Shaneece Chitarra v Lin Jing and Ying Li ATF the Classic Family Trust T/A Salon Express Mirrabooka

[2016] FWC 4728

[2016] FWC 4728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaneece Chitarra
v
Lin Jing and Ying Li ATF the Classic Family Trust T/A Salon Express Mirrabooka
(U2016/7598)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JULY 2016

Application for relief from unfair dismissal.

[1] Ms Shaneece Chitarra alleged that the termination of her employment by Salon Express was unfair. Salon Express denied the allegation.

[2] Given her dismissal took effect on 1 April 2016, her unfair dismissal application lodged on 13 June 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Chitarra said that she did not lodge her application within 21 days because she needed to speak to the Apprenticeship Board; tried to get a separation certificate from her employer; could not find the application form and her employer did not get back to her.

[6] Ms Chitarra gave evidence that she was not aware of her unfair dismissal rights or the Fair Work Commission or that she had 21 days to lodge her application. She said she spoke to the Apprenticeship Board on 8 April 2016 who told her about unfair dismissal. She was then waiting for her employer to send her documentation.

[7] Ms Chitarra did not have a reasonable explanation of why she then took until 13 June 2016 to lodge this application.

[8] Documents filed by Salon Express evidenced that Ms Chitarra was aware on 1 April 2016 that her apprenticeship contract was to be terminated. The Department of Training and Workforce Development acknowledged that termination on 29 April 2016.

[9] I am not satisfied that Ms Chitarra had a reasonable explanation for the delay in lodging her application. That she was unaware of the 21 day time limit to make her application is not unusual. That she was unaware of her right to make an application is not unusual but she became aware of this right on 8 April 2016 yet she still took another two months to make her application.

[10] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[11] Ms Chitarra was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[12] Ms Chitarra contacted the Apprenticeship Board but did not do anything else to dispute her dismissal.

[13] This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[14] There was no evidence or submission about any prejudice to Salon Express. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[15] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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." 3

[16] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[17] Ms Chitarra said that on a day off she received a text message from her employer but she was unable to respond as she had no credit on her phone. She worked the next three days and this issue was not raised with her. At the end of work on 1 April 2016, she was told that she was dismissed because she had left the air conditioning on and had not replied to the message.

[18] Salon Express said that Ms Chitarra had received a number of warnings about her performance. Ms Chitarra did not accept the validity of those warnings.

[19] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I consider this criterion to be a neutral consideration.

(f) fairness as between the person and other persons in a similar position.

[20] There were no submissions that there were any persons in a similar position. This criterion is a neutral consideration.

Conclusion

[21] I am not satisfied that there are exceptional circumstances. Ms Chitarra did not have a reasonable explanation for the whole of the delay and none of the other criteria weigh in favour of a finding of exceptional circumstances. Ms Chitarra’s application for an extension of time is therefore dismissed as is her application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

S. Chitarra on her own behalf.

V. Li for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

14 July.

 1   [2011] FWAFB 975

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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