Teena Johnson v Darlington Point Club Ltd

[2019] FWC 3719

[2019] FWC 3719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teena Johnson
v
Darlington Point Club Ltd
(U2019/3183)

DEPUTY PRESIDENT DEAN SYDNEY, 31 MAY 2019

Application for an unfair dismissal remedy.

[1] Ms Teena Johnson was employed by Darlington Point Club Ltd (the Club) until she was dismissed on 19 February 2019.

[2] On 20 March 2019 Ms Johnson lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking relief for an alleged unfair dismissed by the Club. Her application was made 8 days outside the 21 day period prescribed by s.394(2) of the Act.

[3] The matter was listed for hearing by telephone on 31 May 2019 to determine whether Ms Johnson should be granted an extension of time pursuant to s.394(3) of the Act to make her application. At the hearing Ms Johnson appeared on her own behalf and Ms L Pike of Clubs NSW appeared for the Club.

[4] Section 394(3) of the Act provides:

(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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] The reasons for delay relied upon by Ms Johnson may be summarised as follows:

1. She believed that she had 30 days to file her claim for unfair dismissal.

2. She was shocked by the dismissal and was trying to come to terms with what had taken place before proceeding with the claim.

3. She tried to arrange a meeting with her former employer in an attempt to resolve the matter to no avail.

4. Her main priority was to obtain unemployment benefits and attend job seekers appointments at Centrelink office which is 100kms away from her.

[9] In response, the Club submitted that the reasons provided by Ms Johnson are not exceptional. As to Ms Johnson’s misconception that there is a 30 day timeframe for her application to be made, the Club submitted that there is established case law that ignorance of the 21 day timeframe is no excuse for the late lodgement of an unfair dismissal application.

[10] Having considered all of the evidence and submissions before me, I find that none of the matters advanced by Ms Johnson, individually or collectively, can be considered exceptional. Whilst I am sympathetic to Ms Johnston’s circumstances following her dismissal, the sentiments and challenges that she encountered are not uncommon experiences for people who have been dismissed from their employment.

[11] I find this factor weighs against a conclusion that there are exceptional circumstances.

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

[12] There is no dispute that Ms Johnson was advised of her dismissal on 19 February 2019. This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[13] Ms Johnson gave evidence that she had contacted the President of the Club in relation to her dismissal. However, in cross-examination she confirmed that the contact was made after the 21 day time period had concluded. As there was no action taken by Ms Johnson to dispute her dismissal prior to the time expiring, this weights against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[14] I am not persuaded that granting an extension of time would result in a prejudice to the Club. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.

The merits of the application

[15] For the purpose of determining whether to grant an extension of time for Ms Johnson to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’²

[16] Ms Johnson stated that her dismissal was unfair and that she was not given any verbal or written warnings about any issues with her work. She also stated that immediately after her dismissal, her manager told her he did not have any problem with her work ethic because she went “above and beyond my job title”.

[17] The Club contended that the termination of Ms Johnson’s employment was for a valid reason and was made on the basis of numerous complaints made by patrons of the Club relating to her conduct and attitude.

[18] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

[19] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 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.’4

[20] I do not consider that there are other relevant persons in a similar position to Ms Johnson, and I therefore find it to be a neutral consideration.

Conclusion

[21] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor needs to be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[22] In Stogiannidis and Victorian Frozen Foods 5, the Full Bench said:

[39] … each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[23] 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 extension of time. The circumstances of Ms Johnson are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[24] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

L Johnson, on her own behalf.

L Pike, for Darlington Point Club Ltd.

Hearing details:

Sydney.

2019:

May 31.

Printed by authority of the Commonwealth Government Printer

<PR708823>

 1   [2011] FWAFB 975.

2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 3   [2015] FWC 8885.

 4 Ibid at [29].

 5   [2018] FWCFB 901.