DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Irish Elliott
v
Harmony Harvest Pty Ltd
(C2021/4990)

General protections dismissal dispute - application filed out of time – circumstances exceptional – application allowed

[1] Ms Irish Elliott (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Harmony Harvest Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the ground that the Application is out of time.

[2] The Applicant is originally of Phillipino descent with English not being her first language, and was represented by her husband, Mr Paul Elliott, in the proceedings. The hearing of the matter occurred on 8 October 2021.

When must an application for the Commission to deal with a dismissal dispute be made?

[3] Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

[4] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 1

[5] It is agreed between the parties that the dismissal took effect on 30 July 2021. The final day of the 21 day period was therefore 20 August 2021, and ended at midnight on that day. The Application was made on 21 August 2021. The Application was made 1 day late.

[6] As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.

Was the Application made within such further period as the Commission allows?

[7] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.

[8] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 2 I set out my consideration of each matter below.

Reason for the delay

[9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 August 2021. The delay is the period commencing immediately after that time until 21 August 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 3

[10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4

[11] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay. 5

[12] While there were references in the hearing to the application being “only one day late,” I note that such a small length of time does not obviate the need for acceptable explanation of the delay if that factor is to accorded weight, and that numerous decisions of the Commission have refused to allow a one day extension in time to file an application. 6

Submissions and evidence

[13] The Applicant submitted that the delay was for the following reasons:

“Form F8 was submitted 1 day late because Paul Elliott (Husband) who is helping Irish received his second covid vaccination (Pfizer) on Wednesday and suffered from the common side effects and spent the next 2 days in bed unwell. Paul was unable to complete the form F8 and lodge with the commission by Friday. The application was lodged at day 22 being 1 day late on Saturday when Paul was feeling much better. Irish was unable at short notice to find someone else to assist with this application and was reliant of Paul for help. English is Irish second language and she is not familiar with this type of matter.”

[14] In the hearing Mr Elliott conceded that he and Ms Elliott were aware of the 21 day limitation period, however his reaction to his second vaccination was on “short notice” and, although he was three quarters of the way through completing the Application, he and Ms Elliott could not arrange for another person to complete the Application within the prescribed time period.

[15] In relation to the reason for the delay, the Respondent submitted as follows:

“As I understand with their submitted response on the jurisdictional objection raised is that they lack time for a timely submission of F8. I think research and filing in the application form F8 would not take you more than 2 weeks to accomplish if you will just state the facts. The Fair Work Commission has a valid reason why they decided to put the 21-day submission rule. For me, the vaccination reason that Ms Elliott’s husband is pointing out is not a valid reason for the late submission. The attachments they have submitted as evidence are already available to them on the first day so I don’t see any reason for the delay of the submission.”

[16] Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs in favour of the Applicant in this matter. While the Applicant was not suffering any illness, it is clear she was relying on the assistance of her husband to complete the Application. The reaction suffered by Mr Elliott to the second Pfizer vaccination is not uncommon, and I accept that it contributed to and explained the delay.

[17] The Respondent’s submissions to the effect that the Applicant should have done more within the 21 day period is misguided for two reasons:

(a) As noted above, the delay requiring explanation is the period after the expiry of the 21 day period, which as found above, in the circumstances was acceptably explicable; and

(b) While circumstances arising prior to that delay may be relevant to the reason for the delay, it is relevant that in this matter the Applicant, and Mr Elliott, had commenced and vastly completed the Application before Mr Elliott’s unforeseen illness. It could not reasonably be put that the Applicant should have done more in the circumstances.

What action was taken by the Applicant to dispute the dismissal?

[18] Apart from various text messages regarding entitlements at the time of her dismissal, the Applicant did not take any action to dispute her dismissal prior to making the application on 21 August 2021.

[19] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal. I consider this factor is a neutral consideration.

What is the prejudice to the employer (including prejudice caused by the delay)?

[20] The Respondent did not in its submissions state that prejudice would be caused to it in the event the Commission extended the time for the Application to be made. In the hearing Ms Nakamura of the Applicant submitted that the Respondent is a very small business in the severely affected tourist industry, and that it had “no money.”

[21] I find that, in the circumstances, but for having to defend the Application, there would be no prejudice to the Respondent if an extension of time were to be granted. However the mere absence of prejudice, significant or otherwise. is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor weighs slightly in the Respondent’s favour.

