//
[2018] FWC 4306
General information, not legal advice.
Fair Work Commission
2018-07-27
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - extension of time - initial representative error - meritorious application - significant delay after discovery of representative error - no exceptional circumstances.
[1] Ms Kathleen Bowers was employed by Vivid Home Builders Pty Ltd (Vivid) from 6 July 2017 until 5 March 2018. Ms Bowers has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed from her employment by Vivid and Mr Port in contravention of the general protections provisions of the Act. In this decision all references to Vivid include Mr Port.
[2] Ms Bowers' application was received by the Fair Work Commission (Commission) by email on 17 May 2018.
[3] Section 366 of the Act states:
(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).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(e) fairness as between the person and other persons in a like position."
[4] The expiry of the 21 day time limit for Ms Bowers' application to have been lodged within time to the Commission was 26 March 2018. Ms Bowers' application, received on 17 May 2018, was lodged 73 days after her dismissal and 52 days out of time.
[5] Ms Bowers now seeks an extension of time for her application to be made to the Commission. She contends that her application was filed out of time due to representative error in having first made a claim for unfair dismissal, and her inability to receive prompt legal advice in respect of her application.
[6] A telephone conference was conducted on 26 June 2018, and a telephone hearing was then held on 17 July 2018. Ms Bowers appeared on her own behalf. During the telephone hearing she was supported by two friends. Ms Emma Kirkby of Master Builders represented Vivid, together with Mr Tony Port, Director.
[7] Ms Bowers commenced employment with Vivid on 6 July 2017 as a New Home Sales Representative and reported to Mr Port. The employment was subject to a probationary period of six months, after which time Ms Bowers' salary was to be reviewed.
[8] Ms Bowers stated that throughout her employment Mr Port referenced the motivational speaker, Tony Robbins. Mr Port had subscribed to be a platinum member of Tony Robbins' organisation, and he would regularly chastise staff members if they were not demonstrating positivity in the workplace. Employees were provided with motivational books and a USB with an expectation that employees would come to work with a positive approach, learn about self-development, and discuss how to have and live a positive life.
[9] While Mr Port and Ms Hamilton attended various Tony Robbins seminars overseas, other staff members resigned, citing a controlling workplace. On their return, it is Ms Bowers' evidence that Mr Port and Ms Hamilton stated that they were relieved the employees had left because they were negative people and they would have been dismissed had they not resigned.
[10] The common law contract entered into specified that Ms Bowers was to be paid $40,000 per annum, plus superannuation. Further, she would be entitled to receive commission for contracts she secured. The terms stated: '2% commission paid on sale contract price less GST - paid on receipt of client's slab stage payment'. The contract included a term such that her commission would be '...forfeited if the employee is terminated or resigns prior to the slab payment being received'.
[11] Ms Bowers secured a sale for Vivid for a building contract valued in excess of $1,500,000. Ms Bowers' evidence is that the week following her securing the contract, Mr Port and Ms Emma Hamilton, Officer Manager for Vivid (and domestic partner of Mr Port), held a meeting with her. Mr Port said words to the effect that "the commission was too much and [Ms Bowers] didn't do much to earn it". Ms Bowers maintained that commission on the contract was owed to her under the terms of her contract. According to Ms Bowers, Mr Port became angry but acknowledged that he would have to pay the full commission amount under the terms of the contract.
[12] Ms Bowers stated that on 13 November 2017 Ms Hamilton presented her with an amendment to the contractual commission entitlement, such that the commission entitlement would be limited to contracts for residential constructions up to the value of $1,000,000. For a contract in excess of $1,000,000, the commission rate for the amount above the threshold would be 1%. Ms Bowers said to Ms Hamilton that she was being punished for 'selling well', but signed the amended commission term.
