Annemarie Dixon v Qld Survey Pegs Pty Ltd [2024] FWC 1189

1 Fair Work Act 2009 s.394—Unfair dismissal Annemarie Dixon v Qld Survey Pegs Pty Ltd (U2024/2987) COMMISSIONER WILSON MELBOURNE, 9 MAY 2024 Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed. [1] This decision concerns an application made by Annemarie Dixon (the Applicant), alleging unfair dismissal by Qld Survey Pegs Pty Ltd (Qld Survey Pegs, or the Respondent). The Applicant’s employment ended on 22 February 2024. Her application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on 15 March 2024. [2] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above it may be seen that Ms Dixon’s application was made 1 day outside of the statutory time limit which ended on Thursday, 14 March 2024. [3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of the Applicant’s application. The Respondent objects to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application. [4] The objection was the subject of a hearing before me on Thursday, 9 May 2024. Ms Dixon appeared for herself in the hearing. Qld Survey Pegs was represented by Ms Mariam Noorzai, of Employsure Law. Two written statements were provided for the Respondent by its Managing Director, Mr Edward Bowden. [5] Permission for the Respondent to be represented by a lawyer was granted by me pursuant to s.596(2)(a) of the Act, with me being satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. I was further satisfied it was appropriate in all the circumstances to exercise my discretion and permit representation of the Respondent by a paid agent.1 [6] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional [2024] FWC 1189 DECISION -- 1 of 8 -- [2024] FWC 1189 2 circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion2 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.3 [7] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Ms Dixon’s case and that an extension of time should not be granted for the making of her unfair dismissal application. BACKGROUND [8] Qld Survey Pegs Pty Ltd has two associated entities, QSP Building Pty Ptd and QSP Properties Pty Ltd. [9] Ms Dixon was employed with the Respondent from 18 May 2023 until her dismissal as a Property Trust General Manager. LEGISLATION [10] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act: “394 Application for unfair dismissal remedy (1) (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.” CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT [11] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account six nominated criteria. -- 2 of 8 -- [2024] FWC 1189 3 [12] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows: “[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. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” 4 [13] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.5 [14] In considering whether an extension of time should be granted to the Applicant, I am required to consider all of the criteria in s.394(3), which I now do. 1. The reason for the delay [15] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.6 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.7 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.8 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.9 [16] In the Applicant’s case the relevant period for consideration of an extension of time is that after the last day for a lodgement to be within time, namely Thursday, 14 March 2024 (with the lodgement being on Friday, 15 March 2024). -- 3 of 8 -- [2024] FWC 1189 4 [17] Ms Dixon provides the reason for delay as technological issues experienced with the Commission’s website. She says that on 14 March 2024, she received repeated error messages when attempting to submit her application to the Commission’s Online Lodgement Service: “[o]n 14th March 2024 I continually received out of the ordinary error messages from the Fair Work ombudsman [sic] website. I continued to follow the website directions and made 6 attempts to upload my application.”10 Further she says, “[t]he reason my application was submitted at 2.13pm on the 15th March 2024 is because I kept receiving an error message from the Fair Work Ombudsman website which said “You have no enquiries” everytime I tried to upload my application”.11 [18] In her oral evidence Ms Dixon said that after being dismissed she had made a police complaint about Mr Bowden and that she was living in her car at the time she made the application. She also said that on the day she succeeded in making her application that she had to travel from where she was, meet with the police about her complaint, and then disengage with them and find a location with a good internet signal and then attempt to upload the completed application Form F2. All that meant she did not recommence the lodgement process until around 1 PM Queensland time, which at that time of the year was 1 hour behind Australian Eastern Daylight Time. The time difference is significant only for the reason of noting that the Commission received a valid lodgement from Ms Dixon at 15:13 AEDT. [19] The supporting material provided by Ms Dixon showing the error messages she received about her 14 March lodgement attempts relate to the Fair Work Ombudsman website, not the Commission’s website. It follows that these error messages do not explain the Applicant’s inability to file with the Commission. The Commission’s records though show five lodgement errors on Ms Dixon’s account between 20:36 and 22:55 AEDT. [20] Ms Dixon has also not explained why other methods of lodgement, such as email, post, or telephone, were not explored, other than saying that she completed a Microsoft Word version of the Form F2 Unfair Dismissal Application and Form F80 Fee Waver Application when she encountered the first error message. There is no reason provided as to why the application form could not be submitted by an alternative method.12 [21] Having listened carefully to Ms Dixon’s evidence about her circumstances, what occurred after being dismissed, and the problems she experienced on 14 March 2024 in attempting to lodge an unfair dismissal application, I accept that she tried and failed for unexplained reasons to make an in-time lodgement. Had she taken immediate action to contact the Commission about that situation on 15 March 2024 I would be inclined to accept that as an acceptable explanation for the delay