Wemyss v Mission Australia Employment Services
[2010] FWA 1798
•9 MARCH 2010
[2010] FWA 1798 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Mission Australia Employment Services
(U2009/14121)
COMMISSIONER CAMBRIDGE | SYDNEY, 9 MARCH 2010 |
Unfair dismissal – request for FWA to allow extension of time for lodgement of application.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 27 November 2009. The application was made by Helen Wemyss, (the applicant) and named the respondent employer as Mission Australia Employment Services, (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 8 October 2009. Consequently the application was made 36 days after the standard time limit prescribed by subsection 394 (2) of the Act. The employer made a jurisdictional objection to the application on the basis that the application had not been made within 14 days of the dismissal. The employer made further jurisdictional objection on the basis that the applicant had resigned from her employment on 8 October 2009.
[3] Subsequently a Hearing to deal with the question of extension of time was held on 26 February 2010. At the Hearing the applicant appeared unrepresented and the employer was represented by Ms S McCulloch and Mr N Domingo.
[4] The applicant provided evidence as a witness. She attested to the veracity of a document that had been filed in the proceedings and which was admitted and marked as exhibit 1. During the proceedings the applicant tendered further documentary material which was also admitted into evidence. The respondent did not adduce any evidence.
Factual Background
[5] The applicant had worked for the employer for approximately 2 1/2 years. In September 2009 the applicant raised concerns with the employer about what she alleged was an excessive workload and other work related matters. These concerns were not resolved to the applicant's satisfaction.
[6] In late September and early October 2009 the applicant sought advice from a firm of solicitors in respect of the unresolved workplace issues. In particular the applicant received advice regarding the issue of potential constructive dismissal. Subsequently on 8 October 2009, the applicant tendered her written resignation to the employer (Exhibit 1 - Annexure 3). At the time of her resignation the applicant was suffering from stress, anxiety and insomnia and in addition she was experiencing back pain.
[7] On 27 November 2009 the applicant again contacted solicitors and sought advice which prompted her to immediately contact Fair Work Australia (FWA). The applicant then electronically filed the application in this matter.
The Applicant’s Case
[8] The applicant submitted that during the period between her resignation on 8 October 2009 and the lodgement of the claim for unfair dismissal on 27 November 2009, she was suffering from medical conditions that prevented her from thinking clearly. Further, the applicant stated that she was unaware of the 14 day time limit established in respect to unfair dismissal applications.
[9] The applicant submitted that as FWA was a new tribunal, she had no knowledge of its existence at around the time that the issues that gave rise to her resignation were under consideration. The applicant mentioned the Decision of the Industrial Relations Court of Australia in the case of Brodie-Hanns v MTV Publishing Ltd 1 and she sought to rely upon that Decision as support for her application to have an extension of time granted.
The Respondent’s Case
[10] Ms McCulloch who appeared on behalf of the employer submitted that none of the explanations that had been provided for the delay could, either individually or collectively, amount to “extenuating circumstances”. Specifically Ms McCulloch submitted that there was no explanation that could satisfy FWA that the applicant was so debilitated that she was unable to lodge an application for unfair dismissal in the period after the resignation up to 27 November 2009.
[11] Ms McCulloch made further submissions which challenged the applicant's alleged unfamiliarity with FWA. In this regard McCulloch mentioned that the previous legislation, the Workplace Relations Act, provided a 21 day time limit for lodgement of unfair dismissal claims. Ms McCulloch submitted that the applicant's ignorance of FWA and any relevant time limit did not establish a valid excuse or exceptional circumstances.
[12] Ms McCulloch referred to the written submissions that had been filed on behalf of the employer. These submissions addressed the various matters contained within subsection 394 (3) of the Act. Ms McCulloch also referred to a number of other Decisions of FWA which she said supported the proposition that the applicant had not established that exceptional circumstances existed so as to provide any basis for the extension of time that was sought. Consequently Ms McCulloch submitted that FWA should reject the application for extension of time.
Consideration
[13] Subsection 394 (3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
[14] As can be seen from subsection 394 (3), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.
