Sue Thornton v Twentieth Super Pace Nominees Pty Ltd T/A Sct Logistics

[2020] FWC 5127

[2020] FWC 5127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sue Thornton
v
Twentieth Super Pace Nominees Pty Ltd T/A Sct Logistics
(U2020/10665)

COMMISSIONER JOHNS SYDNEY, 23 SEPTEMBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Sue Thornton (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Twentieth Super Pace Nominees Pty Ltd (Respondent) was terminated with effect from 10 July 2020. The unfair dismissal application (Application) was lodged on 5 August 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 31 July 2020. The Application was therefore filed 5 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3). The Respondent opposes this request.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application 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. 1 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[6] Section 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

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

(e) the merits of the application; and

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

[7] 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. I now consider these matters in the context of the Application.

Reason for the delay

[8] The 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 the applicant’s favour, however all of the circumstances must be considered. 3

[9] The Applicant cited several matters as reasons for the delay in lodging the Application. In her Application she wrote,

“health issues, stress, COVID, unaware had set time to lodge a claim.”

[10] These reasons were repeated by the Applicant in her correspondence to the Commission dated 28 August 2020.

[11] The Applicant did not provide any evidence to support the contentions made by her in her Application. In the hearing before me yesterday I further explored each reason with the Applicant. Having done so, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay.

[12] In so far as health issues (including stress) was given as a reason for the delay is not supported by any medical evidence. While I accept that the Applicant may have been stressed by the impact of the termination of her employment during some or all of the period of the delay, absent any medical evidence detailing the impact the illness/stress had on the Applicant’s capacity to lodge the Application, I do not accept the explanation as preventing the Applicant from lodging the Application on time or at an time earlier than the date on which this Application was lodged. The Applicant’s self-diagnosis and treatment is not sufficient.

[13] In so far as “COVID” was given as a reason for the delay, the Applicant explained that she was aware that the pandemic was causing delay in the provision of government services. She pointed to Centrelink as an example. However, when pressed further, the Applicant conceded that she had not attempted to the contact the Fair Work Commission.

[14] Finally, in so far as the Applicant contended that she was not aware of the 21-day timeframe, it has long been established that Ignorance of the timeframe for lodgement is not an exceptional circumstance.

[15] The absence of an acceptable explanation weighs against the Applicant and a conclusion that there are exceptional circumstances. 4

Whether the person first became aware of the dismissal after it had taken effect

[16] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against the Applicant and a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[17] The Applicant did not contest her dismissal until she filed the present application out of time. Consequently, this circumstance weighs against the Applicant and a conclusion that there are exceptional circumstances.

Prejudice to the employer

[18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. The Respondent submitted that prejudice was a neutral factor. I agree.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, 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. At a substantive hearing the question to be determined would centre around the genuineness of the redundancy and, if the redundancy was found not to be genuine, the overall fairness of the dismissal.
[20] It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence.

[21] However, for present purposes I am satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[22] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her Application.

Fairness as between the person and other persons in a similar position

[23] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[24] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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 394(3). Accordingly, the Application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

S Thornton, Applicant.
P Williamson for the respondent.

Hearing details:

2020
Sydney (via video)
September 17.

Printed by authority of the Commonwealth Government Printer

<PR723037>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distlributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 14, [(2011) 203 IR 1].