Tahlia Papaklonaris v Soma Lasers Australia t/a the Melbourne Laser Derm

[2020] FWC 5103

[2020] FWC 5103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tahlia Papaklonaris
v
Soma Lasers Australia t/a The Melbourne Laser Derm
(U2020/12449)

DEPUTY PRESIDENT MANSINI MELBOURNE, 24 SEPTEMBER 2020

Application for an unfair dismissal remedy.

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

[2] I have determined that the application was filed outside the statutory timeframe and, taking into account the matters at s 394(3), am not satisfied that the circumstances (when considered individually or together) are exceptional. Accordingly, the application is dismissed. The reasons for this decision follow.

Application filed outside the statutory timeframe

[3] The Applicant’s employment with The Melbourne Laser Derm (Respondent) ended on and effective 23 August 2020. The unfair dismissal application was lodged on 16 September 2020.

[4] 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 13 September 2020. The application was therefore filed 3 days outside the 21 day period.

[5] The Applicant asked the Commission to grant a further period for the application to be made under s 394(3). A program for the filing of materials in relation to this jurisdictional issue was set and the matter proceeded to hearing, by telephone, on 23 September 2020.

[6] In support of her request for an extension of the time for filing the claim, the Applicant asked the Commission to receive the application and a written document addressing the criteria at s 394(3) as her evidence. The Applicant also made oral submissions at the hearing. The Respondent declined the opportunity to file materials in relation to the jurisdictional issue and did not attend the hearing.

The ‘exceptional circumstances’ test

[7] 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

[8] 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.

[9] 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.

[10] 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

[11] 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

[12] In summary, the Applicant described the reasons for the delay in lodging the application as:

a) Instead of “having to go to the extent of getting fair work involved”, the Applicant first attempted to have her accountant communicate with the Respondent’s accountant about payment of her entitlements upon termination. However, the attempts of the Applicant’s accountant to communicate were “ignored” and so the Applicant resorted to getting further assistance.

b) It was not until after the time for filing had expired (although the Applicant could not recall the exact date), when the Applicant first spoke to a representative of “Fair Work” and became aware that she was able to bring this unfair dismissal claim.

[13] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. Unfair dismissal applications can be made without legal or other professional advice. Material to assist the general public in preparing and lodging applications is available on the Commission’s website. 4 The Applicant has demonstrated that she was capable of identifying the jurisdiction and able to make an unfair dismissal claim. She simply did so after the statutory time for filing. That she would have preferred to avoid commencing these proceedings and resolve the matter with the Respondent is not, in my view, uncommon or unusual. Further, mere ignorance is not sufficient to justify the delay.5

[14] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[15] 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.

[16] This factor weighs against the Applicant because she had the benefit of the full 21 day period to lodge an application.

Action taken to dispute the dismissal

[17] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 6 The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.7

[18] The Applicant’s evidence was that she caused her accountant to communicate with the Respondent’s accountant about payment of entitlements due to her upon termination. The communication to the Respondent’s accountant is not before the Commission and there is nothing before the Commission to suggest that the Respondent in fact received it or was on notice of the Applicant’s intention to dispute any element of the dismissal.

[19] Taking the Applicant’s evidence at its highest, I am not persuaded that there was a genuine effort to resolve the dispute with the Respondent or that the evidence establishes ‘action taken to dispute the dismissal’. This does not weigh in favour of a finding of exceptional circumstances. Even if that were not the case, and the Applicant’s attempt to indirectly communicate with an agent or advisor to the Respondent was found to amount to some action of a kind contemplated by s 394(3)(c), I would consider this to weigh only slightly in favour of a finding of exceptional circumstances.

Prejudice to the employer

[20] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted.

[21] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to extend the time for filing. As the Respondent declined to participate in these proceedings about the jurisdictional issue, and has not filed any response to the claim whatsoever, the materials before the Commission are limited to the Applicant’s contentions that her dismissal was unfair.

[23] The merits of the application would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits.

[24] I consider the merits to be a neutral consideration.

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

[25] 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.

[26] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[27] 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. The absence of an acceptable or reasonable explanation and the Applicant’s immediate awareness of the dismissal taking effect respectively weigh against, the action taken does not weigh in favour, and all other factors weigh at best neutrally towards a finding of exceptional circumstances in this case. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[28] I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

T. Papaklonaris for herself.

Hearing details:

2020
Melbourne (By Telephone)
23 September 2020

Printed by authority of the Commonwealth Government Printer

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

 2   Ibid.

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

 4  Allison Shand v Pet Universe Administration Pty Ltd [2020] FWC 2782 at [8].

 5   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 6   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].

 7   Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.