Angela Williams v Ngiyambandigay Wajaarr Aboriginal Corporation
[2024] FWC 2746
•2 OCTOBER 2024
| [2024] FWC 2746 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Angela Williams
v
Ngiyambandigay Wajaarr Aboriginal Corporation
(C2024/5990)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 2 OCTOBER 2024 |
General protections application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Angela Williams (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against her former employer, Ngiyambandigay Wajaarr Aboriginal Corporation (Respondent).
The Applicant seeks an extension of time to lodge her general protections application in the Commission.
I conducted a hearing, by telephone, on 24 September 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from her employment with the Respondent took effect on 2 August 2024. The Applicant lodged her general protections application in the Commission on 25 August 2024.
Section 366(1) of the Act states that an application under s 365 must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 23 August 2024. The application was therefore filed two days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
Relevant facts and submissions
In her general protections application, the Applicant gave the following explanation for her application being filed outside the 21 day period provided for in the Act:
“I started the lodgement process under the wrong lodgement 13th August. My mother in law passed away on the 24th July and her Funeral was Friday 9th August we had our head Matriach of our family pass away of the Ballangarry Clan. This was major loss to Gumbaynggirr, Burrgadi Family and she was buried on the 24th August 2024.”
The Applicant provided a subsequent timeline of events which establishes the following chronology:
(a)On 2 August 2024, the Applicant logged on to her computer and was made aware of an email from the Respondent terminating her employment. The Applicant then emailed the termination letter to her own personal email address.
(b)On 6 August 2024, Aunt Shirley Ballangarry, the oldest female matriarch of the Ballangarry family and blood aunt to the Applicant, passed away.
(c)On 9 August 2024, the Applicant attended the funeral of her mother-in-law, Valerie Blair, who passed away on 24 July 2024, at Macksville Catholic Church.
(d)On 13 August 2024, the Applicant’s cousin, Martin “George” Greenup Ballangarry, passed away.
(e)On 13 August 2024, the Applicant became aware of her rights to make an application to the Commission after talking to family members. The Applicant commenced filling out an unfair dismissal application form and saved a copy of her incomplete F2 unfair dismissal application form at 3:12pm on 13 August 2024. While filling out this form the Applicant became aware that an unfair dismissal application may be the wrong type of application for her to make in light of her particular circumstances. The Applicant planned to seek advice from her family on how to progress the matter.
(f)On 24 August 2024, a funeral was held in relation to the passing of Aunt Shirley Ballangarry. The Applicant attended the funeral at Bowraville Catholic Church
(g)On 25 August 2024, the Applicant lodged her general protections application form in the Commission.
(h)On 11 September 2024, the Applicant attended the funeral of her cousin, George Ballangarry.
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing her general protections application. The Applicant was able to at least partially complete an unfair dismissal application form on 13 August 2024. On the same day, the Applicant became aware that an unfair dismissal application may not be appropriate for her circumstances. The Applicant still had 10 days to complete and file a general protections application, which is a basic form and does not take long to prepare. The general protections application filed by the Applicant on 25 August 2024 is less than three pages in length. It would not have taken long to prepare. Although I have sympathy for the Applicant in relation to the passing of her mother in law, Valerie Blair, on 24 July 2024, Aunt Shirley Ballangarry on 6 August 2024, and George Ballangarry on 13 August 2024, I do not consider that those events and the funerals the Applicant attended on 9 August 2024, 27 August 2024 and 11 September 2024 respectively provide an acceptable or reasonable explanation for the delay in filing her general protections application two days late on 25 August 2024.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 25 August 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Action taken to dispute the dismissal
There is no suggestion in the material before the Commission that the Applicant took any step to dispute her dismissal other than filing her general protections application. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant contends that she was dismissed because she was temporarily absent from work because of illness or injury. The Respondent denies this allegation and contends that the Applicant was dismissed for misconduct, including inappropriate text messages sent by the Applicant to staff before and after work hours and repeated absences from work without formal approval.
The facts, circumstances and reasons for the Applicant’s dismissal would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Applicant’s general protections application. Having regard to all the circumstances, I consider the merits of the Applicant’s general protections application to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Notwithstanding that I have sympathy for the Applicant, taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the general protections application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms A. Williams appeared for herself, together with her support person, Mr T. Towney.
Mr N. Brennan, Public Officer of the Respondent, appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
24 September.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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