Stephenie Exton v Exton's Real Estate Pty Ltd
[2024] FWC 1178
•20 MAY 2024
| [2024] FWC 1178 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Stephenie Exton
v
Exton’s Real Estate Pty Ltd
(U2023/9064)
| COMMISSIONER TRAN | MELBOURNE, 20 MAY 2024 |
Application for an unfair dismissal remedy – extension of time – application dismissed
Ms Stephanie Exton (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that Exton's Real Estate Pty Ltd (the Employer) had terminated her employment.
The Employer is a family real estate business, and the Applicant is a daughter of the Employer's owners. The Applicant held the role of Director, Officer in Effective Control and Sales Agent.
The Employer objected to the Applicant's unfair dismissal application on the grounds that it was not made within 21 days after the dismissal of the Applicant from her employment. Before deciding whether the dismissal was unfair, the Commission must first be satisfied that an application was made within time or allow a further period of time under s 394.
The parties did not agree about when the dismissal took effect. The Applicant alleges that the dismissal took effect on 1 September 2023. However, the Applicant also states that she does not know the exact date and she chose 1 September 2023 as this was when the Employer ignored an email from her. If this was the date that the dismissal took effect, the application was made within the statutory period of 21 days.
The Employer says that the Applicant ceased full-time employment in 2021 (but does not specify a date) and therefore her application made on 19 September 2023 was significantly after the end of the statutory period. In the alternative, the Employer says that the employment relationship finally ended on 28 February 2023. If this was the date that the dismissal took effect, the application was made 182 days after the end of the statutory period.
Having considered the evidence and submissions of the parties and for reasons set out below, I formed the view that the dismissal took effect on 17 March 2023. So, the application was made after the end of the statutory period. I have considered all the factors in s 394(3) of the Act and I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. The application is dismissed and my detailed reasons follow.
Background
The Applicant commenced employment with the Employer around January 2013 as Director and Officer in Effective Control of the Employer.
In 2021, the Applicant resigned from the directorship and her employment with the Employer, for reasons that are not relevant to this matter.
The Applicant says she recommenced employment in October 2021 as Director and Officer in Effective Control. The Employer says that the Applicant never resumed full-time employment but only completed casual, promotional or social media work. The Employer also says that the Applicant had control of company bank accounts and paid herself wages until about 28 February 2023 when it says that the employment and personal relationships broke down significantly and the Applicant was removed from all company systems.
I obtained a current and historical company extract which reveals that the Applicant last ceased to be a director of the Employer on 7 January 2021 and that after this time she did not resume directorship of the Employer at all.
Representation
The Applicant appeared on her own behalf.
The Employer sought permission to be represented by Ms Kaur of Employsure Law. The grounds for seeking permission were:
- that it would allow the matter to be dealt with more efficiently taking into account the factual and emotional complexities of the matter;
- that the Employer could not effectively represent itself given that it did not have any internal HR experience or resources and due to the personal relationships involved; and
- that the jurisdictional objection was a technical issue that the Employer cannot effectively represent itself on as it did not have the legal capabilities.
The Applicant objected to the Employer’s representation on the grounds that she was not in a position to also access representation due to the Employer allegedly owing her a substantial amount of money and that it would be unfair for the Employer to have the advantage of legal representation when she could not have the same opportunity. The Applicant did not agree that the Employer was unable to effectively represent itself as it managed a company and had responsibility for staff.
I granted permission for the Employer to be represented in this matter. I was persuaded by the submissions that the Employer would be unable to effectively represent itself. I have sympathy for the Applicant’s position that it would be unfair on her to allow the Employer to be represented, but I note the role of the Commission to assist self-represented parties and the ethical obligations incumbent upon lawyers to not take advantage of their role. While the jurisdictional question of whether the matter was filed within time is not necessarily complex, I was persuaded by the Employer’s submissions that there were complex factual issues and that the personal relationships added a further degree of complexity to the matter such that legal representation could assist me to deal with the matter more efficiently.
Procedural History
The procedural history of this matter is involved.
The matter was initially listed for determinative conference/hearing on 7 December 2023 and directions were issued for the filing of materials prior to that time. On multiple occasions, the Applicant filed her materials late. To provide procedural fairness to the Employer, directions were amended and the initial determination date was adjourned to 12 December 2023. The Applicant filed her witness statements late on the day prior to the hearing.
