1
Fair Work Act 2009
s.604 - Appeal of decisions
Sarina Galati
v
Veneto Club
(C2014/8162)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER LEE SYDNEY, 10 APRIL 2015
Appeal against decision [[2014] FWC 7947] of Commissioner Johns at Melbourne on 18
November 2014 in matter number C2014/6091.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision of
Commissioner Johns issued on 18 November 20141 (Decision) in which he declined under
s.366 of the Fair Work Act 2009 (FW Act) to extend time to the appellant, Ms. Sarina Galati,
to file a general protections dismissal application under s.365 of the FW Act. The
Commissioner issued a separate order on the same date giving effect to the Decision.2 The
employer subject to the application is Veneto Club (the respondent).
[2] Ms Galati filed her general protections dismissal application in the Commission on 27
August 2014. In that application she indicated that she received a letter terminating her
employment during a disciplinary meeting held on 25 July 2014. However, during the hearing
the appellant made reference to the Separation Certificate the respondent supplied her with
which specified a later date of termination, 27 July 2014, and a final payslip which referred to
a cessation date of 29 July 2014.
[3] Section 366(1) of the FW Act requires a general protections dismissal application to
be made within 21 days after the dismissal took effect or within such further period as the
Commission allows under s.366(2). If the dismissal occurred on 25 July 2014, the application
was lodged 12 days outside of the 21 day time limit. If the dismissal occurred on 29 July
2014, the application was filed 8 days out of the 21 day time limit. Under either scenario, it is
necessary for the appellant to obtain an extension of time under s.366(2) in order to make her
application.
1 [2014] FWC 7947
2 PR557890
[2015] FWCFB 1830
REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 1830
2
[4] Permission to appeal was granted in this matter, by a Full Bench of the Fair Work
Commission (the Commission) on 30 January 20153. In that decision the Full Bench as it was
then constituted determined, “[w]e are satisfied that the appellant has established an arguable
case of error in relation to the decision subject to appeal and on that basis we grant permission
to appeal”.4
[5] Directions were subsequently issued and a Full Bench as presently constituted was
formed to hear the appeal. A hearing was conducted on 27 February 2015. At the hearing, the
appellant represented herself. Ms. Pels appeared for the respondent (permission to appear
having previously been granted to her by the Full Bench). At the conclusion of the hearing,
the Full Bench issued an ex tempore decision. An edited version of that decision follows here.
“We have determined that the appellant has successfully demonstrated that she was
denied procedural fairness in the proceedings before the Commissioner, due, we
emphasise, to no fault of the Commissioner. A situation arose whereby at the time the
appellant was asked to advise whether she consented to a hearing on the papers, she
was not aware of the fact that the respondent had made submissions contradicting or
opposing much of what she said in her own explanation for why her application was
filed late.
That meant that the appellant was not in a properly informed position when she
advised the Commissioner that she would consent to the matter being determined on
the papers. The test for a denial of procedural fairness is whether the denial meant that
the person affected was denied the opportunity of a successful outcome, not whether
the person necessarily would have succeeded in their application if procedural fairness
had been afforded. We consider that in effectively being denied the capacity to make
an informed decision about whether to have a hearing or have the matter determined
on the papers, therefore effectively not being in a position to make a proper decision
about whether to be able to put further information in a hearing, the appellant was
denied the opportunity of a successful outcome and therefore denied procedural
fairness.
On that basis alone, it is necessary to uphold the appeal. That makes it necessary for
us to rehear the application for an extension of time. We are, as a result of the further
submissions of the parties and the two hearings that have occurred, that is, today’s
hearing and the hearing in relation to permission to appeal, in possession of a deal of
information which was not before the Commissioner as a result of the process which
was adopted at first instance.
On the basis of that additional information, we are satisfied that exceptional
circumstances exist to justify the extension of time and that in the exercise of our
discretion, the extension of time should be granted. We will issue our full reasons in
relation to our decision to extend time in due course, but only if either party requests
us to issue such reasons.
