Sylvana Tarraf v Sydney Night Patrol & Inquiry Co Pty Ltd
[2023] FWC 1433
•19 JUNE 2023
| [2023] FWC 1433 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sylvana Tarraf
v
Sydney Night Patrol & Inquiry Co Pty Ltd
(U2023/3898)
| COMMISSIONER MCKINNON | SYDNEY, 19 JUNE 2023 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Ms Sylvana Tarraf was employed in the role of National Manager - Injury Management by Sydney Night Patrol & Inquiry Co Pty Ltd (Sydney Night Patrol) from 25 March 2019 until 10 March 2023. On 6 May 2023, Ms Tarraf applied for an unfair dismissal remedy. The application was filed 5 weeks and one day late. The question is whether additional time should be allowed for Ms Tarraf to make the application to the Commission.
I have decided not to allow additional time for Ms Tarraf to make the application. The application will be dismissed. These are my reasons.
Extension of time
Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
A list of matters to be taken into account when deciding whether to grant additional time is prescribed by s.394(3) of the Act. These are:
· 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.
Relevant factors
Reason for delay: The reason given by Ms Tarraf in this case for the late filing of her application is that she followed the advice she was given, which unfortunately turned out to be “incorrect” because her concern was not being considered for other roles. Ms Tarraf was also experiencing medical issues associated with a difficult pregnancy during the relevant period, although she did not rely on these as reasons for the delay.
Ms Tarraf initially applied to the Commission to deal with a general protections application involving dismissal on the advice of Legal Aid. The application was made on 22 March 2023 and was lodged in time. A subsequent consultation with a different lawyer through the Commission’s Workplace Advice Service reassured her that she had made an appropriate claim.
During conciliation of the general protections application on 27 April 2023, the conciliator suggested to Ms Tarraf that she might have gone down the path of unfair dismissal. Conciliation failed to resolve the dispute and Ms Tarraf saw a lawyer again on 1 May 2023. At that time, she was still looking at which issues she wanted to pursue. According to Ms Tarraf, the lawyer’s advice was to the effect that she potentially should have lodged an unfair dismissal claim rather than a general protections claim; that she should try and negotiate a settlement; and if that failed, she could withdraw the claim and seek an extension of time to apply for an unfair dismissal remedy.
Ms Tarraf says she followed the advice she was given. After speaking to the conciliator and communicating a further offer of settlement which was not accepted, on 4 May 2023, Ms Tarraf advised the Commission that she wished to discontinue her application. Advice of withdrawal was provided to the parties on 5 May 2023 and the file was closed.
On 6 May 2023, Ms Tarraf lodged this application.
Whether the person first became aware of the dismissal after it had taken effect: Ms Tarraf knew of her impending dismissal three months ahead of time, on 16 December 2022.
Any action taken by the person to dispute the dismissal: As noted above, Ms Tarraf applied in time for the Commission to deal with a general protections dispute involving dismissal on 22 March 2023. She pursued that claim until it was unable to be resolved, at which time she made this application for an unfair dismissal remedy.
Prejudice to the employer (including prejudice caused by the delay): Despite the more than 5 week delay, there is no prejudice to Sydney Night Patrol if the application proceeds. It has been on notice of the substantive issues in dispute in relation to the dismissal since 22 March 2023 when the general protections application was lodged.
Merits of the application: The reason given for Ms Tarraf’s dismissal was that her position had become redundant and there were no alternative positions available for her to perform. At the time of dismissal, Ms Tarraf was 27 weeks pregnant. Ms Tarraf submits that the redundancy was not genuine; that she was dismissed for the prohibited reasons of pregnancy and the right to take maternity leave; and because available reasonable redeployment opportunities were not offered to her. Ms Tarraf has an arguable case and there are doubts on the face of the record about whether the evidence would support Sydney Night Patrol’s case theory at least in relation to redeployment.
Fairness as between the person and other persons in a similar position does not appear to be a relevant criterion in this case.
Conclusion
I am not satisfied that there are exceptional circumstances in this case such that I can allow additional time for Ms Tarraf to make her application. The advice that Ms Tarraf was given about the options for disputing her dismissal does not appear to me to have been incorrect. A forensic choice was made by Ms Tarraf, on the basis of legal advice, to pursue her concerns under the Act’s general protections provisions rather than by applying for an unfair dismissal remedy. Each option was open to Ms Tarraf on the facts that gave rise to her dismissal. Each gave Ms Tarraf the opportunity to argue, and seek redress for, the matters in dispute, including Sydney Night Patrol’s failure to offer Ms Tarraf suitable alternative employment.
While Ms Tarraf was dealing with difficult medical issues during the relevant period, I am not satisfied on the evidence that these contributed in any material way to the late filing of this application or to the steps taken by Ms Tarraf to dispute her dismissal.
If I had been satisfied of the existence of relevant exceptional circumstances, I would have exercised my discretion to grant an extension of time to Ms Tarraf. This is because on the face of the record, the merits of the case weigh in favour of the grant of extension of time, and none of the other mandatory considerations tend against it. However, I am not so satisfied. As a result, I cannot allow additional time for the application to be made.
Disposition
The application is dismissed.
COMMISSIONER
Appearances:
S Tarraf on her own behalf.
A Abbott of HWL Ebsworth Lawyers for the respondent.
Hearing details:
2023.
Sydney (by video):
June 7.
Final written submissions:
June 8.
[1] [2011] 203 IR 1 at [13].
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