My Chambers compiled a digital hearing book with the materials received at the time, being the Employer’s materials and the Applicant’s application form and documents filed at the time of the application.
I formed the view that a hearing was the most effective and efficient way to resolve the matter due to the contested facts and the number of witnesses each party indicated that they would call. The hearing was conducted via Teams due to the location of the parties.
The matter was part heard on 12 December 2023, and then adjourned to 25 January 2024. The matter was again adjourned to 31 January 2024 due to the Applicant being delayed when returning from overseas travel.
Around this time, Ms Alexandra Exton, the Applicant’s sister and a witness in the matter, obtained a Family Violence Interim Intervention Order (IVO) against the Applicant. The Applicant sought, and the Employer consented to, an adjournment of the matter until a date after 6 March 2024, which was a date for a hearing related to the IVO. The matter was again adjourned to 20 March 2024.
On 14 March 2024, the Employer applied for me to permanently stay the matter due to the Applicant’s breach of the Employer’s legal professional privilege. I dismissed that application, and my detailed reasons are below.
On 18 March 2024, the Employer informed me that the Applicant had obtained an IVO against Ms Alexandra Exton. The hearing relating to that IVO was listed for 1 May 2024. The Employer expressly did not seek an adjournment of these proceedings.
The hearing continued on 20 March 2024 and concluded on 21 March 2024.
All hearings were held via Teams.
399A Dismissal Application
At the commencement of the first day of hearing on 12 December 2023, the Employer made an application under s 399A for me to dismiss the matter due to non-compliance. The Act allows me to dismiss the matter on application by a respondent where I am satisfied that an application has unreasonably failed to comply with a direction or order of the Commission, among other matters.
The Employer’s grounds for their application for me to dismiss was that the Applicant had unreasonably failed to comply with my directions due to filing her materials late. The Employer asked me to exercise my discretion as the late filing of materials caused prejudice and was a demonstration of the Applicant’s lack of regard for the Commission.
The Applicant’s reasons for not complying with my directions was that it was extremely difficult for her to do so as an unrepresented party given her mental health and the emotional toll on her of the personal relationships in this matter. In addition, the Applicant indicated that it has been difficult for her to obtain statements from witnesses including because one witness was not located in Australia. The Applicant also said that it would be unjust if the case was not heard.
The Applicant did not comply with the timeframe set in my directions. The Applicant did not file her primary materials at all however I granted a brief extension to allow her to do so and provided the Employer with an equivalent period of time within which to file its response materials. The Applicant sought extensions of time to file her reply materials which I granted. Despite that she did not comply with that deadline. I was persuaded by and I understand that the preparation of materials for an unrepresented party can be difficult. In addition, this matter has the added challenge of the personal relationships. The Applicant’s grounds provide some reasons although ultimately it is her matter, and it is she who has commenced it and she who must prosecute it.
Even if I could be satisfied that the Applicant unreasonably failed to comply with my directions, I would not exercise my discretion to dismiss this matter. The Full Bench in Lockyer v Cox,[1] said that a cautious approach should be taken to dismissing applications for substantive relief. Ultimately, the Applicant has prosecuted her matter despite multiple delays. I declined to dismiss the matter.
Stay Application
On 14 March 2024, the Employer made an application that the matter be permanently stayed under s 589 of the Act on the grounds that the Applicant had accessed the Employer’s CCTV system and obtained information in breach of the Employer’s legal professional privilege which it had not waived. The stay application was supported by a witness statement of Ms Alexandra Exton.
The Employer submitted that legal professional privilege is a rule of substantive law and an important common law right and immunity. The Employer submitted that the privilege ensures that the legal system functions properly as it allows a client and lawyer to communicate freely. The Employer also referred to the privilege as sacrosanct, requiring express waiver by the person who holds the privilege or express removal by Parliament in order to be interfered with. The Employer also submitted there was prejudice resulting from the Applicant’s unauthorised access to its CCTV systems.
The Applicant objected to the application to permanently stay her matter on the grounds that the Employer did not provide any evidence in support of its assertion that the Applicant had accessed legally professionally privileged information.
