Zoey Tragaris v Autonexus Pty Ltd
[2023] FWC 3277
•7 DECEMBER 2023
| [2023] FWC 3277 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Zoey Tragaris
v
Autonexus Pty Ltd
(C2023/6335)
| COMMISSIONER P RYAN | SYDNEY, 7 DECEMBER 2023 |
Application to deal with a dismissal dispute filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Zoey Tragaris (Tragaris/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, Ms Tragaris states that her employment with Autonexus Pty Ltd (Respondent) commenced on 11 September 2023 and that her dismissal took effect on 14 September 2023. The Application was made on 16 October 2023.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 5 October 2023. The Application was therefore made 11 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made under s.366(2).
In its Form F8A Response, the Respondent objected to the Application on the ground that the Applicant was not an employee. The Respondent stated that the Applicant was employed by Persolkelly, a labour hire provider.
The matter was allocated to my Chambers to determine whether an extension of time will be allowed under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard on 6 December 2023. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr P Almond.
The following witness statements and documents were admitted into evidence:
· Applicant’s correspondence to the Commission dated 1 November 2023 (Exhibit 1);
· Persolkelly On-Hire Employment Agreement – Confirmation of Assignment dated 8 September 2023 (Exhibit 2); and
· Witness statement of Melissa Tucker, Senior People Business Partner of Inchcape Australia Limited, the parent entity of the Respondent (Exhibit 3).
The Applicant and Ms Tucker gave evidence at the hearing.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.366(2) 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 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) 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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[4]
In response to question 1.4 of the Application, the Applicant explained the reason for not making the Application within 21 calendar days of the dismissal taking effect as follows:
The reason of my delay was because I was only just aware of taking action upon my legal rights.
On 1 November 2023, the Applicant sent correspondence to the Commission confirming the reason for the delay in making the Application as follows:
The reasons are that I was not only aware of it late I took action apon [sic] the claim because it was brought to my attention for those amount of days later rather than sooner.
I was quite upset this happened and it took some time to sink the thought of termination through.[5]
In her evidence before the Commission, the Applicant confirmed that she was not aware of the 21-day time period and that she was upset and needed time to work through the thought process.
It is well established that a lack of knowledge or ignorance of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6]
I also do not consider the Applicant being upset and needing time to take stock of the situation is an acceptable or reasonable explanation for the delay. Stress, shock and confusion, in and of themselves, are not exceptional, and the effect of loss of employment, while unfortunate, is not unusual.[7] Furthermore, the Applicant did not contend, or adduce any medical evidence, that the effect of her “dismissal” incapacitated her such to prevent the filing of the Application within the 21-day period.[8]
Accordingly, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[9]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[10]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making of the Application. This factor weighs against a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the Application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time.
In evidence before the Commission, the Applicant agreed that she was not employed by the Respondent, but rather she was employed and paid by Persolkelly.
The Applicant’s evidence was consistent with the following documentary material before the Commission:
· The Persolkelly On-Hire Employment Agreement Confirmation of Assignment which states that the Applicant is a casual employee of Persolkelly and assigns the Applicant work at the Respondent which is identified in the document as a host client of Persolkelly;[11]
· A Persolkelly timesheet which records the days and hours worked by the Applicant pursuant to her assignment with the Respondent;[12]
· A tax invoice issued to the Respondent by a related entity of Persolkelly for the hours worked by the Applicant pursuant to her assignment with the Respondent.[13]
One of the criteria conditioning a person’s entitlement to make an application pursuant to s.365 of the FW Act is that the person has been “dismissed”.[14] The word “dismissed” is defined in s.386 of the FW Act and requires that a person’s “employment” be terminated. A person who is not in an employment relationship cannot be dismissed within the meaning of s.386.[15]
Having regard to the evidence before me, I find that the Applicant was not an employee of the Respondent, and therefore the Applicant is not a person who has been “dismissed” for the purposes of s.365 of the FW Act. This factor weighs strongly against a conclusion that there are exceptional circumstances.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
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
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[16] Having regard to the matters I am required to take into account under s.366(2), 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 under s.366(2).
Even if I was satisfied that there were exceptional circumstances, I would have refused to exercise my discretion to allow an extension of time as the Applicant was not an employee of the Respondent and therefore was not “dismissed”.
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Z. Tragaris, the Applicant.
P. Almond, solicitor for the Respondent.
Hearing details:
2023.
Sydney:
6 December 2023.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Exhibit 1.
[6] Nulty at [14].
[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [15].
[8] Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28]; Manoj Ellikuttige v Moonee Valley Racing Club Inc.[2018] FWCFB 4988 at [29]-[31]; Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37]-[38]; Underwood v Terra Firma Pty Ltd[2015] FWCFB 3435 at [15]-[16]; Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[10] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[11] Exhibit 2.
[12] Exhibit 3, Annexure A.
[13] Exhibit 3, Annexure B.
[14] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54].
[15] John Grass v NSW Chinese Tennis Association Inc[2021] FWCFB 3443 at [11]-[13].
[16] See paragraph [28] above.
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