[15] Although it may be considered as trite law, it is important to remember the well-established starting point for any consideration to extend a prescribed time. In this regard the following extract from the Judgement of Fitzgerald J in Lucic v Nolan 2 is relevant:
“Where specific periods are fixed they are quite short. That carries obvious implications. However, the time limitations are not absolute. ... the court is given a discretion. Nonetheless, it must, in my opinion, be accepted that it has deliberately being made the prima facie rule that proceedings not commenced in time should not be entertained.” 3
[16] Consequently the onus rests with the applicant to convince FWA to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the length of any delay might logically amplify the onus on any applicant seeking the exercise of the discretion to extend time. In my view the length of any delay might operate to amplify the onus on an applicant in exponential terms, such that the longer the delay is the greater the difficulty is in establishing proper basis for the exercise of the discretion.
[17] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 14 days. Consequently I believe that the length of the delay should be assessed as a percentage of the actual time limit.
[18] In this instance the delay was 36 days relevant to the 14 day time limit. Consequently the delay has represented a little over 2 1/2 times the prescribed time limit. This represents a considerable delay relative to the prescribed time limit and therefore the applicant would face a significant but not insurmountable, onus to establish the existence of exceptional circumstances.
Subsection 394 (3) (a) - the reason for the delay
[19] There were essentially two reasons said to have caused the delay. Firstly, the applicant said that her health problems both physical and psychological, impeded her capacity to make an application within time. These health problems were exacerbated by her role as a carer of a disabled relative. Secondly, the applicant’s ignorance of FWA and the time limits relevant to any unfair dismissal application also operated as basis for the failure to lodge within time. These ignorance aspects were exacerbated by the apparent failure of solicitors to provide the applicant with advice of any time limit.
[20] There was evidence that the applicant was suffering from health problems of both a physical and psychological nature. These health problems appear to have broadly included back pain, anxiety, confusion, and insomnia. However there was no evidence to establish that these health problems acted as an impediment to lodgement of any claim for unfair dismissal. The applicant provided clear evidence that when advised by the solicitors on 27 November 2009 about the time limit difficulties that by then had been created, she managed to make electronic application very quickly.
[21] Consequently if FWA was to except that the applicant's health problems provided some acceptable reason for the delay, there would need to have been evidence of the debilitating nature of the health problems and the alteration with those problems on or around 27 November 2009 which enabled the applicant to make the inquiries that led quickly to the lodgement of the claim.
[22] The further reason for the delay involved the applicant’s apparent ignorance of FWA and the time limits associated with lodgement of any claim for unfair dismissal. It was submitted that FWA should disregard ignorance as a factor relevant to the consideration to extend time. It is important to note the apparent acceptance by the parties of the concept of “ignorance of the law is no excuse” a concept that has its origins in the legal maxim ignorantia legis neminen excusat.
[23] There is a common misconception that ignorance of a time limit for lodgement of an unfair claim is not a matter for consideration in respect to the exercise of any discretion to extend the time. The concept of “ignorance of the law is no excuse” is limited to criminal jurisprudence, see Hurrell and Queensland Cotton Corporation Limited 4. Ignorance of the time limit or for that matter ignorance of the Act more generally, is a matter which can be given due consideration in the exercise of the discretion to extend any prescribed time. This is particularly relevant in circumstances where the time limit is established in respect to beneficial legislation. In particular such consideration may be a relevant factor in circumstances where a previously understood time limit had been reduced, such as with the recent circumstances where the Act has reduced the previously relevant time limit of 21 days to 14 days.
[24] However in this instance the applicant’s alleged ignorance of FWA and of the time limits that relate to the lodgement of an unfair dismissal claim do not assist in the exercise of the discretion to extend time. Firstly, the applicant’s asserted ignorance did not extend to any absence of knowledge about unfair dismissal laws generally. Indeed it would be very unusual for any member of the Australian public to have been unaware of the extensive public debate about unfair dismissal laws in recent years. Secondly, the applicant's claim was filed well beyond the previous time limit of 21 days. Consequently I do not believe that ignorance could represent a valid reason for the delay in the circumstances.
Subsection 394 (3) (b) - whether the person first became aware of the dismissal after it had taken effect
[25] The applicant first became aware of the dismissal at the time at which she tendered her resignation. Consequently this factor does not assist the applicant.
