[2019] FWC 5072
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.365—General protections

Sonja Templin
v
O’Connor & Houle Pty Ltd T/A O’Connor + Houle Architecture
(C2018/6652)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 JULY 2019

Application to deal with contraventions involving dismissal – late application – extension of time refused.

[1] At 10.32pm on Saturday 24 November 2018, Ms Sonja Templin filed an application (Application) pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Templin said she was notified of her dismissal by O’Connor & Houle Pty Ltd T/A O’Connor + Houle Architecture (O’Connor & Houle) on 19 October 2018 and the dismissal took effect on 2 November 2018.

[2] The Act provides that an application under s.365 must be made within 21 days after the dismissal took effect. 1 Ms Templin’s application was therefore filed one day late. The Fair Work Commission (Commission) may, however, allow a further period if it is satisfied there are exceptional circumstances.2

[3] This decision concerns whether I should exercise my discretion to allow Ms Templin a further period of time for the Application to be made.

Background

[4] The file was allocated to my chambers on 3 December 2018 and in a telephone call with my Associate that day, Ms Annick Houle of O’Connor & Houle confirmed she would be away between 13 December 2018 and 21 January 2019. A Notice of Listing was subsequently issued scheduling the matter for hearing on 31 January 2019.

[5] On 18 December 2018, Ms Templin wrote to the Commission advising that the hearing date of 31 January 2019 was close to when she was due to give birth. Ms Templin sought an adjournment of the matter to March or April 2019, an extension to file her material and requested the hearing take place via telephone. On the same day, I caused correspondence to be sent to the parties advising that I had determined to vacate the directions and the 31 January 2019 hearing date, and I requested that Ms Templin advise my chambers when she was in a position to proceed with the matter.

[6] In response to an email sent from my chambers on 2 April 2019, Ms Templin advised she wished to proceed with her application from the beginning of May 2019. Ms Houle, however, advised she would be overseas from 22 April to 31 May 2019 and therefore would be unavailable to attend a hearing during that time.

[7] On 9 April 2019, a Notice of Listing scheduling the matter for hearing on 14 June 2019 was sent to parties. The directions for the filing of material were complied with by both parties and the hearing date was later amended to 18 June 2019.

The Hearing

[8] The hearing in relation to Ms Templin’s application for an extension of time was conducted via telephone on 18 June 2019.

[9] Ms Templin gave evidence in support of her application for an extension of time and had an interpreter available to assist her. O’Connor & Houle presented its submissions through both Ms Houle and Mr Stephen O’Connor, both of whom also gave evidence.

Chronology of events

[10] Ms Templin commenced employment with O’Connor & Houle on or around 16 July 2018. On 4 October 2018, she wrote to O’Connor & Houle advising:

“As already discussed with Stephen [O’Connor] I will be moving with my partner to West Gippsland at the start of the new year. This unfortunately means I will be leaving the office on the 21st of December.

One of our reasons for moving and also the reason for such long-notice is that we will be having a baby in the new year.

Between December and now I will have one scheduled doctor’s appointment during working hours. If it’s possible I would take the day off as personal leave. It is Wednesday 7th of November, the day after the public holiday.

Thanks for your understanding and I look forward to finishing up the rest of the year with you both and Amy.”

[11] At the hearing, Ms Templin said that before she sent this email, she had discussed her last working day with Mr O’Connor and 21 December 2018 was agreed. Mr O’Connor said that he was delighted for Ms Templin when she advised him that she was pregnant but that when she said to him that she would be finishing on 21 December 2018, he did not indicate agreement at that time. He said he simply asked her to put her resignation in writing and he would discuss it with Ms Houle. Mr O’Connor said that “a couple of weeks later” he and Ms Houle had decided that it would be better that Ms Templin leave in a “normal” timeframe of two weeks and accordingly, on 19 October 2018, Ms Houle responded to Ms Templin’s email in the following terms:

“Further to your email of 4 October 2018 advising us of your resignation, we hereby formally accept your resignation and congratulate you on your good news and plans for the future.

Thank you for your offer to work until the 21[st] of December, however we have reviewed our work and staffing commitments ahead and we are unfortunately not in a position to accept this length of notice, which exceeds that stated in the enterprise employment agreement.

We thereby advise that your last day of work will be 2 November 2018 and that your leave entitlements will be paid up to that day.”

