Campbell v Dwyer Engineering and Construction Pty Ltd [2016] FWC 1667 (17 March 2016) [2016] FWC 1667 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Terri Campbell v Dwyer Engineering and Construction Pty Ltd (C2016/89) DEPUTY PRESIDENT KOVACIC SYDNEY, 17 MARCH 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] Mrs Terri Campbell (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 January 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Dwyer Engineering and Construction Pty Ltd (the Respondent) on 24 December 2015 in contravention of the general protections provisions in the Act. [2] As the application was lodged four days outside the statutory timeframe for lodgement set out in s.366(1) of the Act, the Commission issued Directions on 28 January 2016 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. [3] The extension of time issue was the subject of a telephone hearing on 8 March 2016. At the telephone hearing, Mrs Campbell appeared on her own behalf, while Ms Paula Prescott, the Respondent’s accountant, appeared for the Respondent. [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] Mrs Campbell commenced employment with the Respondent on 3 August 2015 as a Receptionist/Accounts Assistant/Admin all-rounder. [6] Mrs Campbell contended in her application that she was dismissed because on 15 December 2015 she had requested six weeks leave without pay to have both of her knees replaced. Mrs Campbell stated in her application that on 17 December 2015 she was informed that the Respondent was going to restructure its administration and accounting departments and that as a result she would be made redundant on 24 December 2015. In her application, Mrs Campbell contended that her dismissal was in contravention of ss.340 , 343 , 344 and 352 of the Act which deal with protection related to the existence of or exercise (or otherwise) of a workplace right, coercion as to exercise (or otherwise) of a workplace right, undue influence or pressure and temporary absence due to illness or injury respectively. [7] The Respondent in its Form F8A – Response to General Protections Application stated that Mrs Campbell was dismissed during her probationary period. [8] As noted above, Mrs Campbell’s application was received by the Commission on 18 January 2016, four 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] Mrs Campbell submitted that on 4 January 2016 she visited the Commission’s website where she learnt that she was unable to make an unfair dismissal application as she had not served the required qualifying period. In subsequent developments, Mrs Campbell registered with the Fair Work Ombudsman (FWO) via its website on 14 January 2016 and lodged an enquiry after learning the previous day that the Respondent had apparently appointed an administrative person to replace her. Mrs Campbell submitted that the FWO responded on 15 January 2016 providing links to pages on its website dealing with “Ending employment” and “Protections at work” which in very general terms deal with unfair dismissal and the general protections provisions of the Act. Mrs Campbell responded to the FWO later that day stating that she believed that she had a “case for unfair dismissal to due adverse action” and seeking advice as to “What do I need to do next, please assist”. According to Mrs Campbell’s written submissions, the FWO responded on Saturday, 16 January 2016 advising her to contact the Commission and informing her of the 21 day period for making a general protections application. Mrs Campbell further contended that she submitted an unfair dismissal application on 16 January 2016 and was contacted by the Commission on 18 January 2016 to advise that she had completed the wrong form. Mrs Campbell submitted that she completed and lodged the correct application form later that day. In summary, Mrs Campbell submitted, inter alia , that following her initial enquiry she believed that she “had no right to apply as I did not meet the criteria.” [12] At the telephone hearing, Mrs Campbell essentially reiterated her written submissions, adding that she was not aware of the possibility of a general protections application until she was advised by the FWO on 15 January 2016. [13] The Respondent submitted that it had dismissed Mrs Campbell during her probationary period in accordance with the Act, adding that the granting of an extension of time would not alter its position in this regard. The Respondent submitted that it therefore had no objection either way regarding the extension of time issue. [14] An examination of the Commission’s records indicated that on 16 January 2016 Mrs Campbell lodged a copy of an uncompleted separation certificate and a copy of her termination letter. Those documents were not accompanied by an application of any description. The Commission’s records further show that the Commission contacted Mrs Campbell by telephone on 18 January 2016 regarding the submission of her general protections application. Irrespective of the discrepancy between the Commission’s records and Mrs Campbell’s outline of events, I note that 16 January 2016 was already two days outside the 21 day period. [15] Beyond that, it appears from the material before the Commission that the primary reason for the delay in Mrs Campbell lodging her application was that she was not aware of the possibility of making a general protections application until advised by the FWO on 15 January 2016. Again, this was after the 21 day period had expired. Not being aware of the scope to make a general protections application is not unusual. [16] 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 [17] Mrs Campbell acknowledged at the telephone hearing that she had taken no steps to dispute her dismissal, contending that she did not do so because she did not think that there was any course of action open to her. [18] The Respondent made no submission regarding this factor. [19] This does not point to the existence of exceptional circumstances. (c) Prejudice to the employer (including prejudice caused by the delay) [20] Mrs Campbell submitted that the Respondent would not be prejudiced were an extension of time granted. [21] The Respondent did not directly address this factor, though the Commission noted the Respondent’s previously expressed view that it had no objection either way regarding the extension of time issue. [22] Against that background, I consider the issue of prejudice to be a neutral consideration. (d) The merits of the application [23] At the telephone hearing, Mrs Campbell reiterated her contention that she was dismissed because she had requested leave without pay to have both her knees replaced, adding that she advised the Respondent at her interview in July 2015 that she had a knee problem. [24] The Respondent maintained at the telephone hearing that Mrs Campbell had been dismissed during her probationary period in accordance with the Act. The Respondent also contended that it had gone through a number of changes due to a shortage of work and as a result of having gone into receivership in late February 2015. The Respondent further submitted that it had subsequently been placed under voluntary administration in late March 2015 and was currently operating under a Deed of Company Arrangement, with the business still struggling. [25] As to Mrs Campbell’s contention that someone had been appointed to her former position, the Respondent submitted that a person had been appointed to an administrative role but that the role the person had been appointed to was not the same role as that previously occupied by Mrs Campbell. The Respondent also submitted that while the position did still entail receptionist duties, other duties had also been allocated to the position. [26] Finally, the Respondent contended that Mrs Campbell’s medical condition had nothing to do with her dismissal. [27] Mrs Campbell provided little material to substantiate her contention that her dismissal contravened the general protections provisions of the Act, particularly in respect of her contentions that her dismissal contravened ss. 343 and 344 of the Act. Conversely, the Respondent provided little material to substantiate its contention that Mrs Campbell was made redundant as a result of a number of changes to the business brought on by its financial circumstances. [28] In those circumstances, I am unable to form a considered view as to the merits of Mrs Campbell’s application. Accordingly, I consider this factor to be a neutral consideration. (f) Fairness as between the person and other persons in a like position [29] Neither Mrs Campbell nor the Respondent made any submissions regarding this factor, though the Commission again noted the Respondent’s previously expressed view that it had no objection either way regarding the extension of time issue. Accordingly, I consider it to be a neutral consideration. Conclusion [30] The question of exceptional circumstances was dealt with in Cheyne Leanne Nulty v Blue Star Group (Nulty) 1 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.” [31] 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). [32] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision. Appearances : T. Campbell on her own behalf. P. Prescott for Dwyer Engineering and Construction Pty Ltd. Hearing details: 2016. 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