Simone Gillespie (nee Sadler) v Kin Property Pty Ltd

[2019] FWC 5503

[2019] FWC 5503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Simone Gillespie (nee Sadler)
v
Kin Property Pty Ltd
(C2019/2705)

DEPUTY PRESIDENT BOYCE SYDNEY, 26 AUGUST 2019

Application to deal with contraventions involving dismissal — where application filed out of time — where there is not a strong case on merits (liability or damages) — no exceptional circumstances — extension of time refused.

[1] On 26 April 2019, Ms Simone Gillespie (Applicant) lodged an application in the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth)(Act). The Applicant did so by mailing a Form F8 to the Commission’s Registry in Perth.

[2] The Applicant was employed by Kin Property Pty Ltd (Respondent) between 11 February 2019 and 25 March 2019. The Applicant alleges that her dismissal by the Respondent on 25 March 2019 was for reasons contrary to Part 3-2 of the Act.

[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21-day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[4] The Applicant lodged her Application 10 days outside of the statutory time limit. To be within time, the Applicant should have lodged her Application on or before 15 April 2019.

[5] On 6 August 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge her Application. I have determined that there are no exceptional circumstances that would warrant an exercise of my discretion to grant an extension of time. These are the reasons for that decision.

The employment and the dismissal

[6] On 11 February 2019, the Respondent entered into a contract of employment with the Applicant. The contract of employment stipulated that the Applicant’s role was an Assistant Project Manager, and that the Applicant was to be employed on a casual basis.

[7] On 25 March 2019, Ms Sally Smith, Manager for the Respondent, contacted the Applicant by telephone and communicated the Respondent’s intention to terminate the Applicant’s employment. This termination was confirmed by Mr Scott Field, Group General Manager for the Respondent, in an email sent to the Applicant on 27 March 2019.

Matters to be taken into account

[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[9] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[10] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty)   as follows:

“[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.”

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.

[11] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 5

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[12] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[13] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7 

[15] In summary, the Applicant submitted that the reasons for her delay in lodging her Application were that:

a) the date of dismissal was the date of Mr Scott’s email, being 27 March 2019, and so the Applicant was under the belief that she had until the 23 April to file her Application (it is worth nothing that despite the Applicant’s submission, the Applicant still filed her Application after that date);

b) there were several public holidays between the dismissal and the deadline for lodgement;

c) it took the Applicant time to “understand the reason for [her] dismissal”, that the Applicant had “a case for workplace harassment” after having been provided legal advice, and that the Applicant was required to “gather the evidence, the emails and texts” to support her case;

d) the Applicant suffered a period of severe depression and anxiety post her dismissal;

e) from 14 April 2019 the Applicant went on a holiday with her family and the location left her with limited internet access; and

f) the Applicant sent the Application by express post, not electronically, and the mailing delayed her Application being received by the Commission.

[16] In response, by way of summary, the Respondent submitted:

a) Mr Scott’s email of 27 March 2019 simply reiterated that the Applicant’s employment had been terminated (verbally) on 25 March 2019;

b) the fact that the Applicant went on a holiday with her family is not to the point, especially in light of the fact that the Applicant went on holiday before the 21-day time limit expired, and so she could have (should have) filed her Application before that date; and

c) in the alternative, and while on vacation, the Applicant could have accessed the internet from a café or similar provider of internet “hotspots”.

[17] On the evidence, I find that the Applicant was notified of her dismissal on 25 March 2019, to take effect on and from that date. Ultimately, during the hearing, the Applicant conceded that her employment was indeed terminated verbally on 25 March 2019.

[18] Further, it is not relevant whether the dismissal took effect on 25 or 27 March 2019, because the Applicant had filed her Application out of time no matter what date is sought to be relied upon.

[19] There is nothing exceptional or out of the ordinary about a person feeling anxious or depressed at having been dismissed from their employment. There are decisions of this Commission that consider the degree of that reaction to be, in certain circumstances, exceptional in their own right. 8 However, on the evidence before me, there is nothing to suggest the Applicant’s reaction was of the exceptional severity noted in those cases.

[20] Similarly, that a self-represented applicant would require time to gather the evidence, the emails and texts” and collate it in the format required for arbitration is not out of the ordinary.