Section 589 of the Act provides me with powers to make procedural and interim decisions:
“Procedural and interim decisions
(1)The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2)The FWC may make an interim decision in relation to a matter before it.
(3)The FWC may make a decision under this section:
(a)on its own initiative; or
(b)on application.
(4)This section does not limit the FWC's power to make decisions.”
Previous decisions of this Commission[2] have said that the power is sufficiently broad so as to encompass a stay. The power, however, is discretionary and I must have regard to the statutory framework and all the relevant circumstances in a matter about whether or not to exercise that power.
The statutory framework generally includes an obligation on the Commission to perform our functions and exercise our powers in a manner that is fair, just and quick, and which also takes into account equity, good conscience and the merits of the matter. The framework also involves that a party is entitled to have their matter dealt with by the Commission in the ordinary course of our business and a stay application necessarily requires proper grounds and justification.[3]
This matter is an application for an unfair dismissal remedy in which the Employer raised the jurisdictional objection that the application had been made outside the statutory timeframe and I must, therefore, first determine whether the application was filed within time or whether to grant an extension of time to file the application. That is relevant because the timeliness of applications, especially in relation to applications for unfair dismissal remedy, is a strong policy reason for ensuring the matters are dealt with quickly while still ensuring the parties are entitled to procedural fairness and natural justice.
The grounds for the stay application is a breach of legal professional privilege, broadly speaking. I was not taken to particular parts of the Applicant’s evidence that the Employer says were obtained by a breach of its legal professional privilege, nor documents over which the Employer claims legal professional privilege. Rather, the Employer asserts that the entirety of the material provided by the Applicant is – in the words of the Employer’s representative – “coloured by the potential breach” of the legal professional privilege.
I agree that legal professional privilege is a fundamental rule of our justice system. However, legal professional privilege cannot operate as a blanket objection to the entirety of evidence or the entirety of proceedings.[4] It attaches to specific information, material and documents.[5] It is used or can be used to object to a specific question,[6] to refuse to disclose information or to refuse to answer notices to produce during investigations or before a court and, of course, before this Commission.
I therefore decline to exercise my powers to stay this matter. I decline to exercise my powers to stay this matter permanently as I have not been taken to any previous cases of the Commission where a permanent stay has been granted. I decline to exercise my powers to stay temporarily on the grounds that this matter has already been significantly delayed.
The Employer’s rights and ability to claim legal professional privilege is not affected by my decision to decline the stay application. The Employer remains entitled to make any objection that it needs to make during the substantive proceedings where it wishes to claim legal professional privilege in respect of information or evidence that the Applicant wishes to adduce.
Other procedural matters
The Applicant filed and served statements of two further witnesses, being Stephanie Gorman and Thomas Orchard. Neither Ms Gorman nor Mr Orchard attended the hearing to give their evidence. The Employer objected to the tendering of the statements, and I did not receive them into evidence.
Similarly, the Employer filed and served a statement of Debra Seccull, but Ms Seccull did not attend the hearing to give her evidence. The Applicant objected to the tendering of this statement, and I did not receive it into evidence.
As Ms Alexandra Exton had an IVO against the Applicant, and the Applicant had an IVO against Ms Alexandra Exton, I sought the parties’ verification that they would not consider the hearing via Teams to be a breach of the broad conditions of their respective IVOs, and particularly the meaning of “communication” in those conditions (which were the same for both IVOs). While Ms Alexandra Exton was prepared to consider a hearing via Teams and communication via her representative to not be a breach of the conditions of the Applicant’s IVO against her, the Applicant was not prepared to concede the same. In order to ensure that Ms Alexandra Exton did not breach the terms of the Applicant’s IVO against her by participating in this hearing, I made procedural arrangements including that Ms Alexandra Exton would remain off-camera until she was required to give evidence and that the Applicant’s cross examination of Ms Alexandra Exton was conducted only through me.
Throughout both parties’ evidence, comments and assertions were made by each of the Exton family members (Ms Stephenie Exton – the Applicant, Ms Alexandra Exton – the Applicant’s sister and Ms Tanya Exton – the Applicant’s mother) relating to various disputes (financial, personal and commercial) among the Applicant, the Employer and members of the Exton family. Each Exton family member said much that was irrelevant, self-serving and inflammatory. This was an emotive and personal matter for all.
