Sophie Cook v Allison Tiss

[2022] FWC 3142

[2022] FWC 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sophie Cook
v

Allison Tiss

(C2022/5834)

DEPUTY PRESIDENT LAKE BRISBANE, 25 NOVEMBER 2022

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

1. Ms Sophie Cook (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Ms Allison Tiss (the Respondent). The Applicant began her employment on 26 September 2021. The Applicant signed a resignation letter to the Respondent on 5 July 2022. The Applicant’s position is that she was forced to resign and that this amounted to constructive dismissal. The Respondent’s position is that the Applicant resigned, and the parting was amicable. The application was lodged with the Commission on 20 August 2022.

1. By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that she lodged her application 25 days outside the statutory time limit. To be within time, the Applicant should have lodged her application on or before 26 July 2022.

Preliminary matters

1. Present at the Hearing were two people acting as support persons for the parties. For the Applicant was the Applicant’s mother, Ms Heather Cook. For the Respondent was an executive business coach, Ms Jodie Pomeroy. I allowed both Ms Cook and Ms Pomeroy to act as McKenzie friends.

Was the application lodged within time?

1. Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

1. The Applicant lodged her application on 20 August 2022. She accepts that her application was made some 25 days outside of the 21 days required under s.366(1) of the Act.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim of the Applicant that she was dismissed.

The Applicant’s submissions

1. It was asserted that the Applicant met the 21-day statutory timeframe by filing an unfair dismissal application (initial application) within the 21-day statutory timeframe. Prior to a conference with the Respondent, the Applicant and the conciliator talked over the telephone. The conciliator identified that the Respondent was a small business. This would cause an issue for the Applicant who would not meet the minimum employment period of 12 months. Therefore, the likelihood that the initial application would proceed was unfavourable. The Applicant discontinued her initial application on 18 August 2022 and lodged a general protections application (current application) two days after on 20 August 2022.

1. The Applicant asserts the initial application was made in error as the Applicant did not comprehend that due to the minimum employment period that an unfair dismissal application would not be competent. The Applicant explained that she – along with her mother – perused the Commission’s website and filed the initial application online. Neither the Applicant nor her mother saw the minimum employment period requirement for an unfair dismissal application on the website.

1. It was contended that the Applicant was dismissed unfairly because of her sick leave. She provided medical certificates from medical practitioners for any leave taken longer than one day. On 5 July 2022, the Respondent called the Applicant in despite being on sick leave. An impromptu meeting was held between the Applicant and the Respondent where the Respondent put forward allegations regarding the Applicant’s excessive sick leave and that she was seen at Harbour Town shopping centre during her sick leave. The Respondent then provided the Applicant with a termination contract, which the Applicant signed.

1. The Applicant conceded that she did not contest her dismissal. Her only action was to file the initial application with the Commission. She is also unaware of any employees in a similar position.

1. The Applicant maintains that the current application is out of time. However, as she and her mother lack legal expertise, filing the incorrect application should be considered exceptional.

The Respondent’s submissions

1. The Respondent asserted that despite filing the initial application in time, the Applicant is still 25 days outside of the statutory timeframe for the purposes of s.366(1) of the Act.

1. It was contended that filing the incorrect application does not amount to exceptional circumstances and does not require an extension under s.366(2) of the Act.

1. The Respondent relies on Mansini DP’s (as she was known then) Decision, Rennie v Australian Leisure and Hospitality Group Pty Ltd.[1] The Respondent asserts that the reasoning used by the Deputy President should be applied in this matter. In particular, the Respondent refers to paragraph 29 where the Deputy President states:

“[29]      I have had regard to the Applicant’s mistaken belief that he could bring this claim without time limitation having commenced the other claims. Mere ignorance of the statutory time limit does not amount to an acceptable or reasonable explanation for the delay and is not an exceptional circumstance. Further, the Applicant could have obtained (and eventually did obtain) legal advice and there is substantial information on the Commission’s website about how to lodge general protections applications, including the timeframes associated with filing. For completeness, in the circumstances of this case, I consider the Respondent’s contentions about the Applicant’s prior experience in this jurisdiction to be irrelevant.”

1. The Respondent asserts that an extension would prejudice the Respondent as the current proceedings have already made the Respondent cancel numerous appointments. The Respondent has been in business for less than 12 months and needs to continue operating to remain in business.

Consideration of whether a further period should be granted

1. Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(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.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[2] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[3] the Full Bench of Fair Work Australia stated that:

“[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.”

1. For the Applicant’s application to proceed, it is necessary for her to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.

1. Given that both parties were unrepresented at the Hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.

Consideration

Reason for the delay (s.366(2)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[6] the Full Bench noted at [39]:

“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

1. 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]

1. Considering the evidence given by the parties following the end of the Applicant’s employment, I find that the following occurred. The Applicant informed her mother of the dismissal and together, they researched avenues to prosecute their claim. The Applicant lodged the initial application with the Commission. Prior to a conference, the Applicant received information from the conciliator that this application was unsatisfactory. This led the Applicant to withdraw the initial application and lodge the current application with the Commission two days later and 25 days outside the statutory timeframe.

1. The Applicant in this matter conceded during the Hearing that she and her mother did not see the minimum employment period requirement when lodging the initial application. In this regard, the Applicant was careless with her application, as a proper inspection of the website would have indicated that she does not have jurisdiction in the Commission if she did not meet the minimum employment period. The Applicant argues that as she does not have legal training, she would not have known or understood the requirements of these applications. However, legal training is not a prerequisite to prosecute claims in the Commission, only the ability to read and comprehend text on a website.

1. Further, the Applicant gave evidence that she was informed by the conciliator that she would not be successful with her initial application and should lodge her current claim. Even if I do accept this, the Applicant still delayed two days to file the current application despite the application, in essence, having the same content and material as the initial application.

1. Based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

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

1. The Applicant did not dispute her dismissal besides launching the initial unfair dismissal application.

1. This factor therefore does not weigh in favour of an extension of time.

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

1. The Respondent submitted that the current proceedings have prejudiced the Respondent and have negatively impacted her business. Yet, the Respondent did not present evidence of this. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[8] I consider this factor to be neutral.

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

1. In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

1. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[10]

1. On an initial view of the evidence provided, the merits do not appear to be strong. However, without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.366(2)(e))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[11]

1. The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

1. Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

1. I order that the application be dismissed.

DEPUTY PRESIDENT

[1] [2020] FWC 204.

[2] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[3] [2019] FWC 25.

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[5] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[6]   [2018] FWCFB 901.

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

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[10] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

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