Zorica Racic v Delron Cleaning Pty Ltd

[2020] FWC 5526

[2020] FWC 5526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zorica Racic
v
Delron Cleaning Pty Ltd
(U2020/11623)

DEPUTY PRESIDENT BEAUMONT PERTH, 22 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Ms Racic applied for an unfair dismissal remedy having been dismissed from Delron Cleaning Pty Ltd (Delron) on 13 July 2020. She lodged her unfair dismissal application with the Commission on 27 August 2020, some 24 days outside of the statutory time limit. Delron objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Ms Racic’s application was made out of time. However, for Ms Racic’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[4] The issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[5] Ms Racic advanced several reasons why I should find that there were exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

BACKGROUND

[6] Ms Racic commenced her position with Delron on 1 October 2014.

[7] Over the period of 15 June 2020 to 26 June 2020, it was alleged that Ms Racic had engaged in conduct that constituted sexual harassment and unacceptable workplace behaviour. Such conduct was said to have included coaching another worker in the use of unacceptable and offensive sexualised language, which was translated into Serbian, and was thereafter directed toward a colleague (who also spoke Serbian). That colleague reported both Ms Racic and the other worker, notwithstanding that Ms Racic advised the complainant not to lodge the complaint as the complainant would lose her employment.

[8] Ms Racic notes that the conduct was a ‘joke’ and that there was a friendship between her and the complainant (who purportedly lived next to her). Ms Racic acknowledges that the joke was inappropriate however, says that the other worker involved did not lose his position in the company that he worked for.

[9] Ms Racic gave evidence that after her dismissal she fell into depression and that she was still in a state of depression and was unwell. Ms Racic said she felt unwell. As part of her evidence Ms Racic relied upon a referral letter that had been purportedly prepared by her General Practitioner for, and provided to, a Ms Judith Evans (presumedly a psychologist) on 18 August 2020. That referral letter detailed that Ms Racic’s presenting problem was ‘under [sic] alot [sic] of mental stress after losing [sic] her employment due some misunderstandings [sic] at her workplace, needs counselling as she is not coping well.’ A ‘GP Mental Health Care Plan’ dated 18August 2020, prepared by the same General Practitioner, listed three problems of diagnoses – depression, anxiety and work stress.

[10] Ms Racic said that English was not her first language and she had nobody to help her with her application. However, during the course of the hearing, Ms Racic disclosed that whilst working for Delron she had been working for another employer. Ms Racic next disclosed that between the time of her dismissal and filing her unfair dismissal application she had continued to work for the other employer. Further, it was the case that she had learnt from a person that worked for her other employer that she could ‘appeal’ Delron’s decision to dismiss her. Ms Racic also gave evidence that her friends had contacted ‘Fair Work’ some four weeks prior to her making the application but none of their phone calls were answered.

[11] Mr Racic stated that she was unaware that she had been unfairly dismissed and could do something about it.

[12] Regarding her unfair dismissal application (form F2), Ms Racic had marked that she did not need an interpreter. However, when asked again whether the Commission could provide an interpreter to assist, Ms Racic informed the Commission that a family member would support her.

EXTENSION OF THE 21-DAY PERIOD

[13] Consideration turns to whether to extend the 21-day period within which Ms Racic’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 2

[14] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 3 Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[15] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 4 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 can be considered exceptional.5

[16] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, the Full Bench provided clarification regarding the assessment of exceptional circumstances. 6 While the Full Bench considered s 366(1), the observation remains relevant here:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 7

[17] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

The reason for the delay

[18] The Commission takes into account whether Ms Racic has provided a credible reason for the whole of the period that her application was delayed. 8 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.9 It does not include the period from the date of the dismissal to the end of the 21-day period. However, importantly the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.10

[19] In Pottenger v Department of Caffeine T/A Two Feet First, 11 the Deputy President observed that the 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,12 or a reasonable explanation.13 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.14

[20] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 15 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.16

[21] Ms Racic’s dismissal was effective as of 13 July 2020. To comply with the statutory timeframe in s 394(2), her application for unfair dismissal would have to be filed by 3 August 2020.

[22] Ms Racic gave evidence that she was depressed following her dismissal. The evidence she provided evinced a mental health care plan and referral letter from her General Practitioner dated 18 August 2020.

[23] Notwithstanding the difficulties Ms Racic stated she faced in the period following her dismissal, most notably stress and depression arising from the loss of her job, there is no direct evidence which shows that in the period of 13 July 2020 to 17 August 2020, Ms Racic had taken steps to address her mental health. Ms Racic stated that she had seen the General Practitioner during that time but did not obtain a medical certificate.

[24] It was however evident that any health incapacity Ms Racic may have been afflicted by during the period between her dismissal and making the unfair dismissal application, did not render her unfit for work with her other employer.