I did not find any of the Exton family members who gave evidence to be impressive however I did not form a view that any of them were dishonest. In my findings of fact, I considered whether there was commonality of information, consistency in the timeline and the support of the limited documentary evidence. I also informed myself under s 590 of the Act by conducting company searches with the Australian Securities and Investments Commission (ASIC) and Australian Business Name searches.
I deal only with what is relevant to the matter before me – whether the Applicant’s application for unfair dismissal remedy was made within time or whether an extension of time should be granted. I make no comment or findings in relation to any of the other matters and will refer to them only in general terms as is necessary for my reasons.
The Applicant’s case
The Applicant gave evidence on her own behalf. Ms Sally Thomas and Mr Jay Studd also gave evidence in support of the Applicant.
The Applicant’s case is that she continued working up until September 2023.
The Applicant argued that she had never received any notice of termination from the Employer in circumstances where the Employer was familiar with dismissal processes. The Applicant also argued that there had been prior occasions during her employment dating back to 2013 when she worked for significant periods of time without being paid.
The Applicant made assertions that the Employer or members of her family owed money to her. The Applicant stated that during her employment she attempted to repay herself monies the Employer or members of her family owed to her, and that members of her family had engaged in financial abuse. The Applicant says that the last of these occasions occurred in early 2023. The Applicant says that the Employer owed her a large sum of money and that her sister, Ms Alexandra Exton, also owed her a large sum of money. The Applicant says she then told her parents that she would engage a solicitor as she wanted to be paid the money that she was owed. The relationship deteriorated at that point.
The Applicant gave evidence that a meeting was held on 16 March 2023 during which she addressed the issue about the money owed to her. The Applicant gave evidence that on 17 March 2023, her sister and her father attended the bank and locked her out of the company’s bank accounts.
However, the Applicant says that the Employer expected her to attend appointments and deal with clients, and that she did so up until September 2023. The Applicant says that she sold property for the Employer between February 2023 and September 2023.
Examples of work that the Applicant did was the recovery of a commission owed on the sale of the property that settled in early 2023.
Ms Sally Thomas gave evidence on behalf of the Applicant. Ms Thomas was employed by the Employer in two periods, the most recent of which ended around January 2023. She gave evidence that after March 2023, the Applicant informed her of work relating to selling property, such as preparing videos and arranging property inspections. Ms Thomas did not provide any evidence about any work that the Applicant may have performed for the Employer between April and September 2023. Ms Thomas gave evidence that she lived next door to a sales listing that included the Applicant’s name, and that the name remained on the board up until the date of the hearing.
Mr Jay Studd gave evidence on behalf of the Applicant. Mr Studd is in a relationship with the Applicant. Mr Studd’s evidence was that he witnessed her working for the employer over the last 12 months including weekends and after hours. In response to my questions Mr Studd indicated that what he witnessed was the Applicant having telephone conversations with clients.
The Applicant says that she finally became aware that her employment had ended when she learned that she had been removed as Officer in Effective Control of the Employer around 1 September 2023. The Applicant then wrote to the Employer to clarify the status of her employment. As she did not get a response from the Employer, she then applied for an unfair dismissal remedy.
The Employer’s case
Ms Alexandra Exton, Ms Tanya Exton and Ms Hayley Berry gave evidence on behalf of the Employer.
The Employer’s case is that the Applicant resigned from her employment in 2021 when she stopped being a director of the Employer’s company. The Employer’s primary case is that the Applicant’s employment ended in 2021 and that she did not resume permanent or regular employment after this time.
However, the Employer says that the Applicant had access to its financial accounts and paid herself wages whenever she pleased.
The Employer’s alternative case is that the Applicant’s employment ended in March 2023 as the Employer locked the Applicant out of the Employer’s accounts and that any work she did after this time was not authorised or on behalf of the Employer.
Ms Alexandra Exton is a director of the Employer and began working with the Employer in 2016. She gave evidence that around late April 2023, she arranged for the Applicant to cease having access to the email address connected with the Employer, and that she herself had access to and control of the Applicant’s emails from that time. Ms Alexandra Exton also gave evidence relating to a meeting in late February or March 2023 which was said to end the employment relationship. Ms Alexandra Exton described this meeting as a family meeting that was very abrupt.
