Trish Tinotenda Madade v Hungry Jack's Pty Ltd

[2018] FWC 6052

[2018] FWC 6052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trish Tinotenda Madade
v
Hungry Jack’s Pty Ltd
(U2018/6781)

DEPUTY PRESIDENT DEAN SYDNEY, 27 SEPTEMBER 2018

Application for an unfair dismissal remedy – extension of time

[1] Ms Trish Madade was employed by Hungry Jack’s Pty Ltd (Hungry Jack’s) until 3 June 2018.

[2] On 2 July 2018, Ms Madade lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that she had been unfairly dismissed by Hungry Jack’s. 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 on 27 September 2018 to determine whether Ms Madade should be granted an extension of time pursuant to s.394(3) of the Act to make her application. At the hearing Ms Madade appeared on her own behalf. Ms M Kay appeared on behalf of Hungry Jack’s.

[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 the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Ms Madade.

[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] Ms Madade submitted that the reasons for the delay in filing her application were:

● She is 17 years of age and was not aware of the law and procedures to follow after being terminated;

● Hungry Jack’s was her first job;

● She was terminated through WhatsApp, and was waiting for more formal notification;

● She is a full time year 11 school student with a demanding workload; and

● She did not think about pursuing the matter until her mother and stepfather suggested that she do so.

[9] At the hearing, Ms Madade confirmed the matters set out in her written statements of 16 August and 6 September 2018 and expanded on some aspects of those statements. She gave evidence that she had also met with a law firm on 26 June 2018 and was then made aware there was a 21 day timeframe in which to lodge her application.

[10] In response, Hungry Jack’s submitted that:

● Ms Madade had access to the Fair Work Statement via her online employee ‘JEDI’ account;

● After Ms Madade’s legal consultation on 26 July 2018, she was well aware of the 21 day time limit; and

● Neither Ms Madade’s application nor her outline of submissions (following legal advice) explain why it took her a further 7 day period to lodge her application following the receipt of that advice.

[11] Ms Kay made brief oral submissions on behalf of Hungry Jack’s during the hearing which supplemented its written submissions.

[12] It is not unusual for employees who have been dismissed to be unfamiliar with the relevant legislation, and ignorance of the statutory time limit is not an exceptional circumstance.For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon. Similarly, it is not unusual or uncommon for a person to have a demanding study workload.

[13] It is not a prerequisite for making an unfair dismissal application to have obtained a formal written letter of termination – only that the person has been dismissed. It is not out of the ordinary or unusual that a formal letter is not provided to a person. Ms Madade did receive written notice in the form of the WhatsApp message.

[14] Ms Madade confirmed she was aware of the 21 day timeframe on 26 June 2018 when she obtained legal advice. Her explanation as to why it still took 7 days to make her application was due to her school work. I do not consider that this is a satisfactory reason for the delay.

[15] Having considered the evidence and submissions, I find that Ms Madade’s reasons for the delay in lodging this application weigh against the granting of an extension of time.

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

[16] Ms Madade’s employment ended on 3 June 2018. While she gave evidence during the hearing that she was confused about her dismissal, I am satisfied that she was aware of her dismissal on 3 June. The WhatsApp message she received was in the following terms: “I don’t think we can continue your employment after today. You can return your uniform to avoid further deduction. Thanks.” Her unfair dismissal application recorded a dismissal date of 3 June, as did her written submissions filed prior to the hearing. There was no suggestion prior to the hearing of any confusion about her dismissal. I find that this this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[17] Ms Madade did not take any further action to dispute her dismissal until the present application was lodged. I find that this weighs against the granting of an extension of time.

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

[18] Hungry Jack’s submitted it would be prejudiced if time was extended. This was because it could no longer properly investigate her claims about how she was treated at work as the relevant CCTV footage was no longer available. I am not persuaded that granting an extension of time would necessarily result in a prejudice to Hungry Jack’s. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of granting an extension of time.

The merits of the application

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

[20] Ms Madade maintains that she was unfairly dismissed because there were no formal warnings or discussions with her regarding the contention that she was not attending for her rostered shifts.

[21] Hungry Jack’s submitted that Ms Madade had received written warnings about the requirements around attending rostered shifts.

[22] 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

[23] 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

[24] I do not consider that there are other relevant persons in a similar position to Ms Madade. I therefore find this to be a neutral consideration.

Conclusion

[25] 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 to Ms Madade. Her circumstances are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

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

DEPUTY PRESIDENT

Appearances:

T Madade, on her own behalf.

M Kay, for Hungry Jack’s Pty Ltd

Hearing details:

2018.

Sydney, by telephone:

September 27

Printed by authority of the Commonwealth Government Printer

<PR700886>

 1   [2011] FWAFB 975.

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

 3   [2015] FWC 8885.

 4 Ibid at [29].