Vanessa Henderson v Major Enterprises Australia Pty Ltd

[2024] FWC 935

[2024] FWC 935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Vanessa Henderson
v

Major Enterprises Australia Pty Ltd

(U2024/2562)

DEPUTY PRESIDENT DEAN CANBERRA, 12 APRIL 2024

Application for an unfair dismissal remedy

1. Ms Vanessa Henderson (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by Major Enterprises Australia Pty Ltd (Respondent).

1. Section 394(2) of the Act provides 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 Applicant’s dismissal took effect on 9 February 2024 and she made the application on 6 March 2024, five days outside the 21 day period.

1. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

1. The matter was listed for hearing by telephone on 11 April 2024. Mr L Muriniti appeared with permission for the Applicant and Ms S Fadel appeared with permission for the Respondent.

2. 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]

1. The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

1. 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.

1. 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 this application.

Reason for the delay

1. 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.[3]

1. In short, illness was the reason given for the delay. The Applicant gave evidence that she began to feel unwell a few days after her dismissal, and on 14 February 2024 she attended her doctor who diagnosed her as having an upper respiratory tract infection. She said she became extremely unwell after having seen her doctor, to the point where she spent three weeks in bed and was unable to prepare meals or move around the house without assistance from her partner. She said she had to cancel several appointments that were scheduled in that time period as she was too unwell to go out, and she made this application as soon as she was well enough to sit at the computer.

1. The medical evidence supplied by the Applicant consists of a certificate dated 14 March 2024 in the following terms:

“Ms Vanessa Henderson became unwell with an upper respiratory tract infection on the 13^th February 2024, and was unwell for a few weeks. I am aware that she is talking to FairWork Ombudsman and that her application for unfair dismissal was delayed due to her illness. I support her application for the Ombudsman. Feel free to contact me to discuss if you have any concerns”.

1. In addition, a Certificate of Capacity dated 14 March 2024 was provided, however it did not deal with the Applicant’s ability or otherwise to make this application.

2. While I accept the Applicant may have cancelled appointments she had, the medical evidence submitted does not support a finding that the Applicant was incapacitated to such an extent that she was unable to make her application within the statutory time frame.

1. To this end, I note the Commission provided detailed information to the Applicant in an email dated 13 March 2024 explaining what was required to demonstrate that there were exceptional circumstances for not lodging the application on time. This email includes the following:

“For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time.”

1. The medical evidence supplied by the Applicant does not, in my view, reach the standard required to demonstrate an incapacity to make her application within time.

1. In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

1. The Applicant was aware of the dismissal on the day it took effect. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. While 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

1. The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission should not embark on a detailed consideration of the substantive case.

1. The Applicant strongly disputes the basis for her dismissal and gave evidence about the matters giving rise to her dismissal and why she contended it was unfair. She said the allegations made against her were false and if her application was allowed to proceed she would be able to prove that the allegations were untrue. She also contends that she was dismissed because of her workers compensation claim after a serious injury she sustained at work.

1. The Respondent contends there was conduct which amounted to misconduct which warranted her dismissal.

2. The merits of the application turn on highly contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

1. 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.

1. I do not consider that there are any persons or cases relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration.

Conclusion

1. 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, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

L Muriniti of LC Muriniti & Associates for Vanessa Henderson.
S Fadel of Lander & Rogers for Major Enterprises Australia Pty Ltd.

Hearing details:
2024.
By telephone:
April 11.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

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