Thelma Sierra v Comphire Pty Ltd

[2016] FWC 3271

[2016] FWC 3271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thelma Sierra
v
Comphire Pty Ltd
(U2016/5698)

COMMISSIONER LEE MELBOURNE, 25 MAY 2016

Application for relief from unfair dismissal - extension of time - s.394 Fair Work Act 2009.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Thelma Sierra (the Applicant) claims she was unfairly dismissed from her employment with Comphire Pty Ltd (the Respondent).

[2] The application was made by the Applicant on 24 March 2016. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 15 April 2016, objected to the application on three grounds. Firstly that the application had been made outside the statutory time limit, secondly that the Respondent is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code and thirdly, a ground that appears to relate to the Applicant’s status as a s.457 visa worker.

[3] There is some controversy as to the date the termination took effect. The Applicant claims that she was unaware of her status of employment until she received her letter of termination on 24 March 2016. The Respondent claims that the Applicant was dismissed orally on 1 March 2016 and the dismissal took effect on that date.

[4] The application was received by the Fair Work Commission (FWC) on 24 March 2016. If the termination took effect on 1 March 2016 then the application should have been received by 22 March 2016 and is therefore 2 days out of time. If the termination took effect on 24 March 2016, the application was clearly received within the statutory time limit.

[5] The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for the lodging of the application pursuant to s.394(3) of the Act. The matter was listed for Jurisdictional Conference/Hearing (Extension of Time) on 19 April 2016 in Melbourne by telephone to Kalgoorlie. The Applicant appeared on her own behalf and Mr Flynn, Director of Comphire Pty Ltd appeared on behalf of the Respondent.

The Law to be applied

[6] Section 394 of the Act provides as follows:

“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.”

[7] As noted above, the application was not lodged within the statutory period. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Evidence

Background

[8] Many of the factual circumstances surrounding the dismissal of the Applicant are not in dispute. The Applicant was employed as an Office Administrator by the Respondent. She had been employed since December 2014 and was terminated for alleged poor performance. 1 It is apparent the Applicant is on a s.457 visa.

[9] On 1 March 2016, the Applicant, when forwarding some correspondence on behalf of the Respondent, made an error in an email address. The Applicant considered the error to be not significant and something that could easily be corrected. Mr Flynn confronted the Applicant about the error and on his own admission, he did “tap” the Applicant on the forehead admonishing her and telling her the problems were “in her head”. 2 Mr Flynn then left the room. When he returned the Applicant remonstrated with him about being poked in the head telling him he could not do that and that he should not touch her.3 At this point Mr Flynn said there was a verbal exchange. While there is some conflict over what occurred, Mr Flynn agrees that ultimately he told the Applicant, “well, why don’t you fuck off then you bitch.”4 The Applicant was required to hand over the keys to the work vehicle and other items. The Applicant left the workplace and did not attend the workplace again.

[10] The Respondent claims that he gave the Applicant numerous warnings about her performance and that the dismissal was consistent with the Small Business Fair Dismissal Code. The Applicant agreed that she was given verbal warnings but claimed they were for minor issues and that there were less than five of them.

[11] Mr Flynn agreed that he had told the Applicant that she was not to fraternise with a co-worker out of hours because “it causes problems when they’re fraternising with people in junior positions within the company as to fairness and issues along the lines of fairness”. 5 It is apparent that Mr Flynn made it a condition of employment that his employees were not to form relationships.6

[12] The Respondent claimed that there was prejudice as a result of the application as it had prevented him from undertaking a holiday and he could have had Easter off from work.  7

[13] The Applicant submitted that the reason for the delay, assuming the termination took effect on 1 March 2016, was that that given the circumstances surrounding the dismissal, she was uncertain of her employment status and did not consider that she could take action until she was given something in writing to confirm the dismissal. It is apparent that the Applicant received a letter of dismissal on 24 March 2016.

Consideration

When did the dismissal take effect?

[14] It is not in dispute that on 1 March 2016, Mr Flynn told the Applicant “why don’t you fuck off then you bitch”. She was told to hand back her keys and other items and she did so. The Applicant left the workplace and did not enter it again. She received payment in lieu of notice.

[15] There is no doubt on the uncontested facts that this was a termination at the initiative of the employer. The termination was given orally in an explicit manner. Where payment in lieu of notice is made, the dismissal usually takes effect immediately. It is clear on the evidence that the dismissal took effect on 1 March 2016. The application is therefore two days out of time.

Exceptional circumstances

[16] Section 394(3) of the Act provides that the Fair Work Commission may allow a further period for the application to be made if the Commission is satisfied there are exceptional circumstances taking into account the criteria set out in section 394(3)(a) - (f) of the Act.

[17] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd⁸, where the Full Bench stated that:

“[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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[18] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[19] I will deal with each criterion of section 394(3) of the Act in turn.

(a) the reason for the delay

[20] The major reason for the delay advanced by the Applicant is that she felt unable to take action in the FWC until she was able to establish her “status”. This relates to the concern of the Applicant to establish that she had been dismissed and the reasons that had occurred by way of obtaining a “legal document” to that effect, before taking action. 9 However, this matter is more relevant to the consideration in (c) as detailed below.