What are the merits of the Application?

[22] It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).” 7

[23] In this matter, however, it is not difficult to perceive at least a strong prima facie case for the Applicant, notwithstanding the existence of the reverse onus of proof in general protections applications. 8 The Applicant has identified only one provision of the Act as having been allegedly contravened in answer to question 3.2 of the Application, being s.352 temporary absence – illness or injury. Section 352 provides:

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[24] The kind of illness or injury is prescribed by reg.3.01 of the Fair Work Regulations 2009 (Cth). Regulation 3.01(2)–(6) provides that in order for an illness or injury to be of the prescribed kind:

(a) the employee must provide a medical certificate or statutory declaration about the illness or injury within 24 hours after commencing the absence, or such longer period as is reasonable in the circumstances;

(b) the employee must comply with the terms of any applicable workplace instrument to notify the employer of an absence from work and substantiate the reason for the absence;

(c) the employee must provide the employer with evidence that would satisfy a reasonable person (see s 107(3)(a)) to justify taking paid personal/carer’s leave for a personal illness or injury rendering the employee not fit for work (as required by s 97(a));

(d) the absence extends for no more than 3 months, or the absences extend for no more than a total of three months within a 12 month period; and

(e) the period of absence is not a period when the employee is on paid personal/carer's leave because of unfitness to work because of personal illness or injury (in which context personal/carer's leave does not include workers' compensation): combined effect of reg 3.01(5) and (6) and s 97(a).

[25] In this matter, the Applicant suffered a foot injury while not at work at approximately 1.00pm on Sunday 25 July 2021. She was admitted to St Helens District Hospital Accident and Emergency at approximately 2.00pm, and notified Ms Nakamura of the Respondent at 2.04pm that she couldn’t work Monday 26 July 2021, as she was in hospital. Ms Nakamura asked the Applicant to come to work on Tuesday 27 July 2021. The Applicant responded that her doctor’s advice was to not work.

[26] At approximately 3.20pm on Sunday 25 July 2021, the Applicant left the hospital with a medical certificate stating she was totally unfit for work for seven days. The Applicant sent a photograph of that certificate to Ms Nakamura at 3.36pm that day.

[27] The Applicant’s employment was terminated at 8.33am on Friday 30 July 2021, by text message from Ms Nakamura stating "Also. As your situation make really hard time for our works. We need house cleaner immediately. That why I would like to finish your working contract. We will pay extra one week salary on top of sick leave. Thank you for all your wonderful work at my business. Ami".

[28] In stark contrast to the statement in the above message that “We need house cleaner immediately,” in the Separation Certificate issued, and in the hearing, the Respondent maintained that the Applicant’s employment was terminated due to a shortage of work.

[29] On the material before the Commission, it is clear that the Applicant promptly provided adequate proof and notification of her injury and the absence that would occur, and so satisfied the provisions of Regulation 3.01 of the Fair Work Regulations 2009 (Cth). The Applicant was terminated five days later because she could not perform work and the Respondent “need house cleaner immediately.” Assertions of a shortage of work appear to be a baseless afterthought. The Respondent had in fact been seeking that the Applicant work as early as the Monday and Tuesday after her injury.

[30] In the circumstances, I find that, on a preliminary assessment basis, the merits of the Application are strong, and that weighs in favour of the Applicant.

Fairness as between the Applicant and other persons in a similar position

[31] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[32] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

[33] 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. 9 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.10

[34] It is clear that the factors that have been accorded significant weight in this matter, being the presence of an acceptable reason for the delay and the preliminary assessment that the merits of the Application, weigh heavily in the Applicant’s favour. The only factor weighing in the Respondent’s favour, and only of slight weight, is the issue of prejudice.

[35] Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.

Conclusion

[36] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the Application to be made.

[37] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,¹¹ I am satisfied that it is appropriate to extend the period for the Application to be made 21 August 2021.

DEPUTY PRESIDENT

Appearances:

Mr P Elliott, for the Applicant.
Ms A Nakamura, of the Respondent.

Hearing details:

2021.
Sydney (via teleconference)
October 8.

Printed by authority of the Commonwealth Government Printer

<PR734816>

 1   Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 3   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

 6   See for example. Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd [2021] FWC 530.

 7   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

 8   S.361 of the Act.

 9   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

 10   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

11 Fair Work Act 2009 (Cth) s 577.