1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Joan Blake
v
Menzies Aviation (Ground Services) Pty Ltd T/A Menzies Aviation
(U2016/3647)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 APRIL 2016
Application for relief from unfair dismissal; application made outside of the time prescribed;
whether there are exceptional circumstances; whether discretion to extend should be
exercised; extension of time refused; application dismissed.
[1] This is an edited version of the decision delivered ex tempore and recorded in
transcript on 24 March 2016. Ms Blake (Applicant) has made an application under s.394 of
the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant commenced her
employment with Menzies Aviation (Ground Services) Pty Ltd t/a Menzies Aviation
(Respondent) on or about 7 August 2006.
[2] The Applicant was employed in the position of Passenger Services Supervisor at the
time of her dismissal. The Applicant's employment with the Respondent ended, with effect,
from 7 December 2015, at which time the Applicant tendered her resignation by email. The
Applicant says that the resignation was given under circumstances where she felt she had no
choice but to resign because of the Respondent’s conduct in its dealings with her, and the
deleterious effect that it was having on her health and wellbeing.
[3] The Applicant’s application was lodged on 7 January 2016. Applications for an unfair
dismissal remedy must be made within 21 days after the date on which the dismissal took
effect.1 As the date of termination, by reason of the resignation tendered, was 7 December
2015, the Applicant’s application should have been lodged in the Fair Work Commission
(Commission) by no later than 29 December 2015, and that is taking into account that 28
December 2015 was a substitute public holiday for Boxing Day. The application was
therefore lodged outside of the prescribed time limit, which is contained in s.394(2) and was,
in effect, nine days late.
[4] The Act allows the Commission to consider extending the period within which an
application for an unfair dismissal remedy may be made, but the exercise of that discretion
will only be considered if the Commission is satisfied that there are exceptional circumstances
which would warrant allowing a late application.2
1 s.394(2)(a) of the Fair Work Act (2009).
2 s.394(3) of the Fair Work Act (2009).
[2016] FWC 1974
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 1974
2
[5] Before I deal with the evidentiary matters and the specific matters that I need to take
into account I should, for the benefit of the parties, say a few things about the principles that
are to be applied in considering whether I should exercise my discretion to extend time. As is
evident, by the text of s.394 of the Act, the statute allows me to extend or allow a further
period within which an application may be made, but only if first satisfied that there are
exceptional circumstances.
[6] There are a number of matters which I need to take into account in deciding whether
or not there are exceptional circumstances and these are: the reason for the delay, whether the
person, that is the applicant, first became aware of the dismissal after it took effect, any action
taken by the person, that is the applicant to dispute the dismissal, any prejudice that might be
caused to the Respondent, including prejudice caused by the delay, the merits of the
application and fairness as between the applicant and other persons in a similar position.
[7] It is clear, from the structure of s.394(3) in which those considerations are contained,
that each of these matters need to be taken into account in deciding whether or not there are
exceptional circumstances. Individual matters might, on their own or viewed in isolation, not
have any particular significance, but may, when viewed collectively or cumulatively, show
that there are exceptional circumstances and so, it is necessary not only to consider the
matters individually, but to consider them collectively and ask whether, collectively, the
matters that need to be taken into account show that in a particular case there are exceptional
circumstances warranting the consideration of the exercise of the discretion to extend time.
[8] ‘Exceptional circumstances’ is not a phrase that is defined in the Act, but generally it
carries its ordinary meaning. That is, they are circumstances that are out of the ordinary
course, that are unusual, special, or uncommon. However the circumstances themselves do
not need to be unique or unprecedented nor do they need to be very rare.
[9] I will turn now to consider the particular matters that are set out in s.394(3), first, as to
the reason for the delay. It is well established in this tribunal that when considering the reason
for the delay, the explanation given for the delay must be a credible or acceptable
explanation. The applicant needs to provide a credible reason or an explanation for the whole
of the period of the delay.
[10] In this case, the Applicant's principal submission was that her medical condition was
such that it did not allow her to or prevented her from, making an application within the time
prescribed. In support of that submission, the Applicant relies upon medical evidence
contained in a certificate given by Dr Heena Choksey, dated 18 February 2016, together with
extracts from medical notes taken by various of the Applicant’s treating physicians between
15 May 2013 and 1 December 2015.3
[11] Dr Choksey gave evidence in the proceeding and it is clear from her evidence that
there was no medical consultation with the Applicant at any time following the termination of
the Applicant's employment or the date on which the Applicant lodged her application,
outside of the prescribed time. Consequently, the assertions made in the medical report, as
conceded by the doctor, that the Applicant was unable to lodge an unfair dismissal application
3 Medical certificate in relation to Ms Blake dated 18 February 2016 together with extracts from medical notes taken by
various of the Applicant’s treating physicians between 15 May 2013 and 1 December 2015.
[2016] FWC 1974
3
within the timeframe prescribed, due to a medical condition, are not supported by any
examination or observation made at the relevant time. As a consequence, little or no weight
can be given to that medical evidence because it simply does not support a conclusion that the
Applicant was unable, because of a medical condition, to lodge her application within the
time prescribed.
[12] It is also clear, from the answers given by the Applicant, in response to questions from
me, that the Applicant was unsure about whether she wanted to have anything to do with the
Respondent and took some time to reflect on whether she would lodge an application, only
making a decision to lodge an application some time after 26 December 2015.
[13] In the circumstances, I am not satisfied that there is a credible explanation for the
delay, or the whole of the period of the delay, and in those circumstances that is a factor that
weighs against the Applicant.
