Simona Pelle v Biologico Emilia Pty Ltd
[2023] FWC 1840
•26 JULY 2023
| [2023] FWC 1840 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Simona Pelle
v
Biologico Emilia Pty Ltd
(C2023/2088)
| DEPUTY PRESIDENT DEAN | CANBERRA, 26 JULY 2023 |
Application to deal with contraventions involving dismissal – application dismissed
On 13 April 2023, Ms Simona Pelle (Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving the dismissal from her employment with Biologico Emilia Pty Ltd (Respondent).
In her application, the Applicant says she commenced employment on 3 March 2023 and was dismissed twice, first on 21 March 2023 and then on 4 April 2023.
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
The parties are in dispute as to when the Applicant’s dismissal took effect. The Applicant claims that after her dismissal on 21 March 2023, the Respondent offered her a new employment contract however the offer was withdrawn on 4 April 2023. It is not disputed that the Applicant did not perform any work after 21 March 2023. The Respondent contends that the Applicant’s employment ended on 21 March 2023 when she was dismissed, and while there was some subsequent discussion about a different role, no such role was offered and/or accepted.
If the Applicant’s employment ceased on 21 March 2023, the application was made two days outside the statutory time limit and cannot proceed unless the Commission grants a further period for the application to be made.
Directions were issued on 13 June 2023 which included a requirement for the Applicant to file and serve submissions, witness statement(s) and any other documentary material she wished to rely upon by 27 June 2023. Nothing was filed by the Applicant. The Commission followed up with the Applicant on 29 June however no response was received, and no material was filed by the Applicant. The Applicant was subsequently advised by email on 10 July that if no material was filed by her then the application would be dealt with based on the material currently before the Commission. Again, no reply was received, and no material was filed.
Effective date of dismissal
The parties agree that the Applicant was dismissed on 21 March 2023. There is no agreement that the Applicant was subsequently offered another position from which she was dismissed on 4 April. In the absence of any evidence to support a finding that the Applicant was re-employed and then dismissed on 4 April 2023, I am satisfied that the effective date of dismissal is 21 March 2023.
Given my finding, the application was made two days outside the prescribed period. I now turn to consider whether an extension of time should be granted.
Extension of time
Section 366(2) of the Act provides:
(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.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] 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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation 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 supports a finding that there are exceptional circumstances.[3]
I am not satisfied the Applicant has provided an acceptable reason for the delay; in that she has provided no explanation at all. An absence of a reason weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
There is no evidence of any action taken by the Applicant to dispute her dismissal other than the filing of this application, which weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not consider the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
On the limited material before me, I am unable to form a view about 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
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] 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.’[6]
Neither party addressed this criterion and I therefore find this to be a neutral consideration.
Conclusion
Having considered all 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 the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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