1
Fair Work Act 2009
s.365—General protections
Theresa Muzinda
v
Mr and Mrs Jones Pty Ltd
(C2017/642)
COMMISSIONER RYAN MELBOURNE, 8 MARCH 2017
Application to deal with contraventions involving dismissal - extension of time.
[1] The Applicant filed an application to deal with a general protections contravention
involving dismissal on 3 February 2017. The application identified the date of dismissal as 19
December 2016. Prima facie the application was filed outside of the 21 day time limit
specified by s.366(1)(a) of the Fair Work Act 2009 (the Act).
[2] The application was listed for a jurisdictional hearing in relation to an extension of
time application. The parties were directed to file and serve their respective material in
relation to the extension of time application. The hearing of the extension of time matter was
listed for 23 February 2017, however it was vacated upon the parties consenting to have the
matter dealt with on the papers.
Background
[3] By way of background, Ms Muzinda (the Applicant) commenced employment with
Mr and Mrs Jones Pty Ltd (the Respondent) on 21 June 2016 in the role of part-time Assistant
Store Manager of the Eastgardens store and then approximately six weeks later accepted the
offer of a role as full-time Store Manager of the Eastgardens store. The Applicant was told by
the Respondent that the reason for her termination was that poor sales figures for the
Eastgardens store was causing the Respondent financial loss.
[4] In her application, the Applicant alleges the adverse action taken by the Respondent in
terminating her employment due to racial discrimination. The Respondent strongly denies any
allegation of racial discrimination.
[5] The Respondent argues that it exercised its right to terminate the Applicant within the
six months’ probation period and that no reason is required to be given pursuant to the
Respondent’s letter of offer. The termination letter provided to the Applicant dated 19
December 2016 states in part:
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DECISION
E AUSTRALIA FairWork Commission
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“As you are aware, your employment with Mr & Mrs Jones (“MAMJO”) was subject
to a six (6) month probationary period. Your probation period with us is due to end on
7th February 2017.
We confirm that we have decided not to continue your employment beyond your
probationary period.
As a result, in accordance with Clause 3.2 in your executed Letter of Appointment
dated 1st August 2016, your employment will end on 25 December 2016, being the
required 1 eeks’ notice period from the date of this letter. However, your last day at
the Eastgardens Store will be the date of this letter, being Monday 19th December
2016.”
[6] The Respondent at the same time argues that the Applicant has not served the
minimum employment period pursuant to s.351 of the Act.
[7] It is evident from the Respondent’s submissions that the Respondent may not be clear
about the type of application to which it is responding to. This is evident from the
Respondent’s use of the term “unfair dismissal” throughout its submissions and the reference
to s.351 of the Act. To a certain extent the Respondent may have been led into this uncertainty
by the Applicant’s frequent references in her material to her termination being an “unfair
dismissal”.
[8] For the sake of clarity, I note that s.351 of the Act does not apply to an application
made pursuit to s.365 of the Act. The minimum employment period provisions are only
applicable in determining if someone has a right to make an unfair dismissal claim pursuant to
s.394 of the Act.
Extension of Time
[9] Section 366(1) of the Act states that an application under section 365 must be made:
“(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).
[10] Section 366(2) continues to provide a discretion to the Commission to extend the time
to make application if it “is satisfied that there are exceptional circumstances, taking into
account:
(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
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(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.”
[11] Therefore, are there “exceptional circumstances” existing in this matter, taking into
account the considerations contained in s.366(2), to warrant the Commission exercising its
discretion to extend time for the Applicant to make application?
[12] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star
Group Pty Ltd1 where the Full Bench said:
"[13] In summary, the expression 'exceptional circumstances' has its ordinary
meaning and 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 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
[Endnotes removed]
Reason for the Delay in making the Unfair Dismissal application - s.366(2)(a)
[13] The Applicant has submitted that there were a number of contributing factors as to
why she did not file her application within time, which can be broadly put as:
the timing of the dismissal, being a few days before Christmas, did not allow her to
access legal advice; and
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receiving incorrect advise from the “Fair Work information line” relating to the
type of application she should be making; and
the psychological effects of the events leading up to and including the dismissal.
The timing of the dismissal impacting on ability to secure legal advice and assistance
[14] The Applicant’s submission is that the timing of her dismissal, being a few days prior
to Christmas, disadvantaged her as she “…found it very difficult to secure free legal advice,
assistance and support because many law firms and sole practitioners were winding their
businesses down for the long Christmas and New Year holidays.”
[15] The Applicant submitted that:
“I managed to make a few phone calls and online enquiries on 21, 22 and 23
December 2016 to law firms advertising ‘No Win No Fee’ free advice and legal
representation for unfair dismissal actions”
And that on 17 and 18 January 2017 she did received 30 minute free consultation calls with 2
law firms which both confirmed with her that the correct type of application was a general
protections application and what the challenges of filing an application out of time were.