[14] As to the question of whether the Applicant became aware of her dismissal after it
took effect, it is clear that the Applicant became aware of the dismissal on the day it took
effect since she was the initiator of the termination of her employment, albeit, as she says,
under circumstances which she feels that she had no choice but to bring her employment to an
end. As a consequence of that, the Applicant had the benefit of the full period of 21 days
within which to lodge the application, so that is a factor which weighs against the Applicant
in this case.
[15] As to any action taken by the Applicant to dispute her dismissal, the Applicant
indicated that she did not take any step to dispute her dismissal, however the Respondent,
through Ms Priolo, alerted me to the fact that there was a conversation between Ms Priolo and
the Applicant, on or about 15 December 2015, that is after the dismissal took effect, during
which the Applicant told Ms Priolo that she was going to consult ASU lawyers, it appears,
about the termination of her employment. That is a sufficient basis for me to conclude that
there was at least some step taken by the Applicant to dispute her dismissal, and in those
circumstances that is a factor that weighs slightly in favour of the Applicant in this case.
[16] As to prejudice, the Respondent properly conceded that it will suffer no prejudice if an
extension were granted. The mere absence of prejudice is not in and of itself a factor that
would warrant the grant of an extension of time. I am prepared to weigh the absence of
prejudice in favour of the Applicant, in this case.
[17] As to the merits of the case, this is essentially an interlocutory hearing, which does not
generally permit a substantive testing of the merits of the particular application and so, the
best that can be done in cases such as this, is to take the applicant's case at its highest and
assess the merits from that perspective. That is, to look at the applicant's case in the most
favourable light and make an assessment about the merits.
[18] The question of whether the dismissal occurred at the initiative of the Respondent, in a
case involving a resignation, is not without complexity. In the present case, the Applicant
points to a number of behaviours of the Respondent involving belittlement, bullying conduct,
a failure to properly investigate grievances and unwarranted criticism of her. She says that as
a consequence of the impact of those behaviours, that she alleges had on her wellbeing, she
concluded that she had no choice but to resign. There is some evidence in the Applicant’s
[2016] FWC 1974
4
medical notes that she had been considering resigning for some months before the date of
termination.
[19] Ultimately, if the Applicant is able to demonstrate that there was a constructive
dismissal then what will likely follow, given that the Respondent maintains that the Applicant
resigned of her own free will, is that the considerations for determining whether or not a
dismissal was harsh, unjust or unreasonable, which are set out in s.384 of the Act, would seem
to fall heavily in favour of the Applicant. That is, the Respondent will have difficulty in
showing that there was a valid reason or that there was an opportunity to respond to any
particular reason, or that there was any issue about unsatisfactory performance and so on. So,
fundamentally, this case will ultimately turn on whether or not there was a constructive
dismissal.
[20] I am prepared to conclude that the Applicant has an arguable case, but I have to say
that it is not a strong case. Indeed I think the case is weak but arguable. The question of
whether there was a constructive dismissal, as I indicated earlier, is not a simple one, but on
the basis of the facts and circumstances known to me, as alleged by the Applicant, I have
some misgivings as to whether or not the Applicant will be able to show that this is a case of
constructive dismissal. Doubtless, the Applicant felt the way she did, but that will likely not
be enough to show that the conduct of the Respondent was, in effect, the driving force for the
termination of the employment. In those circumstances, although I say that the application is
not without merit (in the sense that the case is arguable), I think the merits are weak, and I
consider this consideration to be a neutral factor in my assessment as to exceptional
circumstances.
[21] As to fairness between the Applicant and other persons, in a similar position, cases of
this kind will generally turn on their own facts, however, this consideration, as I indicated
earlier to the parties during the hearing, is concerned with the importance of the application
by the Commission of consistent principles in cases of this kind so that fairness is ensured as
between the treatment of applicants who have similar circumstances to ensure that the
outcomes are generally the same.
[22] The consideration may relate to current matters before the Commission or decisions
that have been made in the past. Neither party was able to draw my attention to any relevant
case to which I should have regard and I am not aware of any particular case that would have
any particular relevance here, so this consideration is also neutral.
[23] The statutory time limits that are applicable to the exercise of a person's right, to bring
an unfair dismissal remedy application are an expression of the parliament's intention that
rights should be exercised promptly. That is because it is important that there is some
certainty, particularly in relation to an employer who has taken a particular step, that they
know that after the expiration of 21 days, in the case of a termination, that that will be the end
of the matter. Time limits seek to balance the right to bring an action by an aggrieved former
employee and the desirability of prompt action and prompt resolution of disputes.
[24] It is for that reason, the parliament has chosen to establish a time period and that time
period is 21 days. However, the parliament also recognises that there will be some cases
where a late application should be accepted and it has set out the test of exceptional
circumstances and the matters that need to be taken into account.
[2016] FWC 1974
5
[25] When I weigh all of the matters it seems to me that there is no acceptable explanation
for the delay, and the merits of the case, although arguable are weak and apart from the taking
of a step to dispute a dismissal and the absence of prejudice, the other factors are essentially
neutral or weigh against the Applicant. I am not satisfied, in the present circumstances, that
there are exceptional circumstances. As a consequence, there is no reason for me to consider
whether I should exercise my discretion.
[26] In those circumstances, the application to allow the Applicant to file her unfair
dismissal application outside of the time prescribed is refused and the application is
dismissed. An order giving effect to this decision is separately issued in PR578515.
DEPUTY PRESIDENT
Appearances:
Ms J Blake appeared in person.
Ms M Priolo on behalf of the Respondent.
Hearing details:
Melbourne.
2016.
March 24.
Printed by authority of the Commonwealth Government Printer
Price code A, PR578492
WORK COMMISSION THE SEAL OF