[21] The Applicant also referred to difficulties sleeping and being in a state of shock after the dismissal. However, there was nothing to suggest that these effects were of a magnitude that they prevented the Applicant from lodging an application. Overall, I am not satisfied that there is an acceptable reason for the delay of two days. This weighs against granting an extension.

(b) whether the person first became aware of the dismissal after it had taken effect

[22] It is clear the termination took effect on 1 March 2016. The Applicant claims she was unaware the termination took effect on 1 March 2016.  10 While it is clear that the termination of employment took effect on 1 March 2016, the Applicant stated in her evidence that she was “unaware of her status”. She explained that what she meant by this was that she didn’t receive the legal document that made clear she was dismissed.11 This is a neutral consideration.

(c) any action taken by the person to dispute the dismissal

[23] The evidence relevant to this consideration is that the Applicant was adamant that she needed to secure a legal document indicating she was dismissed prior to lodging an application with the FWC. She took action in this respect by contacting Lauren Doyle, Bookkeeper for the Respondent, a number of times, requesting such a document. 12 Ultimately, when she received the letter of termination on 24 March 2016, she lodged the unfair dismissal application with the FWC on the same day. The Applicant was fearful of contacting Mr Flynn given the conduct engaged in on the day of dismissal.13 I accept the Applicant’s evidence that she was convinced that she could not take action in respect to the dismissal until she obtained the document. While her belief was not correct, it was in the circumstances action taken to dispute the dismissal. Overall, I am satisfied this factor weighs in favour of granting the application.

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

[24] The Respondent claimed he was prejudiced because the fact that the application was made meant that he missed out on a holiday and/or worked over Easter. I am unable to see how the application being made could have that effect. I am not satisfied that there is any prejudice to the employer. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 14 This is a neutral consideration.

(e) the merits of the application

[25] The Respondent submits that the termination was consistent with the Small Business Fair Dismissal Code. There is a dispute about the number of times the Applicant was warned about her behaviour. However, the Applicant’s own evidence was to the effect she was warned a number of times. A mentor was engaged to assist the Applicant with her performance and it’s conceivable the employee had a reasonable chance to rectify the problem. To that extent, the dismissal may well comply with the Small Business Fair Dismissal Code.

[26] However, it is not at all apparent that the Applicant was warned that she could be dismissed as required by the Code. Moreover, the extraordinary way the dismissal took effect, with the Respondent first tapping the Applicant on the head and then speaking in a most abusive manner to her when she remonstrated with him about touching her, hardly evidences any opportunity for the Applicant to respond to the reason for the termination.

[27] In considering the merits in an extension of time hearing, the FWC should not embark on a detailed consideration of the substantive case. 15 However, the uncontested evidence as to the manner of the dismissal is so appalling as to allow a finding that the application has significant merit. This weighs in favour of granting the extension.

(f) fairness as between the person and other persons in a similar position.

[28] Neither party raised this as an issue. Overall, this factor is a neutral consideration.

Conclusion

[29] I am not satisfied there is an acceptable reason for the delay. This weighs against allowing an additional period for the application to be made.

[30] The factors related to when the Applicant became aware of her dismissal, prejudice to the employer and fairness to persons in similar position are all neutral considerations.

[31] Consideration of action taken to dispute the dismissal weighs in favour of granting the application.

[32] The application does have considerable merit and this weighs in favour of granting the application.

[33] Taking into account all of the relevant factors, the strong merit of the application and the actions that the Applicant took to dispute the dismissal are the factors that weigh in favour of granting the extension. This has to be weighed against there being an absence of an acceptable reason for the delay. The other factors are neutral considerations.

[34] Having considered all of the factors, I am satisfied that the strength of the merit case combined with the action taken to dispute the dismissal are sufficient to satisfy me that there are exceptional circumstances that warrant allowing a further period for the making of an application for an unfair dismissal remedy. In Haining v Deputy President Drake(Haining) 16 Wilcox and Marshall JJ said:

“If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”  17

[35] Relevantly in Haining Moore J said:

“Circumstances can arise where no explanation or no adequate explanation is given for the delay in instituting proceedings but it is nonetheless in the interests of justice to extend time.”  18

[36] Taking into account all of the factors, I am satisfied there are exceptional circumstances that warrant allowing a further period for the making of an application for an unfair dismissal remedy. I propose to allow the Applicant an extension so that the period within which Ms Sierra can make her application is extended to 24 March 2016.

[37] An order giving effect to this decision has been issued separately in PR580679.

COMMISSIONER

Appearances:

T Sierra on her own behalf for the Applicant

M Flynn for the Respondent

Hearing details:

2016.

Melbourne and Kalgoorlie (by Telephone).

April 19.

Final written submissions:

15 April 2016

 1   Form F3 – Employer Response to Unfair Dismissal Application, filed 15 April 2016.

 2   PN119

 3   PN120

 4   PN130

 5   PN144

 6   PN146

 7   PN150

8 [2011] FWAFB 975

 9   PN105

 10   Applicant’s Outline of Argument: extension of time [8], filed 6 April 2016.

 11   PN93

 12   Applicant’s Outline of Argument: extension of time [4], filed 6 April 2016.

 13   PN44

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 15   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14].

 16   Haining v Deputy President Drake (1998) 87 FCR 248

 17   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 18   Haining v Deputy President Drake (1998) 87 FCR 248, 252

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<Price code C, PR580678>