Supipi Perera v Swinburne University of Technology
[2023] FWC 1860
•1 AUGUST 2023
| [2023] FWC 1860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Supipi Perera
v
Swinburne University of Technology
(U2023/6003)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 1 AUGUST 2023 |
Application for an unfair dismissal remedy – extension of time not granted – exceptional circumstances not established
Introduction – 4 days late
On 4 July 2023, Ms Supipi Perera made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent effective 9 June 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 30 June 2023. The application was therefore filed four days outside the 21-day period.
For the application to proceed, Ms Perera requires the Commission to grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a hearing on 27 July 2023, at which the Applicant gave evidence in support of her application.
Extension of time
Additional time can be allowed under s.394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances, I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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.[4]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]
The Applicant was employed by the Respondent on a 12-month fixed term contract that commenced on 1 August 2022, ending on 14 July 2023, as a replacement for an employee on parental leave. According to the Applicant, as the end of the fixed term came near, she hoped another position would be available. A potential 6-month contract in another team was discussed with her, but on the 8th or 9th June 2023, the Applicant was advised that that potential position was no longer available. The Applicant then immediately resigned on 9 June 2023, but contends that she was forced to do so.
The Applicant’s reason for the delay in making the application was that she was scared to go through the process alone as she found it very intimidating especially as she has a physical disability which makes walking long distances and stairs difficult. She also had a post viral COVID-19 cough which required quite a lot of bed rest, and personal obligations that she needed to attend to such as unpacking her apartment. She also thought she could find another job and just move on but was prompted to make the application after seeing a job advertisement in the same area she had been working on either the 18th or 19th June 2023.
Having considered this material, I am not persuaded that the Applicant has provided an acceptable explanation for the delay in lodging her application. Whilst the Applicant provided a letter from her doctor advising that she has presented to the clinic on multiple occasions in May 2023 due to stress-related symptoms and other issues, neither the Applicant nor the doctor suggest that the Applicant’s symptoms and issues impacted her capacity to make an application to the Commission to any significant degree. The Applicant prioritised other matters over making the application and had not considered making an application until after she saw the positions advertised on the 18th or 19th June 2023. However, the Applicant did not contact the Commission until almost two weeks later, on 4 July 2023, which was when she became aware of the 21-day time limit. It is well established that a lack of awareness of the 21-day time limit is not an acceptable explanation for a delay in making an application, and I am not satisfied that the Applicant has provided an acceptable explanation for any part of the delay.
The absence of an acceptable or reasonable explanation for the 4-day delay in lodging the application weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect:
The Applicant in resigning from her employment, clearly had the full 21-day period in which to make an application. I have treated this as a neutral consideration.
Any action taken by the person to dispute the dismissal:
The Applicant did not claim to have taken any other action to dispute the dismissal, other than lodging the application, and I have treated this as a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any particular prejudice to the Respondent. The delay period was relatively short, and it would be surprising if an organisation as large as the Respondent would suffer any prejudice because of a short delay. However, the absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion. I consider that this is a neutral consideration.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.
The Applicant contends that when she was advised that the potential new contract role that had been discussed with her was no longer available on 8 or 9 June 2023, she immediately resigned, and felt as though she was forced to resign. She felt that despite the significant contribution she had made as an employee, she was not valued or cared about, and was ‘burnt out’ having done consistent overtime with a post-viral COVID-19 cough.
The Respondent contends that the Applicant voluntarily resigned on 9 June 2023, and that this followed two earlier written indications on 22 May and 6 June 2023 that the Applicant was considering resigning. The Respondent submits that on the first two occasions the Applicant said she was looking to resign but reconsidered after speaking with her. However, in light of these indications, on the third occasion when the Applicant stated that she resigned with immediate effect, the Respondent accepted her resignation.
The Respondent contends that it did not dismiss the Applicant, and the employment ended by the voluntary resignation of the Applicant.
The purpose of the consideration here is to make a general assessment, and it is done in the context of, largely, uncontested, untested allegations that are made and it is not possible to make any final and substantive determinations. However, on the basis of the material filed my present view is that the Applicant’s case is very weak and does not point towards a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms Perera’s claim. However, cases will generally turn on their own facts.
I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time. The reason for the delay and the weak merits of the case weigh against a finding of exceptional circumstances.
I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, no additional time can be allowed for Ms Perera to make her application. This means that Ms Perera is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Ms Perera appearing for the Applicant
Mrs Kirton & Ms Eastoe appearing for the Respondent.
Hearing details:
Thursday 27 July 2023
Melbourne via Microsoft Teams
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
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