Shirley White v Islamic Practice and Dawah Circle Inc
[2021] FWC 1380
•16 MARCH 2021
| [2021] FWC 1380 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shirley White
v
Islamic Practice and Dawah Circle Inc
(U2021/279)
DEPUTY PRESIDENT DEAN | SYDNEY, 16 MARCH 2021 |
Unfair dismissal application – effective date of dismissal - extension of time - application dismissed.
[1] This decision concerns an application by Shirley White (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed as a teacher by Islamic Practice and Dawah Circle Inc (the Respondent).
[2] Her employment commenced in January 2020 on a one year fixed term contract. In June 2020 the fixed term contract was ended, ostensibly due to the Applicant’s resignation, and thereafter she was employed on a casual basis until her employment ended in December 2020.
[3] There was a conflict as to when the Applicant’s dismissal took effect. The Applicant’s evidence was that she became aware of her dismissal on 9 December 2020. The Respondent’s evidence was that the effective date of the dismissal was 3 December 2020. The unfair dismissal application was lodged on 9 January 2021.
[4] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).
[5] Whether the Applicant’s employment ended on 3 or 9 December 2020, the application was made outside the 21 day time limit allowed by the Act. Accordingly, I must decide whether an extension of time should be granted.
[6] At the hearing on 15 March 2021, the Applicant appeared on her own behalf. Ms Emily Shoemark of Snedden Hall & Gallop solicitors appeared with permission for the Respondent. Evidence was given by the Applicant and Dr Mahmoud Eid (Principal of the Respondent).
When did the dismissal take effect?
[7] On the material before me, I am satisfied and find that the dismissal took effect on 9 December 2020. I accept the evidence of the Applicant that she did not receive the email sent to her at 4.05pm from the Respondent confirming it was to be her last day of work at the school. When she next attended the school on 9 December 2020, she was asked to return her keys and swipe card, which I accept was when she became aware that her employment had ended.
[8] Accordingly, the application was made ten days outside the prescribed period. I now turn to consider whether an extension of time should be granted.
Extension of time
[9] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2
[10] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[11] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.
Reason for the delay
[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.3
[13] The Applicant provided a Statutory Declaration in which she said that she had attempted without success to upload the completed F2 application form to the Commission’s online lodgement portal. She then posted the form via express post on 21 December 2020 to the Commission’s registry in Canberra. She says the application “sat at an Australia post location for 10 days before being returned to me”. She then attended the Canberra registry office to hand deliver the application, but the office was unattended. She then obtained another express post envelope and sent the application again to the Commission on 31 December 2020.
[14] The Respondent submitted that none of these matters evidenced exceptional circumstances.
[15] The Commission’s records show that the application form received from the Applicant was via email dated 9 January 2021. The application form attached to her email was also dated by the Applicant as 9 January 2021. This was not mentioned in the Applicant’s evidence. It is clear she was able to send the form electronically.
[16] The Commission’s website clearly states that the registry offices are closed in Canberra, and parties should not attend the office unless a Commission Member specifically requests you to. The website also highlights that Australia Post is experiencing delays due to COVID-19 and so parties are strongly encouraged to use the Commission’s online lodgement service or send applications by email. Otherwise, parties are advised to allow extra time for postal services so the Commission receives applications within the relevant time limits. In addition, I note that applications can be accepted by the Commission by phone.
[17] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant constitute an acceptable reason for part but not all of the delay. I accept the Applicant posted her application within the 21 day time limit, however to obtain the postal information for the Canberra registry, the Applicant must have seen the information advising of the delays experienced by Australia Post, and the strong encouragement to lodge applications via email or online. The Applicant did in fact lodge via email on 9 January 2021. Instead of re-posting her application on 31 December which she says she did, she could have lodged her application via email at this time, minimising the delay in filing.
[18] Overall, I consider the reason for the delay neither weighs for or against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[19] The Applicant was aware on 9 December 2020 that her employment had ended. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
[20] The Applicant took no other action to dispute her dismissal other than making this application.
Prejudice to the employer
[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. While it is not possible to make any firm or detailed assessment of the merits, it seems to me that the merits of the application are not strong, as the Applicant’s employment was on a casual basis for a relatively short period of time.
[23] I consider the merits to weigh against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
[24] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[25] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
S White on her own behalf.
E Shoemark for Islamic Practice and Dawah Circle Inc.
Hearing details:
2021.
Canberra and Sydney (By telephone):
March 15.
Printed by authority of the Commonwealth Government Printer
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1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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