Shellie Milton v Aldi Foods Pty Limited as General Partner of Aldi Stores (A Limited Partnership)

[2018] FWC 1437

[2018] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shellie Milton
v
ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)
(U2017/12953)

DEPUTY PRESIDENT DEAN SYDNEY, 16 MARCH 2018

Application for an unfair dismissal remedy – extension of time.

[1] Ms Shellie Milton was employed by ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) (Aldi) until she was dismissed on 14 November 2017.

[2] On 6 December 2017 Ms Milton lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that she had been unfairly dismissed by Aldi. Her application was made one day outside the 21 day period prescribed by s.394(2) of the Act.

[3] The matter was listed for hearing on 9 March 2018 to determine whether Ms Milton should be granted an extension of time pursuant to s.394(3) of the Act to make her application. At the hearing Mr K Jubb appeared for Ms Milton and Ms M McNaughton appeared for Aldi. Both parties were granted permission to be represented pursuant to s.596 of the Act

[4] Section 394(3) of the Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Haynes.

[6] 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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] Submissions made on behalf of Ms Milton provide three principal reasons for the delay:

a. Ms Milton’s brother, with whom she resides, was seriously injured in a motor vehicle accident on 31 August 2017;

b. Ms Milton suffered an injury on 11 November 2017 which impeded her ability to attend to basic every day matters. Ms Milton’s injury required her to wear a “moon boot” for a period of time; and

c. Ms Milton was shocked and distressed, and combined with her need to care for her brother, her “time management was out”.

[9] Ms Milton’s representative argue that the reasons for the delay, if taken fully into account, constitute exceptional circumstances. It was further submitted that:

a. there were genuine reasons why Ms Milton did not file her application within time;

b. the dismissal has had severe consequences on Ms Milton, which led to her applying for Centrelink during the time period for her making the application;

c. there is no prejudice to the employer in granting an extension of time;

d. the circumstances of Ms Milton’s situation since August 2017 are exceptional; and

e. the delay is minimal and the reasons for dismissal are highly contested.

[10] In response, Aldi submitted that there were no exceptional circumstances demonstrated by Ms Milton which would warrant the granting of an extension of time. Aldi submitted that:

a. The accident of Ms Milton’s brother occurred on 31 August 2017. Ms Milton has been supporting her brother for some three months before the statutory deadline for her application. Ms Milton has provided no evidence of additional obligations in the 21 day period after the date of termination of her employment; and

b. Ms Milton’s injury was sustained 24 days before the statutory deadline for the submission of her application. She has provided no evidence as to how the injury (to her foot) prevented her from lodging her application within the required timeframe.

[11] At the hearing, Ms Milton gave evidence that during the extended period after her dismissal:

a. she remained the carer of her injured brother and was required to assist him in attending medical appointments as well as day to day activities;

b. she injured her ankle which required her to be put on a ‘moon boot’ and to attend her own hospital appointments;

c. she had been waiting for ‘paperwork’ from Aldi and had spent days in Centrelink so as to organise payment;

d. the range of events occurring had adverse impact on her and affected her ability to deal with the matters at the time;

e. she called the Commission the day before she lodged the application and was told that she had until the following day to file;

f. she attended the Commission in person to file the application and was advised at that point that her application was made one day late;

g. she honestly thought that she lodged the application on the last day of the allowed timeframe; and

h. she would have filed online on the previous day had she realised and her application would have been made within time.

[12] Various medical reports and other material pertaining to the injury to Ms Milton’s brother were admitted into evidence. The material indicates that Ms Milton has been the primary carer for her brother and is required to assist him with domestic tasks.

[13] Also admitted into evidence was a Centrelink Medical Certificate relevant to Ms Milton’s own injury sustained on 11 November 2017. The certificate, signed by Dr Catlin, states that Ms Milton was unfit to work from 11 November 2017 to 2 January 2018.

[14] I must consider whether there is a credible reason for the whole period of the delay. 2 The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances3. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example4:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[15] In the period before she filed the application, Ms Milton was able to attend medical appointments and Centrelink. She was not incapacitated to an extent where she could not lodge her application within the required timeframe.

[16] Ms Milton relied on her carer responsibilities as a major part of her reasons for the delay. Such a circumstance, whilst very unfortunate, is not exceptional.

[17] In relation to Ms Milton’s reason for the delay caused by alleged wrong information from a Commission staff member, Ms Milton produced no evidence to substantiate such claim. Ms Milton waited until the 21st day after her dismissal to contact the Commission and by her own admission was aware of the statutory time limit. She chose to lodge the application the next day even though she could have lodged it online within time. I do not consider a misapprehension of the 21 day timeframe to be exceptional.

[18] Having considered all of the evidence and submissions before me, I find that none of the matters addressed by Ms Milton, individually or collectively, can be considered out of the ordinary, unusual or uncommon. This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[19] There is no dispute that Ms Milton was advised of her dismissal on 14 November 2017. I find that this this weighs against a conclusion that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[20] There is no suggestion that Ms Milton has taken any action to dispute her dismissal until the present application was lodged. I find that this weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[21] I am not persuaded that granting an extension of time would result in a prejudice to Aldi. 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.

The merits of the application

[22] For the purpose of determining whether to grant an extension of time for Ms Milton to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁵

[23] Ms Milton strongly denied any wrongdoing and contended that the allegation against her was not properly investigated and the decision to terminate her was predetermined.

[24] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’7

[26] I do not consider that there are other relevant persons in a similar position to Ms Milton, and I therefore find it to be a neutral consideration.

Conclusion

[27] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Milton are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

K Jubb for Shellie Milton.

M McNaughton for ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership).

Hearing details:

2018.

Brisbane and Sydney (by telephone):

March 9.

<PR601051>

 1   [2011] FWAFB 975.

 2   [2010] FWAFB 7251.

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 4   [2016] FWCFB 349 at [31].

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

 6   [2015] FWC 8885.

 7 Ibid at [29].

Printed by authority of the Commonwealth Government Printer