Subsection 394 (3) (c) - any action taken by the person to dispute the dismissal
[26] Although the applicant had previously raised various concerns about work-related matters she did not take action to dispute the dismissal at the time that she resigned or shortly thereafter. In circumstances of an alleged constructive dismissal there may likely be the inclusion of words in a written resignation to the effect that the employee considers that they have no other option but to resign. The written resignation of the applicant does not express any such sentiments. Consequently this factor does not assist the applicant.
Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)
[27] The employer conceded that there was no particular prejudice that could be identified in this instance. Consequently this factor could be considered to provide potential assistance to the applicant.
Subsection 394 (3) (e) - the merits of the application
[28] It would appear that this factor, described in the Act as “the merits of the application”, is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination. The employer submitted that as this was a case involving alleged constructive dismissal any question of the merits of the application must be negatively impacted as compared with a “usual” dismissal.
[29] There is some fundamental logic attached to the proposition that the prospects for success of an alleged constructive dismissal are lessened by those circumstances when compared to clear employer initiated dismissal. Consequently the most beneficial consideration of this factor would have FWA treat it as neutral.
Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position
[30] This factor is described as “fairness as between the person and other persons in a similar position”. This is an unusual legislative provision. The employer submitted that FWA should have regard for the circumstances of other cases involving Decisions of FWA made pursuant to subsection 394 (3). In this respect a number of Decisions were referred to and in particular the case of Shields v Warringarri Aboriginal Corporation (Shields) 5 was said to be relevant. In effect the employer submitted that the factual circumstances that were said to be relevant in Shields represented a similar position to that of the applicant in this instance.
[31] There are considerable difficulties attached to the prospect that the factual circumstances of one matter might be translated into another case. I doubt that this is the intended application of subsection 394 (3) (f). If it was then significant potential injustice would exist where the text of any Decision may not fully encompass all of the relevant factual circumstances. Further, the practical difficulties associated with the necessary matrix containing an array of differing factual circumstances, arising from an expanding body of Decision texts, would create significant complexity and further potential for injustice arising from any incomplete or erroneous comparisons.
[32] I note that the application of subsection 394 (3) (f) of the Act was considered by O'Callaghan SDP in the decision Mrs P v The Employer 6. At paragraph 60 of that Decision O'Callaghan SDP identifies two bases upon which to consider subsection 394 (3) (f). For the reasons set out above I have decided to consider this factor as being confined to other persons in a similar position as employees of the employer who may have been treated differently by the employer in respect to circumstances relating to the alleged unfair dismissal.
[33] Consequently I reject the approach to consideration of this factor as was submitted by the employer. In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.
Exceptional Circumstances
[34] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofMr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 7. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in (a) to (f) was unusual or out of the ordinary.
Conclusion
[35] In this instance the exercise of the discretion to extend time has been required in respect to a significant delay of more than two a half times the prescribed time limit. In this context the factors that are mentioned in paragraphs (a) to (f) of subsection 394 (3) of the Act have been considered.
[36] The reasons offered for the delay were not satisfactorily supported by the evidence. Further, there was some obvious difficulty associated with the potential prospects for success of a constructive dismissal claim. The other factors under consideration either did not significantly assist the applicant's claim for FWA to exercise the discretion to extend time or were of neutral impact. Importantly none of these factors had any unusual characteristic that might provide basis for a finding that exceptional circumstances existed.
[37] Consequently in the absence of exceptional circumstances FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 394 (2) of the Act. Consequently the application is dismissed.
COMMISSIONER
Appearances:
Applicant in person
Ms F McCulloch and Mr N Domingo for the respondent
Hearing details:
Sydney 26 February 2010
1 Brodie-Hanns v MTV Publishing Ltd, Industrial Relations Court of Australia, [Marshall J], 67IR 298.
2 Lucic v Nolan, Federal Court of Australia, Fitzgerald J, 45 ALR 411.
3 Ibid @416.
4 Hurrell and Queensland Cotton Corporation Limited, Industrial Relations Commission of NSW, 125IR 145.
5 Shields v Warringarri Aboriginal Corporation, [2009] FWA 860, Kaufman SDP.
6 Mrs P v The Employer [2009] FWA 953.
7 Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
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