[12] Ms Templin’s last day of work was 2 November 2018. She said she questioned the truthfulness of the reason given by her employer for bringing her termination date forward, as she said O’Connor & Houle were advertising the same position as her role on the “Australian Institutes of Architects Vic Chapter Job Notice Board” at the time. Ms Templin annexed to her Application a copy of a job advertisement for her role, which she said was displayed on the internet on 19 October 2018. 3 Ms Templin contends her employment was terminated because she was pregnant and had requested leave due to her pregnancy.

Extension of Time

[13] The Commission may extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s.366(2) of the Act. These are:

(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.

[14] Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[15] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 4 (Nulty), 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." [Endnotes not reproduced]

Section 366(2)(a) - the reason for the delay

[16] The 21 day time period for Ms Templin to make a general protections application pursuant to s.365 of the Act expired on Friday 23 November 2018. As outlined in paragraph [2] above, given Ms Templin filed the Application by email at 10.32pm on Saturday 24 November 2018, the Application was one day late.

[17] Ms Templin said the following five circumstances led to the delay in filing the Application:

1) Due to the fact she was dismissed and due to her pregnancy, she felt “a lot of emotional stress” and that she had been treated unfairly, and so she was unable to dedicate “whole blocks of time” to the lodgment of the Application;

2) Having lived in Australia for less than one year and with English being her second language, she said it was particularly difficult for her to understand things and she required extra time to research and understand that what had happened to her was adverse action;

3) English speakers who assisted her had limited time due to work commitments;

4) Time was spent during the 21 day timeframe for lodgment to pursue lost superannuation payments from O’Connor & Houle; and

5) Time was also spent during the 21 day timeframe for lodgment attending a scheduled hospital visit as part of her pregnancy care.

[18] When I asked Ms Templin to explain what period the “whole blocks of time” she was unable to dedicate covered, she told me she was affected for the whole time from her dismissal on Friday 19 October 2018 and particularly after her conversation with Mr O’Connor on Monday 22 October 2018.

[19] As to when it was that she started her research into her rights, Ms Templin said she could not recall the exact day but assumed it would have been after the email correspondence she had with Ms Houle on 30 October 2018. 5 She also made the submission that there are different workplace rights in Germany.

[20] I asked Ms Templin to expand upon what she meant when she referred to the limitations of the English speakers assisting her and she told me that at the material times, her partner was commuting to Gippsland for work and absent from 6.30am -7.30pm, such that she could not discuss matters with him during the week for more than a few hours. O’Connor & Houle submitted Ms Templin’s written and spoken English is near perfect and it did not consider that language was in any way a barrier to Ms Templin voicing her concerns to it or the Commission in a timely manner. A copy of Ms Templin’s curriculum vitae was annexed to its submissions and recorded under qualifications, languages, “English (fluently).” 6

[21] In terms of other activities that impacted upon her time during the 21 day timeframe for lodgement, Ms Templin told me that upon finishing work on 2 November 2018, she used up time contacting her superannuation fund and O’Connor & Houle, and had also been subjected to a delay in receiving her final payment of wages because she needed to confirm her working hours, a task she did not realise or understand was her responsibility. Ms Houle disputed this evidence of Ms Templin. She said that addressing the superannuation payments would not have taken long. She said the situation was that Ms Templin had changed her superannuation details, requiring O’Connor & Houle to request particulars of the new details from Ms Templin before being able to pay her the superannuation. As to the wages, Ms Houle said she emailed Ms Templin a payslip on 2 November 2018 and sought confirmation that the calculations it outlined were correct before making payment but that Ms Templin did not provide such calculations until 12 November 2018, whereupon payment to her was immediately made.

[22] In terms of the hospital visit, Ms Templin told me it took most of the day on 7 November 2018 and she went home that evening. She said this was the only hospital visit during the 21 day timeframe for lodgment.

[23] I asked Ms Templin about the contact she had with the Commission during the 21 day timeframe for lodgment. Ms Templin was somewhat vague in her recollection when I asked whether she had had a telephone conversation with a Commission staff member, although she assumed “she was asking about legal advice” and “workplace rights” and that “maybe” the 21 day time limit was mentioned.

[24] Commission records reveal that Ms Templin was sent an email by Ms Joann Geltner of the Commission at 3.38pm on Wednesday 21 November 2018, which stated:

“Dear Sonja,

Further to your enquiry, I am pleased to send you some information which may be able to assist you further.

