Amanda Smith v Sunrise Operations Pty Ltd [2022] FWC 105

1 Fair Work Act 2009 s.394—Unfair dismissal Amanda Smith v Sunrise Operations Pty Ltd (U2021/11758) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 21 JANUARY 2022 Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. Introduction [1] This decision concerns an application by Ms Amanda Smith (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). [2] The termination of the Applicant’s employment with Sunrise Operations Pty Ltd (Respondent) took effect on 24 November 2021. The unfair dismissal application was lodged on 16 December 2021. [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 15 December 2021. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). [4] The Act allows the Commission to extend the period within which an unfair dismissal application 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 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. [2022] FWC 105 DECISION -- 1 of 6 -- [2022] FWC 105 2 [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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. [6] Section 394(3) 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) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [7] 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. I will now consider these matters. Reasons for the delay [8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4 [9] 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 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 the applicant’s favour, however all of the circumstances must be considered.5 [10] The Applicant provided the following written explanation for the delay in lodging her application: 3 Long v Keolis Downer [2018] FWCFB 4109 at [40] 4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31] 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] -- 2 of 6 -- [2022] FWC 105 3 “My mental health was effected by working under Susan Price at Sunrise Supported Living. When I received my letter of dismissal it had a severe impact on my mental health. I went into a severe state of depression to which I found it very hard to function or even get out of bed. I was sleeping all day and unable to even do the basic daily chores. This also had a negative impact on my home life and relationship. I was in a constant state of immense emotional duress. I was constantly anxious on whether to make the application and what to say as I have never been through anything like this before. I then decided to make the application as it was morally the right thing to do. Under these circumstances I apologise, I did not realise I was a day late with the application. I sincerely hope you understand.” [11] At the hearing of the application for an extension of time, the Applicant gave oral evidence to the following effect:  The Applicant commenced preparing her unfair dismissal application about two or three days before she lodged it on 16 December 2021. When the Applicant commenced preparing her application she found out that she had 21 days from her dismissal to lodge it in the Commission. The Applicant miscalculated the 21 day period and believed that it concluded on the day she lodged her application (16 December 2021).  The Applicant could not explain why her unfair dismissal application is dated 7 December 2021 or why her partner’s name, Mr Jake Lang, appears on the final page of the application.  The Applicant did not see a doctor at any time in the period from her dismissal until she lodged her application in the Commission on 16 December 2021. The Applicant did, however, speak to her mother in law, who is a registered nurse, and continued to take the medication she had been taking for some time to treat her anxiety condition.  The Applicant initially gave oral evidence that (a) she only left her house in the period between her dismissal on 24 November 2021 until she lodged her application in the Commission on 16 December 2021 to buy groceries and (b) she started her new job after she lodged her application in the Commission. Later, in answer to questions from the Respondent, the Applicant gave oral evidence that she commenced a new job in a deli, working about 17 hours per week, on 5 December 2021. [12] The Applicant effectively gave two reasons for lodging her application one day late. First, she miscalculated the 21 day period. Secondly, she suffered from severe anxiety following her dismissal. As to the first reason, miscalculating the 21 day period is not unusual and does not provide an acceptable or reasonable explanation for the delay. As to the second reason, I accept that the Applicant has suffered from anxiety for some time and her levels of anxiety were heightened following her dismissal. However, I do not accept that the Applicant’s levels of anxiety were such that she had no ability or capacity, or a significantly diminished ability or capacity, to prepare and lodge her unfair dismissal application within 21 days of her dismissal. It is not the case that the Applicant was incapable of leaving her house during that period. The Applicant was well enough to work about 17 hours a week in her new job in a delicatessen from 5 December 2021. Having regard to all the circumstances, I do not consider the matters relied -- 3 of 6 -- [2022] FWC 105 4 on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. [13] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 16 December 2021 weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [14] The Applicant was aware of her dismissal on the day it took effect. The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration. Action taken to dispute the dismissal [15] The Applicant did not suggest that she took any action to dispute her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. Prejudice to the employer [16] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [17] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available. [18] The Applicant contends that she was unfairly dismissed in circumstances where she had to leave work because she felt unwell and her temperature was above the New South Wales health guidelines. The Applicant says that she tried, without success, on a number of occasions to contact her manager before leaving work on 20 November 2021. The Applicant also says that she informed the kitchen manager and the nurse before leaving work on the day in question. -- 4 of 6 -- [2022] FWC 105 5 [19] The Respondent claims that the Applicant and her partner, who also worked for the Respondent, walked out of work on 20 November 2021 without informing anyone. [20] Although the outcome of the Applicant’s unfair dismissal case would depend on the resolution of contested facts, I am of the view that the Applicant has an arguable case that her dismissal was harsh, unjust and/or unreasonable. In all the circumstances, I consider the merits of the Applicant’s claim to provide some weight in favour of her application for an extension of time. Fairness as between the person and other persons in a similar position [21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. [22] 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 [23] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging her application and although the Applicant has an arguable case that her dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon. [24] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. DEPUTY PRESIDENT Appearances: Ms A Smith, for the Applicant Mr P Greenup, for the Respondent Hearing details: -- 5 of 6 -- [2022] FWC 105 6 2022. Newcastle (by telephone): January 20. Printed by authority of the Commonwealth Government Printer <PR737652> -- 6 of 6 --