[16] I cannot find that the timing of the dismissal inhibited the Applicant’s ability to secure
legal representation and/or advice as it clear from the Applicant’s material that she did receive
some guidance and advice prior to making her actual application. The inhibiting factor
appears more related to the Applicant’s financial position rather than the actions of the
Respondent in terminating her employment on 19 December. As she states in her
submissions:
“I could not afford to pay full legal fees to a law firm for legal advice unless it was for
free. My options for legal assistance were very limited due to my financial
circumstances.”
Advice received from Fair Work Commission
[17] In the midst of the Applicant’s efforts to secure legal representation, she made
enquiries at her own initiative with the Fair Work Commission. She submitted that she was
initially told by the FWC to complete an application for unfair dismissal (Form F2) and that it
was only after calling back and giving better details about the alleged behaviour of the
Respondent in terminating her that she was advised to complete a general protections
application using the form F8.
[18] Given that the Applicant became aware of the correct application to make on 30
December 2016, a date still within the 21 day timeframe, I find that this factor cannot be a
contributing factor to the reason for the delay as it relates to a period of time I am not required
to consider.
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The psychological effects of the dismissal
[19] The Applicant has provided 2 medical certificates. One from her general practitioner,
Dr Tingate, dated 15 February 2017 which states that the Applicant is being treated for
“generalized anxiety and panic attacks…related to her dismissal …”. The second is from her
psychologist, Dr Carl Nielsen, dated 15 February 2017 which states:
“Ms Muzinda …. is suffering with Psychological illness. Specifically, she is suffering
with DSM V Adjustment Disorder with Depressed and Anxious Mood. In the absence
of any other significant stressors, the substantive causative factor culminating in her
sustaining the condition and on the balance of probabilities was the abrupt termination
from her place of employment of 19/12/16.”
[20] The trauma suffered by the Applicant as a result of her dismissal was probably no
greater and no less than the trauma suffered by many employees who are dismissed from full
time employment where the employee has an expectation of continuing employment. What is
very different in the Applicant’s case is her reaction to that trauma.
[21] It would appear to be out of the ordinary, unusual or uncommon for a dismissed
employee to develop the psychological illness of which the Applicant has been diagnosed and
is being treated for.
[22] I do not find the issues of timing or the alleged incorrect advice given to the Applicant
to be relevant matters as to reason for the delay, however I do find the Applicant’s diagnosis
of a mental illness to be a relevant factor covering the whole of the period that the application
was delayed.
Any action taken by the person to dispute the dismissal - s.366(2)(b)
[23] On the Applicant’s own material it is clear that the Applicant first became aware of
her dismissal at the time that the dismissal was effected.
[24] The Applicant’s own material discloses that she formed the view that she would not
take any action to dispute the dismissal after the dismissal. In her written submissions she
stated:
“It was clear to me that the respondent planned to disadvantage me even after it
dismissed me and so I decided earlier on not to contact the respondent to dispute the
dismissal.”
Prejudice to the Respondent - s.366(2)(c)
[25] The Respondent submitted that a delay of 25 days as occurred in this matter is a long
delay and that such a delay gives rise to a general presumption of prejudice2. I find that the
Respondent may suffer some prejudice due to the length of the delay in this matter but the
level of prejudice suffered may be quite minor.
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Merits of the Application - s.366(2)(d)
[26] The Applicant argues that the unlawful termination of her employment was due to
racial discrimination. The Respondent strongly denies any allegation of racial discrimination.
[27] Whilst the merits of the substantive application must be taken into account when
considering an application for an extension of time it is necessary to keep in mind what the
Full Bench said in Kyvelos v Champion Socks P/L:
“… It should be emphasised that in considering the merits the Commission is not in a
position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the
Commission should not embark on a detailed consideration of the substantive case in
an application (for an extension of time for the lodgment of an application). In
particular, it is undesirable that parties be exposed to the requirement to present their
evidentiary cases twice.”3
Fairness as between the Applicant and other persons in a similar position - s.366(2)(f)
[28] This factor is not a relevant factor in the present matter. There are no other employees
of the Respondent who are in a similar position to the Applicant.
Conclusion
[29] In order to grant an extension of time the Commission must be positively satisfied that
there are exceptional circumstances, having considered all of the relevant factors in s.366(2).
[30] Taking into account all the relevant factors, the Commission is satisfied that in this
matter there are exceptional circumstances which warrant the Commission exercising its
discretion to grant an extension of time to the Applicant to allow her to file her general
protections application for an unfair dismissal remedy on 3 February 2017.
[31] The time for filing an unfair dismissal remedy by the Applicant in relation to her
dismissal by the Respondent is extended until the time of her application on 3 February 2017.
The application by the Applicant is therefore within the time allowed under s.366(1)(b).
[32] The file will be now be allocated for further programming.
COMMISSIONER
THE FAIR WORK COMMISSION HE SEALO
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Printed by authority of the Commonwealth Government Printer
Price code C, PR590608
1 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011]FWAFB 975.
2 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556
3 Kyvelos v Champion Socks P/L Print T2412.
