Alexandra Ali v a2z Early Learning Centre [2020] FWC 2847

1 Fair Work Act 2009 s.394—Unfair dismissal Alexandra Ali v a2z Early Learning Centre (U2020/6952) DEPUTY PRESIDENT DEAN SYDNEY, 1 JUNE 2020 Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. [1] This decision concerns an application by Alexandra Ali (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. [2] The Applicant advised that she became aware on 20 April 2020 that her employment with a2z Early Leaning Centre (the Respondent) had been terminated. Her unfair dismissal application was lodged on 19 May 2020. [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). For a dismissal to take effect, it must be communicated to the Applicant. [4] Taking the commencement of the 21 day period as starting on the date she became aware of her dismissal, the application was filed outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under section 394(3). [5] 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 [2020] FWC 2847 DECISION -- 1 of 5 -- [2020] FWC 2847 2 [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 now consider these matters in the context of this application. Reason for the delay [8] 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.3 [9] The Applicant cited the following as the reason for the delay in lodging the application: “On the 15th April 2020, I contacted my employer in relation to my return to work from my maternity leave. My employer notified me that my employment had been terminated as of 20th March 2019. On the 27th April 2020, I requested from my employer my separation certificate, a legal obligation of my employer. On the 1st May 2020, approximately two weeks after I was notified of my termination, my employer emailed me my separation certificate with the date of employment ceased on the 20th March 2019. As I have previously stated, I have provided evidence (payslip and messages) which demonstrate that I was in fact working on this date up until the 29th of March 2019 before commencing my approved maternity leave with the informed intention of returning to work. As previously explained, the separation certificate was provided to me 2 weeks after I was notified of my termination and the date signed at the bottom of this separation certificate is the 30th April 2020. -- 2 of 5 -- [2020] FWC 2847 3 On the 5th May 2020, I contacted my employer via phonecall notifying her of the incorrect termination date on my separation certificate and kindly asked that this date be fixed. Three days passed and my employer had yet to send me my updated separation certificate. I sent a phone message to my employer on the 8th May 2020 to remind her to send me my separation certificate. She replied with "it has the right date on it as I had to put when employment ceased to go on maternity leave". I replied the same day and said that the date is indeed wrong as I was only notified of my termination this year. I didn't hear back from my employer. So, on the 11th May 2020, I sent her another phone message asking for my updated separation certificate. One week later after not receiving my seperation certificate I decided to contact the Fair Work Commission on the 18th May 2020 and had my application submitted the following day, the 19th May 2020. In summary, the reason for my delay was because I tried to reason with my employer in relation to my return to work from maternity leave and my termination. I also, on multiple occasions, requested a correct copy of my separation certificate so that I can move on, but my employer denied me of that which in turn led to a delayed application for unfair dismissal. Futhermore, I left work to go on maternity leave feeling safe with the knowledge that I will be returning to work due to job security and I was also denied of that. This situation was made more trying and exasperating with the challenging times we all face due to the Corona virus pandemic.” [10] I do not consider this explanation to be an acceptable explanation for the delay. There was no requirement for the Applicant to obtain a separation certificate before lodging this application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [11] The Applicant became aware of the dismissal on 15 April 2020. I consider this factor to be neutral. Action taken to dispute the dismissal [12] The Applicant submitted that she disputed the dismissal by contacting the Respondent to request a separation certificate. I do not consider a request for a separation certificate to constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. -- 3 of 5 -- [2020] FWC 2847 4 Prejudice to the employer [13] 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 [14] The Act requires me to take into account the merits of the application in considering whether to extend time. There is no detailed material before me as to the merits of the application. As a result, it is not possible to make any assessment of the merits and accordingly I consider this criteria to be a neutral consideration. Fairness as between the person and other persons in a similar position [15] 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. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter. Conclusion [16] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, 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. 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 Printed by authority of the Commonwealth Government Printer -- 4 of 5 -- [2020] FWC 2847 5 <PR719793> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] -- 5 of 5 --