[13] Ms Bowers' evidence is that on 18 December 2017 Ms Hamilton called a meeting with her one hour prior to her finishing time. After three hours of listening to Ms Hamilton discuss how to be positive at work, Ms Hamilton presented her with a further proposed amendment to the employment contract, extending the probationary employment by a further six months and increasing the sales targets. Ms Bowers submitted that she expressed to Ms Hamilton that a probationary period of one year was 'ridiculous' and inquired as to 'what would happen if [she] didn't sign [the amendment]', to which Ms Hamilton shrugged her shoulders.
[14] Ms Bowers agreed to the proposed amendments, even though she considered the targets were unrealistic. She stated that she did so because she did not want to be dismissed as she knew that she would forfeit her commission which was valued in excess of $26,000.
[15] Ms Bowers submitted that other than being told not to use the word 'but' in a sentence, not swear at the photocopier (as it was a negativity), and refrain from sighing, she had considered that she was progressing well and meeting the expectations of Vivid in her role. Prior to her dismissal on 5 March 2018 she had received no indication from Mr Port that she was not meeting his or Vivid's expectations regarding her conduct or sales performance. Mr Port had confirmed Ms Bowers' self-assessment of her performance in a work review during her employment.
[16] Ms Bowers' account of the dismissal that took place on 5 March 2018 is as follows:
"Port: This is one of the hardest things I've had to do. This is not working out.
[17] Ms Bowers submitted that Mr Port did not answer her directly and looked away from her, upon which Ms Bowers asked Mr Port words to the effect of whether '...it was the fact that a commission of approximately $26,000 was due to be paid'. Ms Bowers submitted that their conversation continued as follows:
Bowers: Legally possibly not, but morally I believe so.
Port: You are costing the company money, you are not selling enough."
[18] Ms Bowers submitted that Mr Port ended the conversation by asking her to "pack her things and leave".
Ms Bowers' submissions regarding delay in lodging present application
[19] Ms Bowers submitted that the reason for the delay in bringing her application under s.365 of the Act was due to the erroneous advice of a legal service provider that she had contacted following her dismissal.
[20] On the day she was dismissed, Ms Bowers visited the Fair Work Commission website. She determined that she would not be able to bring a claim of unfair dismissal because she worked for a small business, and she had not served the minimum employment period of 12 months.
[21] On 6 March 2018 Ms Bowers contacted Mr Lewis Smith of 'Unfair Dismissals Direct'. Ms Bowers stated that she informed Mr Smith of the circumstances of her dismissal. It is her evidence that Mr Smith informed her that it was still appropriate to make a claim for unfair dismissal because it could be an avenue used to achieve a mediation facilitated by the Commission. Mr Smith stressed that the application must be made within 21 days of the dismissal.
[22] Ms Bowers' evidence is that she considered that this employment agent knew better than she did, and accordingly she signed a contract with them on a no win/no fee basis. On 23 March 2018 an application for an unfair dismissal remedy was lodged on behalf of Ms Bowers by Mr Smith.
[23] Ms Bowers submitted that "...I was advised a conciliation conference was set for the 24 April 2018...Unfair Dismissals Direct advised that I would be contacted on 24 April 2018 to go through everything".
[24] Ms Bowers was away from her residence for some time attending her daughter's wedding. When she arrived home on 16 April 2018 she checked her email account and discovered an email from the Commission informing her that the conciliation conference had been cancelled. Ms Bowers attempted to contact Mr Smith in respect of her unfair dismissal application, but was unsuccessful.
[25] Ms Bowers submitted that she was concerned about the state of her application and made contact with the Chambers of Deputy President Dean regarding her application. She was informed that the Commission did not have jurisdiction to hear her application as Ms Bowers had not competed the relevant minimum employment period of 12 months with Vivid to be protected from unfair dismissal. Ms Bowers immediately discontinued her unfair dismissal application.
[26] On the same day Ms Bowers contacted Unfair Dismissals Direct to advise of the steps that had been taken to withdraw the application. Ms Bowers' evidence is that she was contacted by a Director of Unfair Dismissals Direct the next day and berated for having broken the contract she had entered into with them.