The Workplace Advice Service enables eligible unrepresented individuals and employers to have access to free legal assistance provided by participating law firms and community legal services.

The Service provides a consultation of no more than one hour with a lawyer who will provide preliminary advice concerning applications to the Commission.

Attached you will find an FAQ for Participants and a Consent Form. Please complete and return the Consent Form in order to arrange an appointment.

Please send the completed Consent Form to wacmelbourne@fwc.gov.au …”

[25] Ms Templin attached to her submissions an email she received from the Commission’s Workplace Advice Clinic at 4.37pm on Friday 23 November 2018. 7 This email confirmed an appointment had been booked with the Springvale Monash Legal Service at 12.30pm on 29 November 2018 for the purpose of receiving independent legal advice.

[26] The Commission’s records also reveal additional email correspondence with Ms Templin on 23 November 2018. Firstly, there is an email sent by Ms Templin to the Commission at 6.31am stating:

“Dear Joann,

Thank you for sending through the forms for free legal advice. I have filled them out and passed them on already.

I have one further question regarding the date I have to hand in Form 8 for the general protections application.

My last working day was the 02/11/18 – does the 21 day timeframe for handing in the application end today 23/11/18 or tomorrow 24/11/18? ...”

[27] A second email was sent by Ms Templin to the Commission at 7.19am on 23 November 2018, stating:

“Dear Sir or Madam,

I have been in touch with Joann but she is on holiday until Monday.

Can anyone else answer my question regarding the 21 day timeframe for a general protections application – see email below? I would like to make sure so I don’t miss the opportunity…”

[28] In reply, Ms Templin was sent email advice by the Commission at 9.51am on 23 November 2018, stating:

“The 21 days for lodgement does not include the date that the dismissal took effect. This means that day one commences the day following the dismissal.

Additional information about how to calculate the 21 day time frame can be found here.”

[29] In response to my questions about these emails and her knowledge of the 21 day time limit, Ms Templin was again somewhat vague. She thought she had discovered the 21 day time limit in the week leading up to 23 November 2018, possibly reading through the “guidelines” or accessing the Commission’s website. She also recalls receiving the Commission’s email dated on 23 November 2018, with the link regarding calculating the 21 day time frame.

[30] In answer to my question as to what she then did on 23 November 2018, Ms Templin said she worked on the Application and her response to my question as to why she did not file it until 10.32pm on 24 November 2018, Ms Templin said it was a “compounding effect of all reasons” and that to finish, she required the support of a “native speaker” which she had on 24 November 2018.

[31] I asked Ms Templin upon which date she thought the 21 days expired and she said “It was complicated to me…I thought it was Saturday.” When I asked her why, she said “I must have calculated it…I can’t recall.”

[32] Ms Templin also attached two medical consultation notes to her submissions. The first consultation note is dated 25 October 2018 8 and there was also a medical certificate certifying her unfit for work from 25 to 26 October 2018 inclusive.9 These documents related to events prior to the dismissal, albeit they indicate Ms Templin was under stress. The second consultation note is from an appointment on 26 November 2018,10 which was two days after Ms Templin filed her Application and indicated anxiety associated with the loss of her employment.

[33] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 11 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,12 the Full Bench explained the approach to be taken by reference to the following example:

“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.” 13

[34] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.366(2)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis): 14

“[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[35] It was held in Giles v Mandurah Aquatic and Recreation Centre that it is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options. 15 Further, it has previously been found, it is common for employees to suffer shock and trauma as a result of dismissal from employment16 and it was said in Casey v Guardian Community Early Learning Centres:

“…stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.” 17

[36] While I accept that Ms Templin likely suffered some distress following the termination of her employment and was initially unsure regarding the ways in which she could challenge it, I am of the view this state of affairs is not unusual.

[37] Further, the medical evidence Ms Templin submitted does not support a finding that she experienced a level of incapacity following her termination creating circumstances which justify an extension of time. I am not persuaded that either the one day she spent at a hospital attending medical appointments or the time she spent finalising her superannuation and final pay are factors which give rise to a finding of exceptional circumstances.

[38] I have taken into account that Ms Templin is a German national and started from a position of having to navigate laws she was unfamiliar with. However in Nulty, the Full Bench also held:

“[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.”