[21] The fact that there were several public holidays between the dismissal and deadline is not an exceptional circumstance. As a matter of law, and stated above at paragraph [3], the deadline is only extended if the date for lodgement falls on a public holiday. That exception does not apply here.

[22] Finally, that the Applicant posted the material on 23 April 2019 (even by express post) would mean that it would not be received by the Commission on that date. Despite not being bound by the rules of evidence, 9 the Evidence Act 1995 makes a presumption that documents posted will not be delivered on the date posted.10

[23] Having considered the Applicant’s submissions individually and collectively, the reasons given for the delay weigh against any finding that there are exceptional circumstances warranting an extension of time.

Action taken by the Applicant to dispute the dismissal

[24] The Applicant submitted that she made several attempts to contest the dismissal. Namely, the Applicant contacted Mr Scott on two occasions to find out more about the reason for her dismissal, and to discuss that reason. The Applicant claimed Mr Scott “ignored” her first attempt but, on the second occasion, Mr Scott emailed the Applicant a letter of reference.

[25] The Respondent made no submissions on this point.

[26] In this case, given the length of the delay in lodging her Application, the fact that the Applicant took steps to contest her dismissal is not more than a neutral consideration by me towards any finding of exceptional circumstances.

Prejudice to the employer

[27] The Applicant submitted there is no prejudice to the employer because the filing was less than 2 weeks’ late, and such a delay would be of negligible import.

[28] The Respondent made no submissions on this point.

[29] I agree with the Applicant. There is nothing about these circumstances that, if an extension of time would be granted, would cause prejudice to the employer.

[30] However, there mere absence of prejudice to the employer is not a reason in-of-itself to grant an extension of time. 11 This criterion is thus a neutral consideration.

Merits of the application

[31] The principles stated Kyvelos v Champion Socks Pty Ltd (albeit in relation to a predecessor of the Act) still remain good law and are worth setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600]) … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …” (my emphasis)

[32] The real thrust of the Applicant’s case appears to that the Applicant made several complaints of workplace harassment prior to her dismissal and, as a result of her having made those complaints, the Respondent terminated her employment.

[33] The Respondent submitted that the reason for the dismissal was that it had received negative feedback from its clients about the Applicant’s work performance and, as such, the Respondent was not willing to allocate work to the Applicant which involved working with those complainant clients. In the absence of other work projects, the Respondent could not offer any further work to the Applicant.

[34] Although the Applicant’s case is arguable, her prospects of success appear to me to be marginal at best.

[35] The Applicant also argued that she was dismissed because of discrimination viz that she had a mental health issue. The Respondent denied having any knowledge of Applicant’s mental health issue, and so could not have terminated her because of it. If the Respondent be correct, this aspect of the Applicant’s claim has no reasonable prospects of success (i.e. an asserted reason for dismissal cannot be a reason for dismissal if a respondent has no knowledge of the reason).

[36] The Applicant’s arguable, but weak, case weighs only towards a neutral consideration in this matter.

Fairness as between the Applicant and other persons in a like position

[37] Fairness as between an applicant and other persons in a similar position will generally turn on their own facts, albeit that this consideration may relate to matters currently before the Commission, or matters previously decided by the Commission. 12

[38] There is nothing on the evidence in this matter that identifies this issue being other than a neutral consideration in this matter.

Conclusion

[39] In light of the above, I find there are no circumstances that might bear the description ‘unusual’, ‘out of the ordinary’, ‘special’ or ‘uncommon’. The circumstances of this case are not exceptional. I therefore do not exercise my discretion to grant the Applicant’s request for an extension of time in this matter.

[40] Orders to this effect will follow this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for herself.

Ms K McNamara appeared for the Respondent.

Hearing details:

Sydney, 6 August 2019. Parties appeared by videolink from Perth.

Printed by authority of the Commonwealth Government Printer

<PR711123>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

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

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2019] FWCFB 2384 at [16] – [20].

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 7   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also: Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 8   c.f.Scott v Steritech Pty Ltd[2019] FWC 2970 at [92] – [97] (Sams DP); Ott v TNT Australia Pty Ltd [2019] FWC 4701 at [36] – [37] (Sams DP).

 9   Fair Work Act 2009 s.591.

 10 s.160, Evidence Act 1995 (Cth).

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IRC 298.

 12   Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 at [41].