3 Galati v Veneto Club [2015] FWCFB 521
4 Galati v Veneto Club [2015] FWCFB 521 at [12]
[2015] FWCFB 1830
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We will remit the matter to Commissioner Lee for the purpose of the conciliation
process required by the FW Act. So on that basis, the appeal is determined and the
matter is remitted to Commissioner Lee”.
[6] Subsequent to the hearing, the respondent’s representative requested that full reasons
be issued. What follows are those full reasons for the decision already made by the Full Bench
on 27 February 2015.
The date the dismissal took effect
[7] There was some contest on the facts as to the date the dismissal took effect.
Commissioner Johns determined in the Decision that it was common ground between the
parties that the appellant was issued with a termination letter on 25 July 2014. In the hearing
before us, the appellant advised that she did receive the letter of termination, but that she was
not clear as to what the actual date of termination was, given that the letter of termination
referred to payment in lieu of notice of two weeks.5 It was this factor combined with the
Separation Certificate and final payslip that referred to termination dates of 27 and 29 July
2014 respectively which forms the basis of the appellants’ assertion that she was unsure about
when the dismissal took effect.
[8] However, the letter of termination dated 25 July 2014 and handed to the appellant on
that day was clear as to the date the dismissal took effect, stating;
“Your termination is effective as of today, the 25/07/2014. We confirm that the Club
does not require you to work out your notice period and accordingly you will be paid
in lieu of notice for 2 weeks.”
[9] A dismissal does not take effect unless and until it is communicated to the employee
who is being dismissed.6 Where payment in lieu of notice is made the dismissal usually takes
effect immediately.7
[10] It is not in dispute that the appellant received the letter of termination on 25 July 2014
and that payment in lieu of notice was given. The letter of termination is clear in its terms that
the termination took effect immediately. While the separation certificate and final payslip
referred to different termination dates, this would appear to be an error. Having considered the
evidence, we are satisfied that the dismissal took effect on 25 July 2014.
[11] As the dismissal took effect on 25 July 2014, the appellant was required to lodge her
application with the Commission by 15 August 2014. The application was lodged on 27
August 2014 and was therefore 12 days outside the 21 day time limit for making the
application.
The law to be applied
5 PN136
6 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C,
21 November 2000) Print T3496 at [24]
7 Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at 355; Akee v Link-up (Queensland) Aboriginal Corporation [2015] FWC
555 at [10]-[11]
[2015] FWCFB 1830
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[12] Section 366(2) of the FW Act sets out the circumstances in which the Commission
may grant an extension of time as follows:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.8 A decision as to whether to extend time under s.366(2) involves the
exercise of a discretion.9
[14] Subsection 366(2) of the FW Act requires that, in deciding whether to grant an
extension of time, the Commission must be satisfied that there are exceptional circumstances
taking into account a number of factors. In considering what are exceptional circumstances
we have adopted the approach of Vice President Lawler in Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Australian Postal Corporation10, where it was stated;
“In summary, the expression “exceptional circumstances” 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
8 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
9 Hart v Damien John Pedder & Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust [2014] FWCFB 3270 at
[8]
10 [2007] AIRC 848
[2015] FWCFB 1830
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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.”11
Consideration of the factors set out in section 366(2) of the FW Act
Subsection 366(2)(a) - the reason for the delay
[15] There must be an acceptable reason for the delay.12 The appellant provided a number
of reasons for the delay in filing the application. In summary these are as follows.
Contacting authorities
[16] From 28 July 2014, 3 days after the dismissal, through until 8 August 2014, the
appellant made numerous attempts to contact the Victorian Registrations and Qualifications
Authority (VRQA). Her reasons for doing so were related to her belief that an apprentice
could not be terminated without first going through the process with the VRQA. The
appellant was seeking to find out from VRQA whether the termination was valid from their
perspective because “...they have processes where they can order that I get reinstated or they
can uphold the termination. So for me, that was priority because it could be dealt with through
that avenue, then I wouldn’t have to be here putting in a general protections application”.13
The appellant also gave evidence that she was at that time also pursuing MEGT (her
apprenticeship provider) and pursuing her trade school for information to assist in disputing
the dismissal. The appellant also gave evidence that she contacted the Fair Work Ombudsman
(the FWO) soon after the dismissal. She claims that the FWO told her to call her
apprenticeship provider, Worksafe and a telephone legal advice service the appellant could
not name. She said that she “...called these places and they sent me elsewhere and I just went
in a circle....”14
[17] The respondent submits that these reasons should not have prevented the appellant
from attending to her application within the time period.
