Bastin v SC Care Pty Ltd [2016] FWC 1293 (29 February 2016) [2016] FWC 1293 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Michelle Bastin v SC Care Pty Ltd T/A SC Care (C2015/7958) DEPUTY PRESIDENT KOVACIC MELBOURNE, 29 FEBRUARY 2016 Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed. [1] Ms Michelle Bastin (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 2 December 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by SC Care Pty Ltd T/A SC Care (the Respondent) on 29 October 2015 in contravention of the general protections provisions in the Act. [2] As the application was lodged thirteen days outside the statutory timeframe for lodgement set out in s.366(1) of the Act, the Commission issued Directions on 9 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Ms Bastin did not file any written submissions in response to the Directions, simply forwarding the Commission a copy of her application. [3] The extension of time issue was the subject of a telephone hearing on 28 January February 2016. At the telephone hearing, Ms Bastin appeared on her own behalf, while Mr Stephen Edwards appeared with permission for the Respondent. Mr Edwards appeared with Mrs Delwyn Nalder and Mr Brian Nalder, the Respondent’s principals. [4] For the reasons set out below, I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed. Background [5] The Respondent is a small business which exists to provide care for the disabled granddaughter of Mr and Mrs Nalder. Ms Bastin commenced employment with the Respondent on 30 June 2015 as a casual Home Care Employee. [6] Ms Bastin contends in her application that she was dismissed in contravention of ss.340 and 351 of the Act which deal with protection related to the existence of or exercise (or otherwise) of a workplace right and discrimination respectively. [7] The Respondent in its Form F8A – Response to General Protections Application stated that Ms Bastin was dismissed for unsatisfactory performance and that there was no conceivable causal connection between her dismissal and the exercise of a workplace right or prohibited discrimination. [8] As noted above, Ms Bastin’s application was received by the Commission on 2 December 2015, thirteen days outside the statutory timeframe specified in s.366(1)(a) of the Act. The Relevant Legislation [9] Section 366 of the Act provides: “ 366 Time for application 366(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). 366(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.” Whether to allow a further period for the application to be made [10] In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately. (a) The reason for the delay [11] In her application Ms Bastin stated that the reason for the delay in lodging her application was that she was experiencing financial hardship which impacted on her cash flow because of unforeseen changes to her employment. Ms Bastin also stated that she was not told about making a general protections application until after the 21 timeframe for doing so had expired. [12] At the telephone hearing, Ms Bastin again alluded to her financial difficulties following her dismissal, contending that she was unable to obtain legal advice as a result of those financial difficulties and that it took her some time to gather the resources to obtain legal advice. Ms Bastin further submitted that she contacted the Commission by telephone in early November 2015 when she was advised to seek legal advice regarding her circumstances. Ms Bastin added that she misunderstood how the 21 day timeframe was calculated and contended that she thought it referred to 21 working days as opposed to calendar days. To her credit, Ms Bastin acknowledged that this was an error on her part. [13] Ms Bastin also stated at the telephone hearing that she subsequently contacted Legal Aid Western Australia (Legal Aid) and an organisation she referred to as “Employment Law” and met with a civil law lawyer from Legal Aid on 16 November 2015 (i.e. eighteen days after her dismissal). The lawyer advised her to read the Act and further research the Commission’s website. Ms Bastin also submitted that she contacted the Shenton Park Community Centre where she was essentially given the same advice, adding that it took her some time to read the relevant provisions of the Act. Ms Bastin also contended that the discussions with Legal Aid and the Shenton Park Community Centre saw her termination considered an unfair dismissal and that she advised Legal Aid that she was not covered by the unfair dismissal jurisdiction given her short period of employment with the Respondent. [14] The Respondent submitted that the reasons relied upon by Ms Bastin do not constitute exceptional circumstances, contending that ignorance of the time limit had not been accepted by the Commission as an exceptional circumstance in a number of cases. [15] While I do not doubt that Ms Bastin suffered financial difficulties following her dismissal, is not clear how those difficulties precluded her from filing her general protections application within the 21 day statutory timeframe, particularly as there is scope to seek a waiver of the application fee in cases of serious financial hardship. When asked by the Commission at the telephone hearing how her financial difficulties precluded her from making her application within the statutory timeframe, Ms Bastin responded that she was not sure what she needed to do to proceed or what her rights were in the circumstances. [16] It appears from the material before the Commission that the primary reason for the delay in Ms Bastin lodging her application was that she was not aware of options available to her and that she only became aware of the scope to make a general protections application after the 21 day period had expired. This is not unusual. Further, and as noted above, Ms Bastin submitted that she misunderstood how the 21 day period was calculated, admitting that this was an error on her part. Such an error is not unusual. [17] The above analysis does not support a finding of the existence of exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [18] Ms Bastin submitted at the telephone hearing that she did not contact the Respondent following her dismissal. [19] The Respondent submitted that there was no evidence of Ms Bastin taking action to dispute her dismissal. [20] This does not support a finding that there were exceptional circumstances. (c) Prejudice to the employer (including prejudice caused by the delay) [21] Ms Bastin submitted that the Respondent would not be prejudiced were an extension of time granted. [22] The Respondent made no submissions about this consideration other than to note that the mere absence of prejudice to the employer is not a sufficient basis to grant an extension of time 1 . [23] Against that background, I consider the issue of prejudice to be a neutral consideration. (e) The merits of the application [24] In her application Ms Bastin cited a number of issues which she contended constituted a contravention of s.340 of the Act. These included that the Respondent had refused to give her one of her payslips, had paid her on Mondays or Tuesdays as opposed to Wednesdays and Thursdays as per her Casual Employment Agreement, a monthly roster was not available upon request and that Mrs Nalder refused to update her granddaughter’s care plan. The alleged contraventions of s.351 of the Act relied upon by Ms Bastin in her application included that: ● Mrs Nalder favoured her mother, who was also employed by the Respondent, over her; ● the Respondent refused to give her a written explanation about the serious misconduct it relied upon to dismiss her; and ● the Respondent refused to pay superannuation into her nominated superannuation fund. [25] At the telephone hearing, Ms Bastin submitted that she felt that she was badly treated by the Respondent and that she did not understand why this was the case. [26] The Respondent submitted that Ms Bastin’s case as pleaded was hopeless and that it was not possible for her to satisfy the Commission, on the basis of the pleaded case, that it is not without merit. [27] An examination of the alleged contraventions relied upon by Ms Bastin in her application does not indicate any obvious contravention(s) of the general protections provisions of the Act. Accordingly, based on the material before the Commission, the merits of Ms Bastin’s application do not appear particularly compelling. [28] This does not point to the existence of exceptional circumstances. (f) Fairness as between the person and other persons in a like position [29] Ms Bastin did not directly address this consideration in her submissions other than to say that she could not speak on behalf of anyone else. [30] The Respondent made no submissions at this consideration. [31] Against that background, I consider this factor to be a neutral consideration. Conclusion [32] The question of exceptional circumstances was dealt with in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 2 in the following way: “[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.” [33] The above analysis does not see any factors point to the existence of exceptional circumstances. Against that background, and both having considered all of the factors set out in s.366(2) and drawing on Nulty , I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). [34] Accordingly, the application will be dismissed. An order 3 to that effect will be issued with this decision. Appearances : M. Bastin on her own behalf. S. Edwards with D. Nalder and B. Nalder for the Respondent. Telephone Hearing details: 2016. Melbourne: 28 January. 1 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. 2 [2011] FWAFB 975 . 3 PR577502 . Printed by authority of the Commonwealth Government Printer <Price code C PR577500>