[27] On 18 April 2018 Ms Bowers contacted 'Job Watch'. Her evidence is as follows:
"...I contacted Job Watch...who informed me that I had been provided with wrong information from Unfair Dismissal Direct, and that I should have made a General Protections Application, not an Unfair Dismissal Application. They informed me that I was past the 21 day time limitation period, but it may be possible to seek an out of time application with the Fair Work Commission.
I was unemployed and could not afford to pay for representation and Job Watch referred me to Working Women QLD.
Working Women QLD is a part time organisation and was able to talk with them on 20 April 2018, who advised I had nothing to lose by making a General Protection Application.
I downloaded the form 8 from the Fair Work Commission website and began to complete."
[28] Between 23 April 2018 and 15 May 2018 Ms Bowers unsuccessfully attempted to contact Working Women QLD (WWQ) by email and phone for her further application to the Commission. She stated that she wished for the organisation to review the application prior to lodgment. On 16 May 2018 Ms Bowers was able to discuss her application with a representative from WWQ. Ms Bowers lodged her present application with the Commission on 17 May 2018.
[29] Ms Bowers submitted that she had been led to believe that an application for an unfair dismissal remedy was the correct application to make in the circumstances of her dismissal as a result of the legal advice she had received from Mr Smith from Unfair Dismissals Direct. Ms Bowers submitted that Unfair Dismissals Direct, as her legal representative, should have informed her that she was not protected from unfair dismissal from her position at Vivid at the time of her dismissal and advised her accordingly.
[30] Ms Bowers submitted that she took appropriate steps once she had withdrawn the unfair dismissal application. She sought further legal advice from WWQ to draft and lodge her present application. She considers the period from 16 April 2018 until 17 May 2018 to be a relatively short period.
Other s.366(2) considerations
[31] Ms Bowers submitted that she took immediate steps to dispute her dismissal by researching the remedy of unfair dismissal and contacting Unfair Dismissals Direct on 6 March 2018.
[32] Ms Bowers did not make specific submissions regarding whether Vivid may be exposed to prejudice other than the prejudice resulting from having to defend against her claim, were an extension of time granted.
[33] Ms Bowers considered her claim to be meritorious and the conduct of Vivid to constitute significant contraventions of her workplace rights and general protections afforded to her pursuant to Part 3-1 of the Act.
[34] Ms Bowers did not identify any similar circumstances in which an extension of time had been granted.
[35] The Respondent did not lodge a formal response to the present application, but did later make submissions on the out of time issue.
[36] As to the reasons for delay, Vivid submitted that a distinction should be drawn in this case between the alleged 'representative error' and Ms Bowers' independent decision to commence an unfair dismissal application on the advice of Unfair Dismissals Direct. Vivid submitted that Ms Bowers had been generally aware of the Commission's jurisdiction to consider unfair dismissal applications brought by dismissed employees of small business employers, but regardless had "chose[n] to so as leverage to seek settlement of monies she felt were owing to her".
[37] Vivid referred to the case authorities of Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw)[1] and Nulty v Blue Star Group Pty Ltd[2] and submitted that Ms Bowers' alleged reliance on erroneous legal advice did not constitute 'exceptional circumstances' sufficient to warrant an extension of time being granted.
[38] Further, it was submitted that Ms Bowers did not take sufficiently urgent steps to pursue her original application, or make her present application to the Commission after discontinuing her unfair dismissal application, to warrant an extension of time being granted. The following was submitted:
"There is an expectation that there be some process of immediate action to lodge a General Protections claim once she had realized that she could no longer pursue an Unfair Dismissal claim. There is a considerable period between 16 April 2018, when she discontinued her Unfair Dismissal claim and 17 May when the General Protections claim was lodged...In cases where an extension of time has been granted in similar circumstances the Applicants have moved promptly to secure their rights by submitting the new application in a timely manner".
[39] The Respondent accepts that Ms Bowers took steps to dispute her dismissal by lodging her original unfair dismissal application on 23 March 2018.
