Sienna Brown v Factory X Pty. Ltd

[2023] FWC 2924

[2023] FWC 2924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sienna Brown
v

Factory X Pty. Ltd

(C2023/4849)

COMMISSIONER P RYAN SYDNEY, 8 NOVEMBER 2023

Application to deal with contraventions involving dismissal

Introduction

1. This decision concerns an application by Ms Sienna Brown (Brown/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

1. In the Application, Ms Brown states that her employment with Factory X Pty Ltd (Respondent) commenced in November 2020 and that her dismissal took effect on 7 July 2023. The Application was lodged on 11 August 2023.

1. Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 28 July 2023. The Application was therefore filed 14 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.366(2).

1. The Respondent opposes this request and objects to the Application on the basis that it did not dismiss the Applicant.

1. In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.

1. The matter was heard via Microsoft Teams on 6 November 2023. The Applicant was self-represented. The Respondent was represented by its human resources practitioner, Ms R Gibbs.

1. For the reasons that follow, I decline an extension of time under s.366(2).

Relevant Background

1. On 18 November 2023, the Applicant commenced employment with the Respondent as a retail sales assistant.[1]

1. On 7 July 2023, the Applicant resigned from her employment with the Respondent.[2] The Applicant contends that she was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent relating to an underpayment of entitlements and that she was subject to unlawful discrimination. The Respondent disputes this and contends that the Applicant resigned of her own volition.

1. The Commission’s records show that the Applicant lodged a s.365 application through the Commission’s Online Lodgment Service (OLS) on 4 August 2023. This application did not contain any information beyond the Applicant’s name and contact details and was assigned matter number C2023/4723 (4 August Application).

1. On 11 August 2023, the Applicant lodged the Application through the Commission’s OLS which was assigned matter number C2023/4849. The Application did not include the details of the Respondent or a response to questions 3.2 and 3.3 which seek details of the section(s) of the FW Act which the employer (allegedly) contravened and an explanation of how the employer’s actions contravened those sections.

1. On 25 August 2023, the Commission closed the file for the 4 August Application (C2023/4723).

1. On 28 August 2023, and after being made aware that the Application was incomplete, the Applicant lodged a further s.365 application through the Commission’s OLS. This application was assigned matter number C2023/5231 (28 August Application).

1. The 28 August Application was set out in the same terms as the Application and did not contain the details of the Respondent.

1. On 21 September 2023, the Applicant discontinued the 28 August Application (C2023/5231) and submitted an application in this matter (C2023/4849) which included the details of the Respondent, as well as responses to questions 3.2 and 3.3.

What date was ‘an application’ made?

1. As observed by the Full Bench in Matthew Duncan Hatch v Woodside Energy Ltd[3]. there are two temporal events in s.366(1)(a) of the FW Act: the date the dismissal took effect and the date that an application is ‘made’.

1. As set out earlier, although the Application was made on 11 August 2023, the Commission’s records show that the Applicant lodged a blank application form on 4 August 2023 that did not contain any information beyond the Applicant’s name and contact details, other than to identify that it was made pursuant to s.365 of the FW Act.

2. The Applicant stated that she attached the wrong version of the application form when lodging the 4 August Application.

1. This raises the issue of whether the 4 August Application was an application ‘made’ for the purposes of s.366.

1. The Commission has previously found that an application has been made for the purposes of s.366 despite the lodging of an incorrect form, blank form, partially completed form, or a form in an unreadable format.[4]

1. There is no record that the 4 August Application was withdrawn or discontinued by the Applicant, or that it was dismissed pursuant to an order of the Commission. While it is not entirely clear, it appears that upon the filing of the Application on 11 August 2023, the two Form F8 applications filed by the Applicant (4 and 11 August) were consolidated and allocated a new matter number: C2023/4849.

1. Having regard to the matters set out above and the relevant authorities referred to in paragraph [20], I am satisfied, and will proceed on the basis, that the Application is an application that was ‘made’ for the purposes of s.366 of the FW Act on 4 August 2023. Furthermore, and to the extent it is necessary, I waive any irregularity in the form or manner in which it was made.[5]

1. This means the Application was made 28 days after the date the alleged dismissal took effect, and 7 days outside the 21 day period. Accordingly, the Applicant will require an extension of time.

Exceptional Circumstances

1. The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.[6] 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.[7]

1. The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 366(2) 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)   any action taken by the person to dispute the dismissal;

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

(d)   the merits of the application; and

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

1. 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.

1. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[8]

1. I now consider these matters in the context of the Application.

s.366(2)(a) – Reason for the delay

1. The FW 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 an applicant’s favour, however all of the circumstances must be considered.[9]

1. A form F8 application includes the following question:

1.4 Are you making this application within 21 calendar days of your dismissal taking effect?

[ ] Yes
[ ] No

For information about the timeframe for lodgment of general protections applications involving dismissal, see section 366(1) of the Fair Work Act 2009.

If you answered No – Explain the reason for the delay, including any steps you have taken to dispute the dismissal or any other reason you think the Commission should take into account in considering whether to accept your application out of time.

1. The Form F8 lodged on 4 August 2023 did not contain any response to question 1.4.

1. In the Form F8 lodged on 11 August 2023, the Applicant acknowledged the Application was not made within 21 days of her dismissal taking effect and provided the following explanation:

I have messed up this application twice by accident so it’s no longer within 21 days.

1. In her evidence before the Commission, the Applicant stated that following her resignation, she did not wish to pursue any matter against the Respondent. However, after encouragement from her father, the Applicant changed her mind the day before she lodged the 4 August Application.

1. The Applicant stated this was the first time she had made an application to the Commission and was not aware of the 21 day time limit until she “looked into the matter” on 3 August 2023.

1. The Applicant stated that she read on the Commission’s website that an extension of time may be granted and that she was “hopeful”.

Reason for the delay – Consideration

1. The sole reason for the delay advanced by the Applicant was that after having made a decision not to pursue an application, she changed her mind on 3 August 2023.

1. I do not consider an applicant simply changing their mind to commence proceedings beyond the statutory time limit to be an acceptable or reasonable explanation for delay.

1. While the Applicant stated that she only became aware of the 21 day time limit (which ended on 28 July 2023) on 3 August 2023, it is well established that lack of knowledge is not an exceptional circumstance.[10]

1. Accordingly, I do not consider the Applicant’s explanation for the delay to be an acceptable or reasonable explanation. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) – Action taken to dispute the dismissal

1. Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[11]

1. However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[12]

1. It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making of the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

s.366(2)(c) – Prejudice to the employer

1. Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

1. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

s.366(2)(d) – Merits of the Application

1. The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.

1. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

s.366(2)(e) – Fairness as between the person and other persons in a similar position

1. 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

1. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[13] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

1. 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.366(2).

1. Accordingly, the Application must be dismissed.

COMMISSIONER

Hearing details:

2023.
Sydney (via Microsoft Teams video-link):
6 November.

[1] Exhibit 5 (Hearing Book at P.152).

[2] Exhibit 4 (Hearing Book at p.144); Transcript dated 6 November 2023.

[3] [2023] FWCFB 51 (Hatch) at [37]-[39].

[4] Arch v Insurance Australia Group Services Pty Limited[2020] FWCFB 601 at [30]-[34]; Hatch at [48]; Luke Alexander Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore[2023] FWCFB 69 at [39]; Amy Brunskill v Federation Children Nth Geelong Pty Ltd[2023] FWC 1756 at [27]-[36].

[5] See s.586(b) of the FW Act.

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].

[7] Ibid.

[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[10] Nulty at [14].

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[12] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].

[13] See paragraph [28] above.

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