[2014] FWC 5023 FAIR WORK COMMISSION DECISION



Fair Work Act 2009

s.394—Unfair dismissal

Maria Paz Mori

v

Embassy of Peru

(U2014/4658)



COMMISSIONER DEEGAN CANBERRA, 25 JULY 2014

Application for relief from unfair dismissal - Extension of time.

[1] This is an application for relief from unfair dismissal lodged by Ms Maria Paz Mori (the applicant) in respect of the termination of her employment by the Embassy of Peru (the respondent).

[2] According to the application the termination of the applicant’s employment occurred on 25 October 2014. The application was filed on 15 February 2014.

[3] As the application was filed more than 21 days after the termination of the applicant’s employment took effect it is necessary to determine, in accordance with s.394(3) of the Fair Work Act 2009 (the FW Act) whether further time will be allowed for lodgement.

[4] The application was served on the respondent in accordance with the applicable diplomatic protocols. The matter was listed for hearing of the extension of time matter only on 3 July 2014.

[5] Prior to the hearing the Embassy delivered a third person note concerning the matter to the Department of Foreign Affairs and Trade and copied that note to the Fair Work Commission. The respondent advised that it did not submit to the jurisdiction of the Commission and would not be taking any further steps in the matter.

[6] The hearing proceeded in the absence of the respondent.

The Applicant’s Case

[7] Mr J Bruyn, a friend of the applicant, presented her case. As the applicant has little or no English she gave her evidence through a Spanish interpreter.

[8] The applicant had filed a statement of evidence which had been prepared for her by Mr Bruyn. At the hearing she was taken through that statement, and where her evidence was relevant to the question of the extension of the time she was asked to confirm the accuracy of that evidence. She also gave additional evidence in answer to some questions put by Mr Bruyn and by the Tribunal.

[9] According to the applicant she had been employed by the respondent since 2006. She signed her first one year contract of employment in Peru. She signed a new one year contract at the Embassy of Peru in Canberra each year thereafter. She lived in the Embassy and performed mainly domestic duties.

[10] The applicant claimed to have signed her final one year contract in early January 2013. This contract was due to expire on 31 December 2013. The applicant claimed that on 25 October 2013 she was advised by Embassy staff that her employment was to terminate immediately and that she was to catch a plane back to Peru the following Monday 28 October.

[11] The applicant claimed to have been very upset by this news. She stated that she had not been told why her contract was being terminated early, and was concerned that she would not be paid her entitlements. She requested assistance from some Australian friends who helped her to move out of the Embassy over the next two days.

[12] The applicant visited the Embassy on 3 or 4 December 2013 in an attempt to collect her payments and plane ticket, but left without either due to the attitude of Embassy staff.

[13] On or about 9 December 2013 an appointment was arranged for the applicant with Legal Aid. A solicitor then wrote to the Embassy on the applicant’s behalf, setting out the applicant’s concerns and requesting that the applicant be provided with details of the monies owed to her and a copy of any document the Embassy wished to have the applicant sign in order to obtain the monies and her plane ticket. A further request was made that the monies be paid into the applicant’s bank account and arrangements made for her to collect the plane ticket from the airline to avoid the necessity for the applicant to attend at the Embassy given her treatment on the day she attended earlier that month.

[14] The applicant put forward the following reasons for her failure to lodge her application in time:

● Failure of the employer to provide written notice of dismissal until 18 December 2013 (by letter dated 17 December 2013); ● Ill health at the time she was informed that she was to leave the Embassy and return to Peru (medical certificate provided) ● Ill health for the period following her departure from the Embassy (supported by a medical certificate dated 14 February 2014 indicating that the applicant was suffering from acute stress reaction, anxiety and depression) ; ● Limited ability to speak English and minimal capacity to read in Spanish; ● Uncertainty as to the legality of her presence in Australia having left the Embassy given that she was notified that her s.426 visa was to be cancelled (though a bridging visa was granted on 5 February 2014); ● Lack of financial means as the Embassy had withheld her salary and termination payments.

[15] It is apparent from the letter of termination provided to the applicant by the Embassy on 18 December 2013 that the view of the Embassy is that the applicant’s employment was terminated with effect from 31 October 2013.

[16] According to the third party note sent by the Embassy, it is the Embassy position that the Commission has no jurisdiction to determine the applicant’s claim given that the applicant was a Peruvian national employed by the Embassy under Peruvian law.

Consideration

[17] As there was no appearance for the Embassy in this matter I have determined the question of extension of time on the evidence of the applicant and the materials before me in the hearing.

[18] The application was lodged on 15 February 2014. This is 107 days after the date the Embassy claims as the date of termination of employment. Whatever the actual date of termination the application was lodged more than 21 days after the date.

[19] It is for the applicant to satisfy the Commission that exceptional circumstances exist that warrant the Commission allowing further time for lodgement of an application for an unfair dismissal remedy.

[20] The legislation relevantly provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWC for an order under Division 4 granting a remedy. (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as FWC allows under subsection (3). (3) FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.

[21] The numerous reasons that contributed to the delay in the filing of this application are set out in paragraph [14].

[22] The applicant was first made aware that it was intended that she no longer work at the Embassy about 25 October 2013. At that time she made it clear that she was not happy with the proposal that she fly to Peru on 28 October 2013 as proposed by the Embassy. She decided to leave the Embassy and seek refuge elsewhere. She attended at the Embassy in early December to press her claims but was unsuccessful. She also tried to pursue her claims through the letter sent on her behalf by Legal Aid. The applicant had also approached the Department of Foreign Affairs and Trade seeking support in her dealings with the Embassy. It was as a result of this approach that the written notice of termination was provided on 18 December 2013.

[23] On the limited evidence as to the circumstances of the termination, I am unable to conclude that the application is completely without merit and this therefore is a neutral consideration and I make no finding as to merit. I note however the objection to jurisdiction raised by the Embassy which would require resolution by the Commission before any question of the merits of the substantive application could be heard. The jurisdictional matter was not able to be determined at the hearing dealing with extension of time given that it was only brought to the attention of the applicant and the tribunal on the day of the hearing.

[24] I am unable to find that any prejudice would be suffered by the employer caused by the delay in filing the application. The matter of fairness as between the applicant and other persons in a similar position is of little relevance in the circumstances of this case.

[25] It is for the applicant to satisfy the Commission that exceptional circumstances exist that warrant the Commission allowing further time for lodgement of an application for an unfair dismissal remedy.

[26] The question of exceptional circumstances was dealt with by a Full Bench of the Commission in the decision of Nulty v Blue Star Group 1

[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.

[27] While any one of the matters raised by the applicant as the reason for the failure to lodge the application within the statutory time frame might not, of itself, be sufficient evidence of ‘exceptional circumstances,’ I am satisfied that the combination of the matters, with special reference to the applicant’s visa status, amounts to exceptional circumstances, such that additional time for filing of the application should be allowed.

[28] I note however that it appears that sections 12(3) and 12(5) of the Foreign States Immunities Act 1985 may well present an insurmountable jurisdictional bar to further dealing with the application by the Commission. I do not determine that matter, however, as I have heard no argument from the parties.

Appearances:

Mr J Bruyn, For the applicant.

No appearance for the respondent.

Hearing details:

2014.

Canberra:

July 3.

1 [2011] FWCFB 975

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