Ms Tanya Exton is owner and director of the Employer. Ms Tanya Exton gave evidence that the meeting was in late February or March, and perhaps as late as April 2023, it related to family matters, not employment matters, and was extremely volatile. Ms Tanya Exton gave evidence that the Applicant ceased all contact with the Employer and her family following this meeting.
Ms Alexandra Exton gave evidence that the work the Applicant alleged that she performed on behalf of the Employer was not authorised, nor that the Employer was aware of it until the resolution of a dispute relating to a client or former client’s debt.
The Employer also argued that the Applicant started a company that mimicked the Employer after March 2023, and any work performed by the Applicant was on behalf of this company and not of the Employer.
Ms Hayley Maree Berry gave evidence on behalf of the Employer. Ms Berry worked in reception and administration for the Employer from April 2022 until mid-August 2023. Under cross examination Ms Berry agreed that her employment may have started after 4 May 2022. Ms Berry worked part-time for 3 or 4 days a week. Ms Berry gave evidence that she had minimal contact with the Applicant and last saw her at work in March 2023. Ms Berry gave evidence that she generally took instructions from Ms Alexandra Exton. Under cross examination Ms Berry was taken to a text message exchange between the Applicant and herself on 7 June 2023 about a final inspection on a property. Ms Berry gave evidence that she then followed up with Ms Alexandra Exton as she did not normally receive instruction from the Applicant. It was also around this time that Ms Berry was informed that the Applicant no longer worked for the Employer, although she recollected that she may have been told in March but was confused.
When did the dismissal take effect?
It was not in dispute between the parties that the Applicant ceased employment in 2021 when she ceased to be a director of the Employer. I confirmed this information by conducting an ASIC current and historical company search, which indicated that the Applicant (Stephenie Exton) last ceased being a director on 7 January 2021.
While the Employer’s primary case was that the Applicant’s employment ended in 2021 and did not resume on a permanent full capacity basis, it directed its arguments and evidence towards an ending of the employment in late February or early March 2023.
I find that, if the Applicant’s employment with the Employer continued after she resigned from the directorship in 2021, then it did conclusively end in March 2023, when the Employer prevented her from accessing its financial accounts. All witnesses who gave evidence about a particular meeting that occurred in late February or March but may have occurred as late as April 2023 agreed that the meeting itself was the final event that destroyed the employment and personal relationships. It was also not in dispute that the Employer prevented the Applicant from accessing the Employer’s financial accounts in March 2023. While it is difficult to pinpoint a specific date, I find that the dismissal took effect on 17 March 2023, being the date that the Applicant says the Employer locked her out of the company’s bank accounts. This date also accords with the timeline in respect of the meeting. Only Ms Tanya Exton thought the meeting might have occurred as late as April 2023 and she was visibly distressed and confused during the giving of her evidence.
As I found that the Applicant’s employment ended on 17 March 2023, her application lodged 19 September 2023 is outside the 21-day statutory time period by 165 days. I will now consider whether there are exceptional circumstances such as to grant an extension of time under s 394(3).
Relevant Law
Section 394(2) of the Act provides:
“(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”
Section 394(3) of the Act provides:
“[t]he FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.”
The legislation is clear that the power to extend time is discretionary but may only be exercised if first satisfied that there are exceptional circumstances.
Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[7] establishes the following:
- the Commission must consider all of the circumstances;
- the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
- but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
- a single event can be exceptional; and
- a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional.
The conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matter, assigning appropriate weight to each.[8]
Factors to take into account
394(3)(a) – the reason for the delay
The Full Bench in Ozsoy v Monstamac Industries Pty Ltd[9] said that an applicant needs to provide a credible reason for the whole of the period that the application was delayed, and that the delay is the period beyond the specified 21 days. In this matter, that period is 165 days.
The Applicant’s evidence and submission is that the reason for the delay in lodging her application was that she was not aware of the dismissal until the Employer’s failure to respond to her correspondence in September 2023. I deal with this under the factor relating to whether the person first became aware of the dismissal after it had taken effect.
