four days out of time weigh in favour of a finding as to exceptional circumstances.

Action taken by the Applicant to dispute the dismissal

[16] There is no evidence of the Applicant contacting the Respondent to dispute her dismissal prior to lodging her Application. The Applicant says that she did not want to contact the management of the Respondent as she was making an application to the Commission. I do not consider this issue to be other than a neutral consideration in this matter given the delay is only four days.

Prejudice to the employer

[17] Neither party raised any issue as to prejudice to the Respondent. This is thus a neutral consideration in this matter.

Merits of the application

[18] Adverse action was taken by the Respondent in dismissing the Applicant on 1 February 2019.

[19] The Respondent rejects and denies that the Applicant was dismissed for prohibited reasons, being reasons contrary to Part 3-1 of the Act. The Respondent says that the Applicant was terminated for reasons of poor work performance.

[20] The Applicant asserts that she was dismissed because of complaints she made to the Respondent and/or because she exercised workplace rights in respect of her maternity leave and/or that she was discriminated against on the grounds of sex and/or pregnancy. I am not required to make any findings as to these matters. However, on a prima face basis, having regard to the limited facts and evidence before me, these assertions are at least arguable. The merits of the Application therefore weigh in favour of the Applicant.

Fairness as between the Applicant and other persons in a like position

[21] The parties did not make any submissions on this issue and it is therefore a neutral consideration in this matter.

Conclusion

[22] The Application has been lodged four days out of time in circumstances where the Applicant was confined to hospital due to pending childbirth prior to the expiration of the 21 day period. She appears to have an arguable case in respect of the merits of her Application.

[23] As is evident from the analysis above, the matters that were the subject of evidence and submissions at the hearing weigh in favour of a conclusion that there are exceptional circumstances. None of the factors weigh against such a conclusion. I am persuaded therefore that there are indeed exceptional circumstances warranting an extension of time in this matter.

[24] I not aware of any persuasive discretionary consideration which would warrant an alternative conclusion. I note the respondent referred me to the case of Micallef v Garfield Child Care Pty Ltd. 8 The facts and circumstances of that case, however, are substantially inconsistent with the facts of this case. Even if I was inclined to follow the outcome of that case on the basis of alleged consistency, I consider that to do so would be to enliven discretionary error.

[25] I will therefore allow the Applicant a further period within which to lodge her Application. The Application may be lodged by 26 February 2019.

[26] The Application will be progressed by way of a conference at a time and date to be advised by the Registry.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for herself.

Ms Jocelyn Fredericks (Group Manager Employee Relations) appeared for the Respondent.

Hearing details:

3 May 2019, Sydney

22 May 2019, final written submissions by Respondent

Printed by authority of the Commonwealth Government Printer

<PR708718>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 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   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).

 7   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.

 8   [2013] FWC 5447.