[39] Further, it is clear Ms Templin had undertaken some research into her rights and was aware of the 21 day time limit prior to its expiration. She had also managed to complete the necessary paperwork for the Workplace Advice Service and had been furnished with information and resources from the Commission in relation to the 21 day time limit by 9.51am on the morning of the 21st day after her dismissal had taken effect.

[40] Ms Templin’s explanation for not filing until late on 24 November 2018 was that she required the assistance of a “native” English speaker in order to do so. I find this unpersuasive. While I have taken into account the fact that English is her second language, Ms Templin’s correspondence with the Commission on 23 November 2018 was articulate and my observation of her during the hearing is that her proficiency in the English language is most commendable. With one exception, Ms Templin fielded all my questions without requiring the assistance of the interpreter and she also responded to the evidence and submissions of O’Connor & Houle without requiring interpreter assistance. The absence/unavailability of Ms Templin’s partner from 6.30am-7.30pm from Monday to Friday during the 21 day timeframe, rendering him unable to provide assistance, is not a factor which gives rise to a finding of exceptional circumstances. If the application Ms Templin intended to make was a priority for her, she and her partner should have made it so, and in a more timely fashion.

[41] Having considered the various reasons Ms Templin has provided for her delay in making the Application, I am not satisfied that she has provided a credible explanation for the delay in filing it. This factor weighs against a finding of exceptional circumstances and granting Ms Templin an extension of time.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

[42] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 18

[43] Ms Templin said she questioned the dismissal on two occasions, the first during a telephone conversation with Mr O’Connor on 22 October 2018 and then in email correspondence with Ms Houle on 30 October 2018.

[44] In the telephone discussion with Mr O’Connor on 22 October 2018, Ms Templin said she questioned the dismissal by asking Mr O’Connor whether she had a choice to talk to him about her further employment or not. She said Mr O’Connor “did not really reply to that question.” Ms Templin also said she queried why Mr O’Connor had not discussed her dismissal with her instead of sending the email on a Friday night. Ms Templin said she was otherwise too distressed to discuss matters further on that day.

[45] In her email correspondence to Ms Houle on 30 October 2018, which she said she sent because she was very stressed about the dismissal, Ms Templin said she believed there had been a misunderstanding and it was not her intention to resign as at the date of her email but due to her pregnancy, she thought it was considerate to let them know her plans as early as possible for their planning. Ms Houle replied confirming the 2 November 2018 termination date, stating that O’Connor & Houle could not agree to a 21 December 2018 termination date due to its “current work commitments” and followed shortly after with an email requesting that Ms Templin return her office key and use the office doorbell to gain entry for the remainder of the week. Ms Templin submitted this lead her to believe there was no room for further discussion.

[46] O’Connor & Houle submitted Ms Templin was given several opportunities to discuss the matter with it, however she refused to enter into any discussions and at no time indicated she would take steps to dispute the matter.

[47] On balance, I am satisfied that Ms Houle took some action to dispute the dismissal taking effect on 2 November 2018 and this weighs in favour of a finding that there are exceptional circumstances.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)

[48] Prejudice to the employer will weigh against granting an extension of time. 19 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.”20

[49] Ms Templin submitted the one day delay on a weekend has not caused O’Connor & Houle to suffer any disadvantage or unfairness.

[50] O’Connor & Houle submitted it would have been constructive and less time consuming for all parties if Ms Templin had voiced her concerns ahead of her last day, as this would have allowed them to explain the situation more clearly, such that she did not develop ill-founded views that her pregnancy caused the situation.

[51] I acknowledge that the process of having to respond to Ms Templin’s application has impacted on O’Connor & Houle however, noting that the delay was one day, I am satisfied that there would be no greater prejudice to O’Connor & Houle caused by the Application being dealt with now than there would have been had it been made within the 21 day time period.

Section 366(2)(d) - the merits of the application

[52] The Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra-Network Technology Group v Kornicki21 stating:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 22

[53] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case” 23 for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

[54] Ms Templin’s case on the merits is that her employment was terminated not because of a downturn in work, but because she was pregnant and had requested leave due to her pregnancy. She bases her case on the fact she was only advised her employment would be terminated on 2 November 2018 after having applied for leave to attend a medical appointment and having advised O’Connor & Houle that she intended to resign effective 21 December 2018 due to her pregnancy. However, in relation to this assertion, I note that Ms Templin’s advice when tendering her resignation on 4 October 2018 was that she was leaving because she was going to be moving to West Gippsland at the start of 2019, albeit part of the reason for the move was that she and her partner were expecting a baby.

