Applicant v Red Lily Health Board (Aboriginal Corporation)
[2024] FWC 902
•18 APRIL 2024
| [2024] FWC 902 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Applicant
v
Red Lily Health Board (Aboriginal Corporation)
(C2024/235)
| COMMISSIONER RIORDAN | SYDNEY, 18 APRIL 2024 |
Application to deal with contraventions involving dismissal – application filed out of time – decision on the papers
In accordance with a Confidentiality Order issued in this matter by consent of the parties, the Applicant’s identity has been anonymised and is referred throughout this Decision simply as ‘the Applicant’.
On 12 January 2024, the Applicant filed an application under s.365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal by Red Lily Health Board (Aboriginal Corporation) (the Respondent) on 18 December 2023.
The Applicant filed their s.365 application 25 days after their dismissal took effect, which is 4 days outside the 21-day statutory timeframe.
Directions were originally set for filing of materials addressing the out of time issue with a Jurisdictional Hearing to be conducted by Video using Microsoft Teams on 18 March 2024.
However, on 15 March 2024, the Applicant’s representative wrote to my Chambers requesting that they be granted an opportunity to file further written submissions and that the matter be dealt with on the papers.
The Jurisdictional Hearing was vacated and a Mention conducted by telephone on the morning of 18 March 2024, further to which, directions were issued for the filing of supplementary materials by both parties.
By consent of the parties, the jurisdictional matter is determined on the papers as follows.
Legislative Provisions
The relevant provisions of the FW Act are:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
366 Time for application
(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:
(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.”
The meaning of exceptional circumstances was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[1] where it was held:
“[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.
[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.”
I now turn to the consideration of the matters set out in section 366(2) of the FW Act to determine whether an extension of time should be granted.
Section 366(2)(a) – reason for the delay
In their Form F8 application, the Applicant provided that their dismissal occurred close to Christmas without any prior warnings. The Applicant stated that they tried to seek legal help, however, it was difficult during the festive season as many of the legal services were closed for the Christmas period.
Further, in a witness statement filed in relation to the out of time issue, the Applicant stated that they had been told by the Respondent on 13 December 2023 “not to return to work” and, therefore, they were unsure whether their actual termination date was 13 December 2023 or 18 December 2023 when they received their Termination Letter.
The Applicant also stated that they travelled with their family from Jabriu to Darwin on 22 December for Christmas. They did not return to Jabriu until 2 January 2024.
The Applicant stated that they wrote to the Respondent on 6 January 2024, seeking meetings and discussions regarding their termination, however, they received no response.
The Applicant stated that on 9 January 2024, they attended the Jabriu Health Clinic and was diagnosed with acute stress resulting from their dismissal. They attached copies of the relevant medical notes.
The Applicant stated that on 10 January 2024, they spoke with the United Workers Union who assessed the matter and advised that the termination was ‘pre-existing’, therefore, the Union would not provide any assistance.
The Applicant stated that when they were feeling better on 11 January 2024, they spoke with the NT Legal Aid Commission who referred them to KJ Legal.
The Applicant attended an appointment with KJ Legal on 12 January 2024, and was advised that they could lodge a general protections applications, which they filed with the Commission on 12 January 2024.
The Respondent submitted that in relation to the Applicant’s health issues, the medical notes relied on by the Applicant do not speak to the Applicant’s capacity, nor do they indicate that the condition prevented the Applicant from making a claim within the time limit.
The Respondent submitted that, while unfortunate, experiencing stress from a dismissal is not unusual or uncommon. The Respondent relied on the decision in Rose v BMD Constructions Pty Ltd,[2] which provides that:
“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.”[3]
The Respondent also relied on the decision in Bradley v The Trustee For Gibson Family Trust,[4] which provides that:
“The Applicant also submitted a letter from his doctor dated 27 December 2023. The letter outlines why he was unable to file his application within the statutory timeframe. The letter states:
“Mr. Matthew patient of our clinic since 2019. He was recently dismissed from his long-term job. It had affected him deeply because this driving instructor job was his dream job. He was working in the same job for more than 6 years now. He moved all his family members and his parents to this town because he was so happy in his jobs. Due to the dismissal from his job, he had been overwhelmed by the acute stress, depressed mood and he could not get out of the bed for the last couple of days of the application deadline. He could not meet this 21 days timeline for the application of unfair dismissal in the given time for the above reason.