when combined with her domestic factors. However, Ms Dixon did not attempt to phone or email the Commission as soon as it opened on 15 March and took until 15:13 AEDT to succeed in her lodgement. [22] I accept as well that Ms Dixon’s domestic situation and her need to meet with the police before turning to her unfair dismissal application are well beyond the ordinary. However bearing in mind that the Commission requires an acceptable explanation for the whole of the period following the expiry of the statutory time period I do not accept Ms Dixon’s personal circumstances explain the whole of the period from midnight on 14 March to 15:13 AEDT on 15 March 2024. I am not satisfied from her evidence that she had no opportunity within that period to communicate with the Commission that she had attempted but failed to lodge an in- time application. -- 4 of 8 -- [2024] FWC 1189 5 [23] Care should be taken by any person contemplating making an application after the end of their employment about the appropriate application and the applicable time limit. The Commission has publicly available a content rich website in plain language containing procedural advice and highly detailed Benchbooks on all aspects of the relevant jurisdiction. Applications can be lodged by post or delivery in person to a Commission office for individuals who experience difficulty in accessing technology. [24] The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay. Ignorance of the timeframe for lodgement is not an exceptional circumstance.13 [25] In this case, I am not satisfied that there are exceptional circumstances to explain the delay in filing the application. [26] Accordingly, consideration of this criterion does not resolve in favour of the Applicant for the granting of an extension of time for the making of his application. 2. Whether the person first became aware of the dismissal after it had taken effect [27] A termination of employment on the employer’s initiative does not take effect unless and until it is communicated to the employee whose employment is being terminated.14 The Applicant says she was notified of the dismissal on 22 February 2024, the same day it took effect. The Respondent says in its Form F3 Employer Response Form that it notified Ms Dixon of her dismissal on or around 7 February 2024. This is contradicted by the witness statement of Edward Bowden who says on 22 February 2024 he advised Ms Dixon that she was officially terminated effective immediately. [28] As the termination of employment was communicated to the Applicant on or before the day it took effect, this factor weighs against an extension of time being granted for the making of the application. 3. Any action taken by the person to dispute the dismissal [29] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.15 [30] The origins of the criterion in s.394(3) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”16 (underlining added). [31] There is no material before the Commission to indicate the Applicant attempted to contest the dismissal, other than by making the application the subject of these proceedings. The material before me does not lead to a finding that the decision to terminate was being actively contested. -- 5 of 8 -- [2024] FWC 1189 6 [32] Consideration of this criterion therefore does not support a finding of exceptional circumstances. 4. Prejudice to the employer (including prejudice caused by the delay) [33] The delay in the filing of the application is 1 day. The Respondent does not claim that the delay in lodging the application caused it prejudice. [34] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.17 [35] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter is a neutral factor in my consideration. 5. The merits of the application [36] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal. [37] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.18 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.19 [38] The Applicant’s case is that her dismissal was unfair and that she was subjected to an unsafe workplace with threats of violence and abuse directed towards her. [39] The Respondent’s case is that the Applicant was dismissed for poor performance and misconduct. [40] As a result, it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case and each parties evidence on the merits is yet to be tested lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of the Applicant’s unfair dismissal application. -- 6 of 8 -- [2024] FWC 1189 7 6. Fairness as between the person and other persons in a similar position [41] This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.20 This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.21 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.22 [42] No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances. CONCLUSION [43] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by the Applicant. [44] As a result, Ms Dixon’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision. COMMISSIONER Appearances: Ms A. Dixon for herself Ms M. Noorzai for the Respondent Hearing details: 2024. Melbourne (via video conference); 9 May. Printed by authority of the Commonwealth Government Printer < PR774611> -- 7 of 8 -- [2024] FWC 1189 8 1 ERGT Australia v Mr Kevin Govender [2021] FWCFB 268, [48]. 2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [9]. 3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21]. 4 Nulty v Blue Star Group, 2011, 203 IR 1, [13]. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38]. 6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300]. 7 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [22]. 8 Ibid, [40]. 9 Ibid, [41]. 10 Email from Applicant to Fair Work Commission, 29 March 2024. 11 Ibid. 12 See Johnson v Monadelphous KT Pty Ltd [2014] FWC 3734. 13 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]. 14 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496. 15 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300]. 16 Ibid. 17 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16]. 18 Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14]. 19 Haining v Deputy President Drake (1998) 87 FCR 248, [250]. 20 GHD Pty Ltd v Kevin Alan Black [2023] FWCFB 38, [94]. 21 Wilson v Woolworths [2010] FWA 2480, [24] - [29]. 22 Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [10]. -- 8 of 8 --