[40] Vivid did not submit that it would be exposed to any prejudice beyond that of defending Ms Bowers' claim were an extension of time to be granted.
[41] It was submitted that Ms Bowers had failed to identify the workplace right that Ms Bowers had purportedly been dismissed as a result of exercising, and was therefore without significant merit.[3]
[42] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist. The onus of establishing that such exceptional circumstances exist lies with Ms Bowers.
[43] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[4] where the Full Bench said:
"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:
'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:
'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."
[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." [Endnotes not reproduced]
[44] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[5] a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[6] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[7]
"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional." (original emphasis)
[45] The extent to which this factor should weigh on the overall decision of whether the discretion to grant an extension should be exercised was recently clarified by the Full Bench in Long v Keolis Downer T/A Yarra Trams,[8] which said:
"[34] In Stogiannidis the Full Bench concluded that the Commissioner at first instance had erred by elevating one relevant factor - that is, the reason for delay under s.366(2)(a) - into a 'decision rule so as to allow the automatic production of a solution'. In the decision which was the subject of that appeal (at [29]) the Commissioner said:
'The applicant needs to provide a credible explanation for the entire period of the delay, but has not done so.' (emphasis added)'
[35] The authority cited by the Commissioner in support of the above proposition was Cheval. On appeal the Full Bench expressed doubt as to whether Cheval was authority for the stated proposition but in any event concluded that to the extent that Cheval may be said to be authority for such a proposition it was plainly wrong. The Full Bench concluded:
'[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
[41] The 'reason for the delay' is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.
[47] Given the error in [29] we have concluded that the Decision is attended with sufficient doubt as to warrant its reconsideration on appeal. On that basis we grant permission to appeal. The adoption of the decision rule in [29] (however construed) amounts to an error of law and one that plainly influenced the Commissioner's ultimate conclusion that Mr Stogiannidis's circumstances cannot be regarded as exceptional, such as to enliven the discretion to extend time..." [Endnotes not reproduced].
[46] The Full Bench addressed the relevant period during which an applicant must prove that exceptional circumstances existed in Shaw,[9] as referred to by Vivid. The Full Bench confirmed Shaw's applicability in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[10] in relation to the discretion to grant an extension of time under the provision for unfair dismissal applications under s.394(3) of the Act, which is substantively similar to the extension of time for applications under s.365. The Full Bench considered:
"[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
'[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. ...'
[30] This extract must be read in its entirety. The decision goes on to state:
'[12] ... The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.'
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach."
[47] In Lane v Kangaroo Island Dive & Adventures Pty Ltd,[11] Senior Deputy President O'Callaghan considered an applicant's submission that part of the reason for their delay in lodging a general protections claim was that the applicant had initially lodged an application under s.773, and considered that:
"...The first reason for the delay, which explains the majority of the time from the termination of Mr Lane's employment, is that his initial application was made pursuant to section 773. Mr Lane's advice was that he was advised in this respect by a community legal centre. This first application was made within time. I have concluded that this first application reflects an error in that section 773 is not available in this situation. Further, I have concluded that Mr Lane did not become aware of this until the conference on 15 April 2010. To the extent that this explains the subsequent delay in the lodgment of the second application, I consider it represents an acceptable reason for the delay."
[48] Ms Bowers' submissions as to the reasons for her delay in submitting the present application may be summarised as follows:
That Ms Bowers acted on the erroneous advice of Unfair Dismissals Direct and Mr Smith to lodge an unfair dismissal application following her dismissal, and that such application was lodged before the expiry of the 21 day time limit;
That Ms Bowers did not become aware of the Commission's email of 9 April 2018 informing her that it did not have jurisdiction to hear her original application until 16 April 2018, as she had been out of mobile connection from 26 March 2018 to 16 April 2018;
That Ms Bowers had attempted to obtain further legal advice regarding her dismissal from WWQ from 18 April 2018, but had not been able to discuss her circumstances with WWQ until 16 May 2018, following which she lodged her present application on 17 May 2018.