[55] O’Connor & Houle submitted Ms Templin was not dismissed but rather resigned from her position. It asserted her resignation was accepted, but having reviewed its workload and staffing commitments, they could not accept her offer to work until 21 December 2018 and therefore determined her last day of employment would be 2 November 2018. Mr O’Connor said O’Connor & Houle was a small practice, which had experienced a diminishing of its work over an 18 month period and in particular, had lost two major jobs at the time of Ms Templin’s resignation. He also said O’Connor & Houle almost exclusively undertakes work involving single dwellings but this area of its practice had dropped away. While Ms Templin disputed the O’Connor & Houle evidence about the work having dropped away, Mr O’Connor attested that he would demonstrate this if called upon to do so.

[56] Ms Templin also questions the legitimacy of the downturn in work reason given by O’Connor & Houle because of its job advertisement on the Australian Institutes of Architects website on 19 October 2018. The submissions of O’Connor & Houle and evidence of Mr O’Connor in relation to the job advertisement include:

  it was able to be placed on the Australian Institutes of Architects website without charge, as part of a service to members;

  it had been placed on the Australian Institutes of Architects website since May 2018 24 but was not active.

  it had been left on the website to attract potential candidates where the need arose but he allowed it to drop to the bottom of the list of job advertisements;

  this was preferable to taking it down altogether because it was easier to request the Australian Institutes of Architects to move an existing job advertisement to the top of the list rather than undertaking the process of placing a new advertisement on the website; and

  no candidates have been interviewed or hired since Ms Templin’s departure.

[57] The reason Ms Templin’s termination date was brought forward involves the resolution of contested issues of fact which I consider would only be able to be determined after a full hearing on the merits, including more fulsome evidence and the cross examination of relevant witnesses. I also apprehend that the arguments and counter arguments relating to whether the general protections provisions have been breached would most certainly be further developed.

[58] In these circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Section 366(2)(e) - fairness as between the person and other persons in a like position

[59] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 25considered this criterion and said:

“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 as 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.” 26

[60] I consider this criterion has a narrow application and while Ms Templin believes that she would not have been dismissed if she had not been pregnant or asked for personal leave to attend a medical appointment, I am not persuaded that the issue of fairness as between Ms Templin and other persons in a similar position is a relevant consideration in this matter. I consider it a neutral consideration in determining whether to grant an extension of time in this application.

Conclusion

[61] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis:

“[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 27

[62] I have considered each of the matters specified in s.366(2) of the Act. Having weighed each and considered them collectively, I am not satisfied that there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

[63] I have not been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) and I decline to exercise my discretion to extend the time for Ms Templin to make her Application.

[64] Accordingly, the Application is dismissed and an Order to that effect will be issued with this Decision.

esig

DEPUTY PRESIDENT

Appearances:

Ms S Templin for herself.

Ms A Houle and Mr S O’Connor for O’Connor & Houle Pty Ltd T/A O’Connor + Houle Architecture.

Hearing details:

2019.

Melbourne (telephone hearing):

18 June.

Printed by authority of the Commonwealth Government Printer

<PR710549>

 1   Fair Work Act 2009 (Cth) s.366(1)(a).

 2   Fair Work Act 2009 (Cth) s.366(2).

 3   Exhibit A8.

 4   (2011) 203 IR 1.

 5   Exhibits A6 and A7.

 6   Exhibit R3.

 7   Exhibit A10.

 8   Exhibit A3.

 9   Exhibit A5.

 10   Exhibit A4.

 11   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 12   [2016] FWCFB 349.

 13   Ibid at [31].

 14   [2018] FWCFB 901.

 15   [2015] FWC 1881 at [8].

 16   Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

 17   Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare [2014] FWC 4002 at [16].

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 19   Ibid.

 20   Ibid.

 21   Telstra-Network Technology Group v Kornicki (1997) 140 IR 1; Print 3168, 22 July 1997.

 22   Ibid at 11.

 23   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

 24   Exhibit R4.

 25   [2016] FWCFB 6963.

 26   Ibid at [31].

 27   [2018] FWCFB 901.