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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Kristia Cahill
v
Bstore Pty Ltd T/A Bstore for Birkenstock
(U2014/9591)
COMMISSIONER CLOGHAN PERTH, 24 NOVEMBER 2014
Application for relief from unfair dismissal - jurisdictional objection - out of time.
[1] On 6 October 2014, Miss Kristia Cahill (Miss Cahill or Applicant) made application
to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal
from her former employer, BStore Pty Ltd T/A Bstore for Birkenstock (Employer).
[2] Miss Cahill states in her application that the dismissal took effect on 13 September
2014. The Employment Separation Certificate provided with the application states that the
employment ceased on 14 September 2014.
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[4] For the Commission to have jurisdiction to hear and determine the matter, it is
necessary for the application to be made within 21 days after the dismissal took effect,
pursuant to paragraph 394(2) of the FW Act.
[5] Miss Cahill has not made the application within 21 days after the dismissal took effect.
However, the Commission can allow for a further period for the application to be made (that
is, 6 October 2014), if it is satisfied that there are exceptional circumstances as set out in
s.394(3) of the FW Act.
[6] The relevant legislative provisions are as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[2014] FWC 8177 [Note: An appeal pursuant to s.604 (C2014/7236) was
lodged against this decision - refer to Full Bench decision dated 9 January
2015 [[2015] FWCFB 103] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB103.htm
[2014] FWC 8177
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(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.”
[7] To resolve the question of whether there were exceptional circumstances to allow the
application to be filed on 6 October 2014, I issued Directions to the parties on 9 October 2014
advising that the matter would be determined by written submissions. Having received the
written submission, this is my decision and reasons for decision as to whether there are
exceptional circumstances to allow the application to be filed on 6 October 2014.
CONSIDERATION
[8] I have previously adopted, and do so on this occasion, the meaning of exceptional
circumstances as:
“... a circumstance which is such as to form an exception, which is out of the ordinary,
or unusually, or special, or uncommon. To be exceptional a circumstance need not be
unique or unprecedented, or very rare; but it cannot be one that is regularly, or
routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.
[9] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an
exception, unusual”. Further, “exception” is defined as “something that does not follow the
rule”. The term “exceptional” requires a qualitative examination of the existence of
something against the norm.
[10] The burden lies with Miss Cahill to make out her case that exceptional circumstances
existed to satisfy the Commission that the time for filing the application should be extended.
I now turn to consider those circumstances set out by the Applicant.
Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?
[11] The Applicant states that the reasons for the delay in filing the application fall into two
areas. Firstly, a delay by the Employer in setting out the reasons for her dismissal. Secondly,
difficulties in accessing the Commission’s website.
[12] Miss Cahill asserts that she was dismissed on 13 September 2014.
[13] On 16 September 2014, Mr Edmiston, the Employer’s Managing Director, provided an
email to the Applicant which is titled “Termination of Employment” and commences, “As
discussed with you on Saturday 13 September...”
[2014] FWC 8177
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[14] The email proceeds to set out that during the Applicant’s employment, there had been
a number of issues with Miss Cahill’s performance. The performance issues related to:
a verbal warning due to unacceptable communication with her store staff and other
employees of the Employer;
a written warning;
late attendance at work;
written complaints regarding the Applicant’s customer service; and
specifically receiving a telephone call at 9:40 am on Saturday 13 September 2014
from the Whitfords Shopping Centre enquiring why the Employer’s store had not
been opened. This situation resulted in further events in which the Employer has
questioned the truth of the Applicant’s responses.
[15] On or about 17 September 2014, the Applicant received her Employment Separation
Certificate which states that she was dismissed for unsatisfactory work performance, and
specifically, “poor service and late opening store”.
[16] I find that, if not on the day of her dismissal, the Applicant was aware of the reasons
for her dismissal three (3) days later on 16 September 2014, in an email from the Employer.
In the circumstances, the Applicant’s submission is not a valid reason for a delay in filing the
application within the statutory timeline of 21 days from the date the dismissal took effect.
[17] I now turn to the second reasons for the delay, that is, the Applicant had difficulties
accessing the Commission’s website.
[18] As I have already stated, the Applicant was dismissed on Saturday 13 September
2014. Miss Cahill asserts that 20 days later on Friday 3 October 2014, she attempted to
access the Commission’s website without success. However, it was not until the following
day, Saturday 4 October 2014 did she send an email to the Commission with the opening
words “I cannot access the form online and need to lodge my application urgently”.
[19] Difficulties with accessing a website is not common or rare - unfortunately, they are
an everyday experience. The reason for the delay is not directly related to accessing the
Commission’s website but that the Applicant left making application to the last possible
moment, and then experienced access difficulties. It is true that the Applicant may not have
control over website access difficulties but she does have control over the timing of when to
make an application to the Commission. I find that the Applicant’s access difficulties to the
Commission’s website are not a valid reason for the delay.
[20] For the remainder of the period (16 September - 2 October 2014), the Applicant states
that she was “looking for employment, attending interviews, medical appointments,
Centrelink appointment, seeking appointments and preparing for my application”.
[21] It is almost universally the case that for those who have been dismissed, it is necessary
to seek further employment. To obtain further employment, it is necessary to undertake
numerous “form filling” exercises whether it is job applications or seeking the Newstart
Allowance.
[22] For approximately 16 days, the Applicant attended to matters which, I am sure were
important, however, Miss Cahill failed to address making an application to the Commission
[2014] FWC 8177
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within the statutory timeline. If the Commission sets aside the factual detail of names and
addresses, Miss Cahill’s application consists of 10 paragraphs which did not require much
more knowledge than was available immediately after the dismissal.
[23] Miss Cahill made a choice. That choice was to give priority to other matters. Making
a choice to give priority to other matters, is not out of the ordinary, exceptional, unique,
unusual, rare or uncommon. Making a choice is not exceptional circumstances - it is an
everyday occurrence. In making that choice, the consequences are that Miss Cahill did not
file her application in the Commission within the statutory timeline.
Paragraph 394(3)(b) - when the person first became aware of the dismissal
[24] The Applicant became aware that she was dismissed on Saturday 13 September 2014.
Paragraphs 394(3)(c), (d), (e) and (f)
[25] The Applicant has not addressed the criteria in paragraphs 394(3)(c), (d), (e) and (f) of
the FW Act.
[26] There appears to have been no communication between the parties after 16 September
2014. If the Applicant contested the dismissal after 16 September 2014, she has not made any
submission to this effect.
[27] The Employer does not make any submission concerning prejudice to it as a result of
the late filing of the application.
[28] I have not come to any conclusion regarding the merits of the application and have
adopted a neutral position with respect to this criterion in my assessment of whether there are
exceptional circumstances to allow further time to file the application.
[29] It would appear that the criterion in paragraph 394(3)(f) of the FW Act is not a
relevant consideration. To the extent it is relevant, I have adopted a neutral position with
respect to this criterion.
CONCLUSION
[30] In conclusion, for the reasons set out above, I am not satisfied that exceptional
circumstances existed which led to a delay in Miss Cahill filing her application beyond the
statutory timeline of 21 days after the dismissal took effect. Accordingly, the application
must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
[2014] FWC 8177
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Final written submissions:
Applicant: 22 October and 13 November 2014.
Respondent: 7 November 2014.
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