Medical issues
[18] The appellant gave evidence that there were a number of medical issues impacting on
her. These included Chronic Fatigue Syndrome (CFS). There was a medical certificate dated 4
July 2014 supplied that indicated that the appellant had been suffering from CFS and Irritable
Bowel Syndrome for two years. There was also evidence given of a gastric bacterial infection
that was treated with an antibiotic. The appellant subsequently had a severe adverse reaction
to the antibiotic administered, including breathing problems and a serious rash. The allergic
reaction commenced on the Saturday 9 August 2014.
11 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Australian Postal Corporation [2007] AIRC 848 at [10]
12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
13 PN72
14 PN149
[2015] FWCFB 1830
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Motor vehicle accident
[19] On 10 August 2014, the appellant was involved in a motor vehicle accident. Her
insurer determined the appellant’s car was a write off. The appellant gave evidence that the
accident was relevant because she lost her mobility, as a result of losing her car. Further, there
were demands on her time as a result of subsequent communications with the insurance
company, the driver of the other car involved in the collision and tow truck drivers. Her
evidence was as follows;
“...the main thing was that it took away my mobility and that with the symptoms that I
was experiencing from the medication, it made it almost impossible for me to function.
I wasn’t in a state where I could go on the bus and go wherever to try and make my
application”.15
[20] The respondent submits that the fact that the appellant could continue to deal with
insurance companies during the time period is inconsistent with her being incapacitated and
her claim of being unable to deal with the lodging of the general protections claim at that
time.
Attempts to lodge
[21] The appellants’ evidence is that she first attempted to lodge the application on 20
August 2014 via e-filing on the Commission’s website. The appellant does not have access to
the internet at her home; however she could access the internet at her friend’s house. She
registered with the e-filing system but she “...couldn’t get anything to attach”.16
Consequently, her attempt to lodge her application at that time was unsuccessful. The
appellant called the Commission the next day and was advised that she could submit the
application by email. She was given an email address, but gave evidence that the first part of
the email address was missing, so the email was not successfully sent. However, the appellant
stated that she did not realise that the email had not been successfully sent until the end of that
week.
[22] At the start of the following week, the week commencing 25 August 2014, the
appellant phoned the Commission again and obtained the correct email address. The
application was lodged two days later on 27 August 2014. The appellant submitted at the
hearing before us that this further delay was because she was unable to attend the Commission
in person as a result of her transport difficulties, she could not get assistance from friends and
family as most are not literate and do not speak English, that she has a limited network of
friends as a result of the type of employment she is engaged in and that she relied on one
friend with access to the internet. The appellant gave evidence that 27 August 2014 was the
next day the appellant was able to access that person’s internet.
Conclusion as to reason for delay
[23] Having considered the extensive range of circumstances referred to above, we are
satisfied that the appellant made efforts in the first instance to try and dispute her dismissal
through the VRQA. There is then a combination of circumstances impacting on the appellant
15 PN126
16 PN165
[2015] FWCFB 1830
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which considered in their totality, provide an acceptable reason for the 5 day delay, that is up
until 20 August 2014 when the appellant first attempted to lodge her application. There is then
a further delay of seven days for the filing of the application. We are also satisfied with the
explanation provided as to the difficulties faced by the appellant in submitting the document
on 20 August 2014 and difficulties subsequent to that resulting in the application being lodged
on 27 August 2014. Having considered all of the evidence we are satisfied that there is an
acceptable reason for the delay. Our consideration of this matter weighs in favour of granting
the application.
