Vanessa Parkin v Hallmark Real Estate Pty Ltd T/A Century 21 Results

[2015] FWC 3972

[2015] FWC 3972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Vanessa Parkin
v
Hallmark Real Estate Pty Ltd T/A Century 21 Results
(C2015/2586)

COMMISSIONER LEWIN MELBOURNE, 12 JUNE 2015

Application to deal with contraventions involving dismissal - whether exceptional circumstances exist - extension of time refused.

Background

[1] Ms Vanessa Parkin has made an application to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dismissal dispute involving alleged contraventions of the General protections provisions of the Act. 1

[2] Ms Parkin was employed by Hallmark Real Estate Pty Ltd trading as Century 21 Results (Hallmark Real Estate). Hallmark Real Estate terminated Ms Parkin’s employment on 24 March 2015. Ms Parkin made her application to the Commission on 17 April 2015, three days late.

[3] Hallmark Real Estate objects to the Commission dealing with Ms Parkin’s dispute on the basis she lodged her application after the 21 day period described for doing so under s 366(1)(a) of the Act.

[4] Under s 366(1)(b), the Commission may allow a further period for a person to lodge an application under s 365 if it is satisfied there are exceptional circumstances. The parties were given an opportunity to provide witness statements, evidence and submissions to the Commission. Both parties filed material in accordance with directions and consented to the matter being determined on the papers.

Legislative scheme

[5] Section 366(1)(a) of the Act provides that an application under s 365 must normally be made within 21 days after the relevant dismissal took effect. The factors the Commission must take into account in exercising the discretion to allow a further period within which an applicant may lodge an application are set out in s 366(2):

366 Time for application

...

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

Submissions

[6] On 20 May 2015, Ms Parkin filed a letter in the Commission in support of her application for an extension of time. Ms Parkin conceded that she had not made the application within time due to her own error. Ms Parkin assumed that the three public holidays over the Easter period would not count as part of the 21 days she had to lodge her application. Ms Parkin submitted that she was not experienced in making such claims. Ms Parkin further submitted that as she had started new employment, it was difficult for her to find time.

[7] On 25 May 2015, Hallmark Real Estate filed a letter in the Commission in response to Ms Parkin’s letter filed in the Commission on 20 May 2015. It submitted that Ms Parkin provided a misleading and false statement in her application form where she had ticked ‘yes’ to the question ‘[a]re you making this application within 21 calendar days of your dismissal taking effect?” Hallmark Real Estate further submitted that Ms Parkin’s submission concerning the Easter public holidays would in fact allow her more time to file the application, as she would not be working on these days.

Consideration

[8] I have considered Ms Parkin’s submissions about the reason for the delay in lodging her application within the time prescribed by the Act. In considering whether these circumstances amount to exceptional circumstances, I am guided by the meaning of "exceptional circumstances" which was considered in Nulty v Blue Star Group Pty Ltd, 2 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." [Endnotes not reproduced]

[9] In that case, the Full Bench went on to say that “mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance.” 3 I will be guided by this principle and consider Ms Parkin’s error in calculating the days which constitute the 21 calendar days prescribed by the Act as not exceptional.

[10] Ms Parkin submitted that she was not familiar with lodging such (general protections) claims. I again find that this is not uncommon or unusual. Many people who file applications in the Commission do so without having done so before and must navigate the application process themselves.

[11] Ms Parkin further submitted that she had started new employment and found it difficult to find time. I again find that this is not uncommon or unusual. It is not uncommon that upon termination of employment, an individual will seek employment as a matter of urgency and begin work as soon as possible. This may be within the 21 days from dismissal that an application must be filed in the Commission and hence they must find the time to file their application within the legislated timeframe.

[12] In Ms Parkin’s application, she submitted that she asked Mr Petrovich, Director and Licensed Estate Agent, what his reasons were for the termination. With no further evidence of the action taken to dispute the dismissal, I will treat this criterion as neutral.

[13] There were no submissions made by Hallmark Real Estate as to any prejudice it may suffer if an extension of time were granted. On the evidence before me, I doubt there would be any prejudice of the relevant kind to the employer if the application were accepted.

[14] I consider the application may have merit and I treat this criterion as neutral.

[15] There are no other persons in a like position as Ms Parkin such as would give rise to this being a relevant consideration.

Conclusion

[16] In my view, the reasons advanced by Ms Parkin for the delay in filing her application do not constitute exceptional circumstances.

[17] As I have reached the conclusion that the circumstances of this case do not fall within the category of exceptional, Ms Parkin’s application with therefore not be accepted. I decide accordingly to dismiss the application. An order to dismiss the application will follow.

COMMISSIONER

 1 Chapter 3, Part 3-1 of the Fair Work Act 2009.

 2   [2011] FWAFB 975.

 3 Ibid at [14].

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