[49] Having regard to the authorities cited above and noting particularly SDP O'Callaghan's approach in Lane v Kangaroo Island Dive & Adventures Pty Ltd, I am satisfied that Ms Bowers' submissions as to the lodgement of her original unfair dismissal application and the advice she received from Unfair Dismissals Direct in that regard provide a satisfactory explanation for the delay of the lodgement of her present application. Ms Bowers was entitled to rely on the advice she received from her legal representatives as to the most suitable application to be lodged to the Commission following her dismissal, despite her reservations.
[50] The advice provided by Unfair Dismissals Direct was plainly incorrect. If attempts are made to commence jurisdictionally barred proceedings in this Commission in order to obtain a conciliation from a Commission staff conciliator, the organisation should be seriously cautioned against such action.
[51] I accept that Ms Bowers was not aware of the Commission's view that it did not have jurisdiction to determine her unfair dismissal application until she read the email of 9 April 2016 on 16 April 2018. As such, Ms Bowers could not have been aware of her need to lodge a further application in relation to her dismissal until 16 April 2018. In those circumstances Ms Bowers cannot be blamed for her failure to lodge a further application between 9 April 2018 and 16 April 2018. I am satisfied that Ms Bowers has provided a credible reason of exceptional circumstances resulting in the delay during that period.
[52] As to the final period of delay from 16 April 2018 to 17 May 2018, it cannot be said that the period of delay from 16 April 2018 to 17 May 2018 was occasioned by representative error or any cause other than Ms Bowers' desire to have her s.365 application reviewed by WWQ prior to submission.
[53] Indeed, Ms Bowers acknowledged that she had been made aware in her conversation with Job Watch of the correct application and form to lodge to the Commission, was aware that any s.365 application relating to her dismissal from Vivid would be made out of time, and had even begun to complete her s.365 application by 20 April 2018.
[54] It was Ms Bowers' decision alone to further delay the lodgment of her present application until 17 May 2018. Ms Bowers could have lodged her s.365 application at any time between on 16 April 2018 and 17 May 2018. It may have been that a delay of one or two days to take limited further legal advice after being made aware that her original application could not be considered could have constituted a credible explanation for such a delay. I am not satisfied that Ms Bowers is without blame for the delay of approximately one month from her being made aware that she needed to lodge a further application regarding her dismissal and the actual lodgement of her s.365 application.
[55] I have had regard to Ms Bowers' desire to properly inform herself of the correct application to lodge and to have her s.365 application reviewed prior to lodgment, particularly considering that she had already received unhelpful legal advice from Unfair Dismissals Direct.
[56] Taking account of all of the circumstances resulting in the delay in lodging the present application, I have determined that the multiple reasons provided for the delay do not amount to exceptional circumstances sufficient to credibly explain the delay in this instance. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.
Any action taken by the person to dispute the dismissal
[57] I accept that Ms Bowers took steps to dispute the fairness of her dismissal by making an application for an unfair dismissal remedy to the Commission on 23 March 2018. I accept that after discontinuing her first application on 16 April 2018, Ms Bowers took further steps to dispute the grounds on which she had been dismissed by lodging the present application on 17 May 2018.
[58] I find that Ms Bowers took action to dispute the nature of her dismissal, both on the grounds that her dismissal was unfair and that she was dismissed because of her exercise of a workplace right. Ms Bowers' actions to dispute her dismissal cannot be disregarded merely by her delay in taking such steps.
[59] I consider that this is a factor weighing in favour of the discretion to grant an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[60] The delay between Ms Bowers' present application and her dismissal was a period of 52 days. That period of delay, considered in isolation, would not cause any undue prejudice to Vivid other than its costs, if any, following from its objection to the granting of an extension of time to Ms Bowers.
[61] Vivid has not submitted that any other prejudice would result from extending the time for Ms Bowers' application than would have been suffered by it Ms Bowers' application had been made within the 21 day time limit.
[62] I consider that this is a neutral factor when considering whether to exercise the discretion to grant an extension.