Subsection 366(b) - any action taken by the person to dispute the dismissal
[24] In Brodie-Hanns v MTV Publishing Limited17, action taken by the employee to contest
the dismissal, other than lodging an application, was treated as favouring the grant of an
extension of time. While the decision referred to determined an unfair dismissal application,
the same principle is relevant to a consideration under s.366 of the FW Act. The action taken
by the appellant to dispute the dismissal through the VRQA already discussed is a relevant
consideration in this matter. It was clear from the submissions of the appellant before us that
she viewed her recourse to the VRQA as the relevant place to dispute the termination, given
her view that the termination did not comply with the rules of the VRQA. The appellant gave
evidence at the appeal hearing that on the day her employment was terminated, she disputed
her dismissal. The letter of termination in evidence is marked that the appellant refused to
sign it. Further, the appellant submitted that she asked the respondent if she could have time
to reflect on the matters raised and prepare a response and was told that would not be
accepted.
[25] We also have taken into consideration the evidence given by the appellant before us
that she made enquiries with the FWO soon after the termination as to how to seek a remedy
for the dismissal.
[26] The respondent sought to draw a distinction between raising the issues with the VRQA
and not raising any issues with the respondent about the date that her dismissal was to take
effect.18 However, this does not change the fact that the appellant did take steps to dispute the
dismissal and we are satisfied that the appellant took action soon after the dismissal to dispute
the termination. Our consideration of this factor weighs in favour of granting the application.
Subsection 366(c) - prejudice to the employer (including prejudice caused by the delay)
[27] The delay in the filing of the application is 12 days. The respondent does not claim
that the 12 day delay in lodging the application caused it prejudice, other than the additional
time and expense objecting to the extension of time.19 The absence of prejudice is itself an
insufficient basis for granting an extension of time, and in the circumstances of this case, we
regard this factor as neutral.
Subsection 366(d) - merits of the application
17 (1995) 67 IR 298 at 299-300
18 PN215
19 Outline of Submissions in opposition to an extension of time for the late lodgement of the application, filed by the
Respondent, 8 October 2014 at [10]
[2015] FWCFB 1830
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[28] The adverse action taken against the appellant was the dismissal. The appellant claims
that the respondent took the adverse action in contravention of a number of sections of the
FW Act, specifically: ss. 340, 343, 344, 345, 351, 352, 354, and 355. The respondent disputes
the allegations.
[29] The respondent submits that the application is not highly meritorious and that the
appellant was dismissed for repeatedly failing to attend or was late in attending her school or
work. The letter of termination sets out various dates that the appellant was allegedly late for
work or school. The appellant does not dispute that she was late on occasions but this was
partially related to her illness. It is noted that the appellant sustained a workplace injury on 17
July 2014, one of the days she allegedly breached the workplace policy in terms of lateness.
There is a medical certificate showing that she was unfit to work on 18 and 19 July 2014, the
two days following the injury. Her employment was terminated 6 days later on 25 July 2014.
[30] When determining an extension of time, the Commission should not embark on a
detailed consideration of the substantive case.20 Having considered the material, we do not
think the application is without merit. We consider this factor a neutral consideration.
Subsection 366(e) - fairness as between the person and other persons in a like position
[31] There are no particular considerations relevant to this criterion.
Conclusion
[32] Having considered the relevant factors we are satisfied that there is an acceptable
reason for the delay. This is a case where there is in evidence a combination of ordinary
factors some of which individually may not be particularly significant. However, when those
factors are taken together they can be seen as exceptional. Given that the other factors are
either neutral or weigh in favour of granting the application, we are satisfied taking into
account all of those matters that there are exceptional circumstances which warrant
consideration of whether to exercise the discretion to allow a further period within which the
appellant’s s.365 application may be made.
[33] We are not aware of any discretionary consideration that would weigh against the
exercise of the discretion and having concluded that there are exceptional circumstances we
are persuaded to exercise the discretion to allow the appellant a further period in which to
lodge her application.
[34] Accordingly, we allow the appellant until 27 August 2014 to make an application
under s.365 of the Act. We order accordingly.
VICE PRESIDENT
20 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421
at [14]
OF THE FAIR WORK MISSION THE
[2015] FWCFB 1830
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Appearances:
S. Galati representing herself
O. Pels of Service Industry Advisory Group (Legal) Pty Ltd for the respondent
Hearing details:
2015.
Melbourne:
February 27.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562095