The Applicant also submitted that the reason for the delay was the unusual circumstances of her employment in which there were multiple periods when she continued to work without being paid due to family relationships and financial disputes. I accept, and there was significant evidence of, the difficult and intertwined employment and familial relationships in this matter. I do not however accept that this was a satisfactory reason for the whole period of the delay between April and September 2023. The Applicant demonstrated capacity to challenge the decisions made by her family members where she did not agree with them during this period, and she also instructed solicitors to assist her as well as instructing solicitors in relation to a debt recovery matter.
The Applicant further submitted that her mental health, which was greatly affected by her treatment and the circumstance that her employment relationship was interrelated with her family relationships, is a factor to be taken into consideration in relation to the reason for the delay. The Applicant provided no medical evidence and no evidence about how the effect on her mental health prevented her from lodging the unfair dismissal application. The evidence provided by the Applicant indicated that she remained capable of seeking advice and instructing solicitors during the period from March 2023 to September 2023.
I consider that this factor does not weigh in favour of extending time.
394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
As detailed in paragraph [68], I have found that the Applicant’s dismissal took effect on 17 March 2023 when the Employer prevented her from accessing its financial accounts. The Applicant gave evidence that she was aware that she was unable to access the Employer’s financial accounts around this time as she spoke with her father about the matter.
I consider that this factor does not weigh in favour of extending time.
394(3)(c) – any action taken by the person to dispute the dismissal
The Applicant initially took action to challenge being prevented from accessing the Employer’s financial accounts. However, there was no evidence from the Applicant of any action that she took from April until September to dispute the dismissal.
I consider that this factor does not weigh in favour of extending time.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The delay was 165 days. This is a significant period of time.
The Employer in its submissions stated that the delay has caused it to suffer significant prejudice and to spend substantial time and money to defend the application. The Employer did not make any submissions about how the delay may adversely affect its ability to present its case.
The Applicant did not make any submissions about this factor.
Responsibility for the delay since the lodging of the application must be shared equally between the parties in relation to how this application interacted with other matters between the parties. However, if this matter proceeds to hearing (if the extension of time was granted), it will be more than 12 months since the dismissal occurred.
I consider that this factor does not weigh in favour of extending time.
394(3)(e) – the merits of the application
While I have found that the dismissal occurred on 17 March 2023, there are other issues that may arise in this matter that relate to whether the Commission has jurisdiction to hear the application. First, it is not clear that the Applicant, as director and Officer in Effective Control, was an employee. Second, if the Applicant was an employee, there is a question about whether her period of employment meets the minimum required under s 384 of the Act, particularly with respect to whether there were periods of casual employment and whether those periods were on a regular and systematic basis.
However, the facts of this matter, particularly regarding the breakdown in the employment and familial relationships, remain contested. Both the Applicant and the Employer have apparent cases. My assessment of the merits for this extension of time matter is primarily whether the Applicant has an arguable case.
I consider this factor neutral in my determination of this matter.
394(3)(f) – fairness as between the person and other persons in a similar position
The circumstances of this matter appear highly unusual. While the Employer made some submissions under this factor, I was not taken to any relevant cases. The Applicant did not make any submissions relevant to this factor.
I consider this factor neutral in my determination of this matter.
Conclusion & Order
I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time.
I therefore dismiss the Applicant’s application for an unfair dismissal remedy and order accordingly.
COMMISSIONER
Appearances:
S Exton for herself.
J Kaur of Employsure Law for the Respondent.
Hearing details:
12 December 2023
20 & 21 March 2024.
Video via Microsoft Teams.
[1] [2021] FWCFB 875 at [30] and [58].
[2] Bowker & ors v DP World Melbourne Limited and others [2014] FWC 7326 at [4].
[3] Jayasundera v Electricity Networkers Corporation t/a Western Power[2022] FWCFB 149 at [44] – [45].
[4] NCA v S (1991) 100 ALR 151 at 159-160.
[5] Dee v Dall [191] SASR 167 at 177.
[6] Spokes v Grosvenor [1897] 2 QB 124 at 132; Warman v Envirotech (1986) 11 FCR 67 ALR 253 at 265-266.
[7] [2011] FWAFB 975 at [13].
[8] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[9] [2014] FWCFB 2149 at [31].
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