[63] In Brodie-Hanns v MTV Publishing Ltd,[12] Marshall J outlined the relevant principles to address when considering an extension of time and stated that the principles included:
"...The merits of the substantive application may be taken into account in determining whether to grant an extension of time".
[64] The Full Bench in Kyvelos v Champion Socks Pty Ltd (Kyvelos)[13] considered the extent to which this criterion should be weighed in the overall decision of whether the discretion should be exercised (under then s.170CE(7) of the Workplace Relations Act 1996), and stated:
"[14] In considering whether to accept an application which has been lodged out of time...the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement..." [Endnotes not reproduced].
[65] Having considered the written and oral submissions of each party it is apparent to me that Mr Port (and vicariously, Vivid), has conducted himself in a reprehensible manner in the management of Ms Bowers' employment and in dismissing her from her employment.
[66] On multiple occasions throughout Ms Bowers' employment, Mr Port and Ms Hamilton pressured Ms Bowers to agree to significantly prejudicial amendments to the terms of her employment, relying on the position of power as Ms Bowers' employer. At stake was a commission payment in excess of $26,000. If Ms Bowers did not agree to amended terms, she reasonably feared being dismissed and knew contractually she would not be able to press for payment of the substantial sum.
[67] It is clear to me that the decision to dismiss Ms Bowers on 5 March 2018 was motivated in large part by the considerable amount of commission that Ms Bowers had been entitled to receive under the terms of her employment contract. By dismissing her, Vivid and Mr Port were able to avoid a legal obligation to pay to Ms Bowers that commission payment.
[68] It appears to me that Vivid and Mr Port have had no regard to the loss occasioned upon Ms Bowers by their actions. At all times during this matter, Vivid and Mr Port have obstinately rejected the Commission's attempts to negotiate a settlement of this matter or recognise any moral or ethical grounds supporting a payment to Ms Bowers of at least a part-payment in recognition of the commission she would be owed if not for her dismissal.
[69] I consider that Ms Bowers' present application has significant merit which weighs in favour of the exercise of the discretion to grant an extension of time in this matter.
Fairness as between the person and other persons in a like position
[70] The Full Bench outlined the considerations relevant to this criterion in the case of Perry v Rio Tinto Shipping Pty Ltd,[14] and stated:
"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."
[71] Neither party in their submissions identified cases of a similar kind from which principles relevant to this criterion could be drawn to ensure fairness between persons in like positions.
[72] I consider that this is a neutral factor when considering whether to exercise the discretion to grant an extension.
[73] I have considered each of the criteria as set out in s.366(2) of the Act. While I am extraordinarily sympathetic to Ms Bowers relevant to the merit of her application, and what I consider to be the unfair conduct of Vivid and Mr Port, I am heavily influenced by Ms Bowers' failure to make her application between the period 16 April 2018 and 17 May 2018. A very short period of time following Ms Bowers becoming aware on 16 April 2018 of the state of her unfair dismissal application might have constituted exceptional circumstances to warrant the exercise of the discretion to grant the extension of time. I cannot, however, find it within my discretion to excuse such a lengthy delay for the reasons give above.
[74] I am not satisfied that exceptional circumstances exist in this case for me to exercise my discretion to extend the time for Ms Bowers to make her application.
[75] Accordingly, the application is dismissed.
[3] Barnett v Territory Insurance Office [2011] FCA 928
[7] [2018] FWCFB 901 at [38].
[8] [2018] FWCFB 4109, [34] - [35].
[11] [2010] FWA 3939, [13].
[12] (1997) 67 IR 298, 300.
[13] Print T2421, (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].
[14] [2016] FWCFB 6963, [41].
Printed by authority of the Commonwealth Government Printer
Ms Kathleen Bowers
Mr Tony Port; Vivid Home Builders Pty Ltd [2018] FWC 4306
(1989) 167 CLR 372
(2004) 223 CLR 513
(1997) 67 IR 298
(2010) 197 IR 403