…
I acknowledge that the Applicant appears to have suffered shock and disappointment after losing his role…
I have considered the letter provided by his doctor and whilst it makes commentary about the Applicants experience, I find it falls short of providing a medical diagnosis sufficient to grant an extension of time.”[5]
(Respondent’s emphasis)
Further, the Respondent relied on the decision in Taylor v Eagers Automotive Limited,[6] which relevantly provides:
“I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition or incapacity is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
The Applicant stated that following his dismissal he “was not in a great place mentally” and while he accepted that information about the 21 day time limit was readily available, he stated that he was not mentally capable of proceeding with an application against the Respondent.
…
While the Applicant submitted that he was not mentally capable of making the Application earlier than 17 January 2024, he did not adduce any medical evidence demonstrating incapacity such as to prevent the lodging of the Application within the 21 day period.”[7]
(Respondent’s emphasis)
The Respondent submitted that in relation to the Applicant’s medical condition, the evidence which is available to the Commission provides a contrary indication. The Respondent noted that the Applicant wrote to the Respondent on 6 January 2024 and responded directly to the email attaching the Termination Letter. The Respondent submitted that both emails were coherent and gave no indication of incapacity.
In relation to the Applicant’s capacity to receive legal advice over the holiday period, the Respondent noted that the Applicant’s evidence does not explain what happened from 13 December when the Applicant thought they had been dismissed, or what happened from 18 December following the Applicant receiving their Termination Letter. The Respondent submitted that on the Applicant’s evidence, the Applicant did not seek to obtain advice or engage with any advisors until after 8 January 2024.
Further, the Respondent submitted that the Commission is designed for persons to generally represent themselves, and that information and resources are readily available on the Commission’s website and the internet at large.
I find that the reasons for the delay as relied on by the Applicant do not satisfy the necessary incapacity to warrant the granting of an extension of time. I am satisfied that the Applicant had an opportunity to make enquiries or undertake research before Christmas in relation to their dismissal. This weighs against granting an extension of time.
Section 366(2)(b) – action taken to dispute dismissal
The Applicant stated that they wrote to the Respondent twice on 6 January 2024, seeking to discuss their dismissal. However, the Applicant did not receive any response from the Respondent.
The Respondent noted that the two emails sent by the Applicant were sent on a Saturday, and that neither email flagged a claim based on General Protections or otherwise disputed the lawfulness of the dismissal. The Respondent acknowledged that the Applicant questioned the fairness of the dismissal in the second email, however, it submitted that this “does not give rise to apprehension of a claim”.
I find that this issue weighs in favour of granting an extension of time.
Section 366(2)(c) – prejudice to the employer
The Applicant made no submissions in this regard, and the Respondent submitted that this is a neutral factor.
Accordingly, I find that this is a neutral consideration.
Section 366(2)(d) – merits of the application
The FW 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 application are set out in the materials that have been filed and I do not repeat them here.
In the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[8] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
For the purposes of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.”[9]
I am satisfied that there will be contested submissions in a merits-based hearing. As a result, I adopt the obiter in Kornicki.
For these reasons, I find that the merits of the application are a neutral consideration.
Section 366(2)(e) – fairness between the person and others in a position similar
The Respondent submitted that it would be unfair to applicants which have come before the Commission in like positions to the Applicant, for the Applicant to be granted an extension of time to file their application.
The Applicant refuted that the positions of the applicants in the cases relied on by the Respondent are similar to that of the Applicant in the present dispute. The Applicant submitted that in Rose v BMD Constructions, the applicant had filed significantly out of time and did not take any action to dispute her dismissal. In Bradley v The Trustee for Gibson Family Trust, the applicant was aware of their dismissal date and able to seek legal advice prior to the time limit. And in Taylor v Eagers Automotive, the applicant was significantly out of time and found employment during the period her argued he did not have capacity to apply to the Commission. The Applicant submitted that due to the dissimilar circumstances, it would be unfair for the Applicant’s application to be dismissed.
I find that this is a neutral consideration.
Conclusion
I have taken into account all of the submissions that have been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
For the reasons stated above, I find that the Applicant has not substantiated an ‘exceptional circumstance’. In accordance with the obiter in Nulty, I have decided not to grant an extension of time for the Applicant to file their unfair dismissal application.
The Application is dismissed.
I so Order.
COMMISSIONER
[1] (2011) 203 IR 1.
[2] [2011] FWA 673.
[3] Ibid at [10].
[4] [2024] FWC 360.
[5] Ibid at [14] and [19]-[20].
[6] [2024] FWC 550.
[7] Ibid at [25]-[28].
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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