[25] While I am sympathetic to the Ms Racic’s mental condition, I am not satisfied that this reason constitutes an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. No medical certificate has been provided, and the documentation that has does not disclose that Ms Racic was not fit for work or indicate that she was otherwise unable to function normally or was unable to complete simple daily tasks. I note that the relevant application form, available from the Commission, is simple and straightforward and extensive guidance is available on the Commission’s website as to the lodgement of such an application, including by lodgement over the phone. On the material available to the Commission, I am unable to conclude that the applicant was incapable of filing an unfair dismissal application. Perhaps more importantly, there was no medical evidence, general or otherwise, as to why the applicant could not function normally in the days preceding and post the statutory time limit.

[26] The evidence in this case concerning Ms Racic’s level of incapacity during the period up to 18 August 2020, and thereafter following her appointment with her General Practitioner, is insufficient in my view, whether considered alone or in combination with the other reasons relied on by her, to give rise to a finding that her difficulties were out of the ordinary course, unusual, special or uncommon. This is particularly the case, when, by her own evidence she was working for another employer during this time.

[27] It was submitted that Ms Racic was not aware of her rights to make an unfair dismissal application and spoke English as a second language.

[28] I do not accept the proposition that the Ms Racic was unaware of her legal rights as constituting an ‘exceptional circumstance’ within the meaning of the Act. An applicant’s lack of knowledge of their legal rights does not of itself, constitute an ‘exceptional circumstance’. 17

[29] Legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission.

[30] Regarding Ms Racic’s evidence that she speaks English as a second language, I note that a language barrier is not a factor that warrants special consideration. The Fair Work Ombudsman website provides a link that allows for the website to be translated into different languages - Serbian being one of those languages. Furthermore, Ms Racic had the opportunity to nominate a representative (legal or otherwise) to assist her in the preparation of her unfair dismissal application. The Commission provides a number of means by which an unfair dismissal application can be lodged. These various methods mitigate language barriers experienced by applicants from non-English speaking backgrounds. In addition to electronic lodgement, an unfair dismissal application can also be made by phone: Fair Work Commission Rules 2013 Rule 9.

[31] I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. I am not satisfied that Ms Racic has made out an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Whether Ms Racic became aware of the dismissal after it took effect

[32] At all material times from 13 July 2020 until the date the unfair dismissal application was made, Ms Racic knew that she had been dismissed – she conceded as much.

Action taken to dispute the dismissal

[33] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 18 Ms Racic took no action to dispute her termination of employment during the statutory timeframe. I do not consider that this weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[34] I cannot identify any particular prejudice that Delron would accrue if an extension of time were to be granted. Delron spoke of having already recruited someone for Ms Racic’s role, a step it may not have taken had the application been made in the requisite time-frame. However, I do not consider this prejudices Delron. Within the jurisdiction sits the remedies of compensation and reinstatement. Reinstatement is not excluded simply because another employee has been recruited to a role. Similarly, Delron’s recruitment of another employee does not prejudice Delron regarding this case. The absence of prejudice is not itself a factor that would warrant the grant of extension of time. I therefore consider this to be a neutral factor in the present case.

Merits of the application

[35] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[36] In Kornicki v Telstra-Network Technology Group, 19 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 20

[37] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 21

[38] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time was granted and the matter proceeded. However, I am unable to assess the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[39] In Morphett v Pearcedale Egg Farm, 22 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. 23

[40] My attention has not been drawn to other persons in a position similar to that of Ms Racic. I am satisfied that the issue of fairness as between him and other persons in a similar position is not a relevant consideration in this matter, and is therefore a neutral factor in
determining whether to grant an extension of time.

Conclusion

[41] Having considered the matters referred to in paragraphs [18] – [30] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Racic’s application to be made.

[42] This is particularly the case when there is no satisfactory explanation for the delay in making the application. In this respect, the totality of the evidence is insufficient to ground a finding that Ms Racic’s circumstances were out of the ordinary course, unusual, special or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.

The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order 24 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms. Zorica Racic, Applicant
Mr. Brett Harwood for the Respondent
Ms. Danielle Ryan for the Respondent

Hearing details:

2020;
Perth (by telephone);
October 20.

Printed by authority of the Commonwealth Government Printer

<PR723615>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 3   [2011] FWAFB 975 [15].

 4 Ibid [13].

 5   Ibid.

 6   [2018] FWFB 901.

 7   Ibid.

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 9   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 11   [2018] FWC 3403.

 12   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 13   Roberts v Greystanes Disability Services; Community Living [2018] FWC [16].

 14   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 15 Ibid [39].

 16   Ibid.

 17   Nulty at para [14].

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 19   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay.

 20   Ibid.

 21   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 22   [2015] FWC 8885.

 23 Ibid [29].

 24   PR723759.