Tiffony Dillon v Bunnings Group Limited T/A Bunnings Warehouse
[2022] FWC 88
•20 JANUARY 2022
| [2022] FWC 88 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tiffony Dillon
v
Bunnings Group Limited T/A Bunnings Warehouse
(U2021/11690)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 20 JANUARY 2022 |
Unfair dismissal application filed out of time - circumstances exceptional - extension of the time for filing allowed.
This decision concerns an application by Ms Tiffony Dillon (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
The termination of the Applicant’s employment with Bunnings Group Limited (Respondent) took effect on 18 November 2021. The unfair dismissal application was lodged in the Fair Work Commission (Commission) on 15 December 2021.
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 9 December 2021. The application was therefore filed 6 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent agrees that an extension of time should be granted to the Applicant in the circumstances.
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]
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.
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.
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
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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.[5]
I consider that the Applicant does have an acceptable explanation for the delay in filing her application. The Applicant’s brother unexpectedly died under tragic circumstances on the day after her dismissal. Since that time, the Applicant has been involved in an ongoing investigation into the circumstances of her brother’s death and the Applicant was solely responsible for her brother’s funeral arrangements. The funeral took place on 8 December 2021.
These circumstances weigh in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the day it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute her dismissal, other than by filing her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
The Applicant denies that she engaged in the conduct alleged against her by the Respondent. A response to the application has not yet been filed by the Respondent.
On the very limited material before the Commission, the Applicant has an arguable case that her dismissal was unfair. In all the circumstances, I consider the merits of the Applicant’s claim to provide some support for her application for an extension of time.
Fairness as between the person and other persons in a similar position
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.
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
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 and Respondent, I am satisfied that there are exceptional circumstances. In making this evaluative assessment I have taken into account each of the factors in paragraphs 394(3)(a) to (f). The most persuasive factor in the circumstances of this case is the fact that the Applicant has provided an acceptable and reasonable explanation for the delay in lodging the application. It is plainly unusual for a person to have to deal with the unexpected death of their sibling in tragic circumstances. I am also persuaded that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Applicant’s application to be lodged. I will therefore extend the time for the Applicant to lodge her unfair dismissal application to 15 December 2021. An order will be issued to that effect [PR737596].
DEPUTY PRESIDENT
Appearances:
Mr M Crossley, appeared for the Applicant
Ms M McHugh, appeared for the Respondent
Hearing details:
2022
Newcastle (by telephone)
January 19.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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