Tahlia Papandriopoulos v OzCar Pty Ltd
[2024] FWC 1008
•18 APRIL 2024
| [2024] FWC 1008 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tahlia Papandriopoulos
v
OzCar Pty Ltd
(C2024/973)
| DEPUTY PRESIDENT DEAN | CANBERRA, 18 APRIL 2024 |
Application to deal with contraventions involving dismissal – extension of time refused – application dismissed.
This decision concerns an application made by Ms Thalia Papandriopoulos (Applicant) pursuant to s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving her employment with OzCar Pty Ltd (Respondent).
The Applicant states in the application that her employment commenced on 1 December 2023 and ended on 18 January 2024. Her general protections application was lodged with the Commission on 23 February 2024.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. This application was made some 15 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.
The application was listed for hearing on 17 April 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on her own behalf and Ms Otavski appeared with permission for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Act does not specify what reason for the 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.[4]
Having considered the evidence presented by the Applicant, I am not satisfied that an acceptable explanation has been provided for the Applicant’s failure to file this application within the statutory timeframe.
The Applicant gave 4 reasons for the delay, those being:
a.A man from the Commission called the Applicant after she filed her first claim to inform her that her claim was ‘premature’ and she should withdraw it and wait awhile before resubmitting it for the best chance of the Respondent taking her claim seriously;
b.A person by the name of Gail Larsson, who the Applicant described as a factual investigator, had all the witness statements for her evidence;
c.She was not mentally well and it has been a big challenge to do everyday tasks; and
d.She lives in a domestic violence household.
The Applicant did not expand on the call she says she received from a staff member of the Commission about withdrawing her first application. In my view it would be unlikely that a staff member of the Commission would suggest that an application that is time sensitive should be withdrawn and a new application be subsequently filed out of time. This does not provide a reasonable explanation for the delay in lodging her second application.
In terms of the second reason given for the delay, this does not provide an explanation as to why there are exceptional circumstances that would warrant further time being allowed for the application to proceed.
The Respondent submitted that the fact an application had been made within time negated the third and fourth reasons given by the Applicant as to the reason for the delay. I agree with this submission. The Applicant has produced no medical evidence to support a finding that she was incapable to lodge the application within the 21 day period.
These matters weigh against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant does not appear to have taken any action to dispute her dismissal prior to the making of this application.
This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:
“It would appear that this factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination.”
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[6]
There is insufficient information provided by the Applicant in support of her claim that adverse action was taken against her by the Respondent. On the very limited evidence before me, I am unable to make any firm or detailed assessment of the merits.
I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[8]
The Respondent’s submissions in this regard referenced other decisions of the Commission where no extension of time had been allowed.
The decisions referenced turn on their own facts, and so I find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, no further time is allowed for the application to proceed and the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
T Papandriopoulos on her own behalf.
V Otavski for OzCar Pty Ltd.
Hearing details:
2024.
By telephone:
April 17.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] [2011] FWAFB 975.
[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[7] [2015] FWC 8885.
[8] Ibid at [29].
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