Susan Moor v Jakana Services Pty Ltd T/A Glandore Private Kindergarten & Child Care Centre

[2014] FWC 3765

[2014] FWC 3765

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Moor
v
Jakana Services Pty Ltd T/A Glandore Private Kindergarten & Child Care Centre
(U2014/7145)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 JUNE 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 4 June 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

On 11 May 2014 Mrs Moor lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Jakana Services Pty Ltd T/A Glandore Private Kindergarten and Child Care Centre (the Respondent).

[2] In that application, Mrs Moor advised that her dismissal took effect on 14 April 2014. She advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept her application out of time.

“The first 11 days I wasn’t aware that I was able to make an unfair dismissal complaint. I was advised that the way it happen was very unfair, I have been trying to find the right section on the website after 2 days I decided to phone, I was given the wrong directions and the man I spoke to didn’t seem to want to help me so I tried again byself for another 1 day got very confussed phone again the man said I needed the F9 Form I printed it out, it seem to be the wrong one so I phoned again and didn’t get through after waiting 1 hour. So the next day I tried again and got through to a great lady who suggested I should phone the Womens Advisory Service, as it is closed on Tuesday’s I phoned on the Wednesday and finally was told someone would phone me tomorrow they didn’t I phoned them, Sonya phoned me friday at 11.15am. She told me to fill out this form F2 and hope I get a good result. She was the only one to give me the right easy directions.” 1 (sic)

[3] The application was referred to me for consideration. On 13 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 4 June 2014. Mrs Moor was required to provide a witness statement and a copy of any document relied upon, by 28 May 2014.

[4] An Employer’s Response (Form F3) to the application was received on 30 May 2014. That response asserted that the Respondent objected to an extension of time and objected to the application proceeding on the basis that Mrs Moor had not been dismissed.

[5] On 2 June 2014 advice of Mrs Moor’s position with respect to the extension of time issue was received. In this advice Mrs Moor advised that she considered that she had been constructively dismissed. With respect to the delay in lodging the application she advised:

“21 day time limit

1. Following my dismissal I became unwell and stressed. My health deteriorated and I saw a doctor on 30 April 2014.

2. I did not know that I had the power to contest the termination of my employment. I thought that, because I had been made to resign, there was no legal avenue or recourse for me.

3. I spoke with a friend and was informed that there may be something that I could do.

4. Once I became aware, I starting taking steps to locate the appropriate information and find the correct application form.

5. I first attempted to navigate the website, but did not have any luck locating information that was relevant.

6. I found some information about types of dismissals, such as unfair dismissals, constructive dismissal and unlawful dismissals. I had trouble working out which dismissal type was applicable. I thought that I had been constructively dismissed, and I looked for the appropriate form and time limitation period. I could not fine either. I thought that perhaps there was a longer time frame for lodging constructive dismissals.

7. I made contact with Fair Work by phone. I was given information about the process and was told that I need to lodge a Form f9. I downloaded and printed the Form f9, but it was not consistent with the verbal information that I had been given.

8. I felt increasingly confused and frustrated by the process.

9. I kept trying to make contact with Fair Work by phone.

10. I had trouble contacting Fair Work due to the Easter and ANZAC day public holidays.

11. I was eventually directed to contact the Working Women’s Centre. I spoke with Sonya, and was provided with the information I needed to lodge a Form f2 Unfair Dismissal.”

[6] The extension of time issue was considered through a telephone conference on 4 June 2014. A sound file record of this conference was kept. Mrs Moor participated in this conference with her representative, Ms Rogers of the Working Women’s Centre SA Inc. The Respondent was represented by Mr Baldwin, of counsel, pursuant to a grant of permission made under s.596(2)(a) of the FW Act. There was no dispute about this grant of permission.

[7] I have taken account of all of the material before me in considering the extension of time issue.

[8] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).

(3) The 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.”

[10] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. It may be that the parties differ over the extent to which the termination of Mrs Moor’s employment took effect on 14 April 2014 or 15 April 2014. However, irrespective of whether Mrs Moor’s employment was terminated by the Respondent, Mrs Moor understood that employment termination took effect on 15 April 2014. The application was lodged some five days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mrs Moor’s circumstances can be regarded as exceptional for the purposes of this subsection. In this respect I have applied the concept of “exceptional circumstances” in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 in the following terms:

“[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.”

[11] I have considered the information Mrs Moor has provided for the time delay. Firstly, Mrs Moor advises that she was unwell and stressed. I do not have advice which confirms that her medical condition precluded her from pursuing this application. Secondly, Mrs Moor has advised that she became aware of the capacity to make an application some 11 days after the termination of her employment took effect. Thirdly, she advised that the delay was due to difficulties she then had in accessing web site and then telephone advice from the Fair Work Commission (FWC). In this respect she detailed telephone contact she made with FWC from 28 April to 1 May 2014 when she was referred to the Working Women’s Centre. Finally, Mrs Moor explained the delay in accessing advice and assistance through the Working Women’s Centre. I have considered each of these reasons individually and collectively. I am not satisfied that Mrs Moor’s actions to obtain and continue to pursue information relative to the lodgement of the application establishes a satisfactory reason for the delay or could be said to collectively represent exceptional circumstances. In large measure the reason for the delay is that Mrs Moor was unaware of her rights and the time within which those rights could be exercised. I have reviewed Mrs Moor’s circumstances in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3 but am unable to conclude that the steps that Mrs Moor took, when she became aware of the capacity to make an application, mean that her circumstances are exceptional.

[12] The information provided does not enable a conclusion about whether the termination of Mrs Moor’s employment was at her own initiative or that of the Respondent. However, it is clear that Mrs Moor understood that this termination of employment took effect on 15 April 2014 which I have taken as the date that termination of employment took effect.

[13] I have concluded that Mrs Moor did not challenge the termination of her employment other than through lodging this application.

[14] The Respondent did not contend that the granting of an extension of time would prejudice it in this matter. Notwithstanding this, the mere absence of prejudice does not provide a basis for the extension of time.

[15] In terms of the merits of the application, s.385 establishes that, for a person to be protected from unfair dismissal he or she must have been dismissed. Section 386 provides the meaning of dismissed for this purpose. The information provided to me includes a resignation made out by Mrs Moor on 14 April 2014. Notwithstanding this, the information provided to me does not enable a conclusion about either the extent to which Mrs Moor was dismissed or the merits of her application. Accordingly, I have concluded that the merits of the application should be regarded as a neutral factor with respect to the extension of time issue.

[16] I have considered the position adopted by Roberts C in Nohra v Target Australia Pty Ltd. 4In that matter the Commissioner determined the circumstances before him to be unusual and made a finding on the evidence before him. In contrast, general considerations of fairness relative to persons in similar circumstances to Mrs Moor do not support an extension of time.

Conclusion

[17] For the reasons I have set out above, Mrs Moor’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR551523) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

K Rogers representing the applicant.

R Baldwin of counselrepresenting the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

June 4.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

 3   [2011] FWAFB 975, at para [14]

 4   [2010] FWA 6857

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551522>