Belinda Inman v Positive Care Solutions Pty Limited

[2023] FWC 1521

[2023] FWC 1521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Belinda Inman
v

Positive Care Solutions Pty Limited

(C2023/140)

COMMISSIONER SCHNEIDER PERTH, 24 JUNE 2023

Application to deal with contraventions involving dismissal

1. Mrs Belinda Inman (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she has been dismissed from her employment with Positive Care Solutions Pty Limited (the Respondent) in contravention of Part 3-1 of the Act.

1. It appears that the application may have been lodged outside the required 21-day period.

1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time and, if it was, whether there are exceptional circumstances giving rise to an extension of time.

Relevant law

1. Section 366(1) of the Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

1. As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

1. Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.

1. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]

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.[5]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]

1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]

1. This decision contemplates the relevant considerations in section 366(2) of the Act in the context of the current application.

1. The dismissal of the Applicant took effect on 12 December 2022.

1. The final day of the 21-day period was therefore 3 January 2023 and ended at midnight on that day.

1. The application was made on 11 January 2023. The application was made 8 days late.

Submissions – Evidence – Criteria

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 January 2023.

1. The delay is the period commencing immediately after that time until 11 January 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]

1. The Applicant advanced the following reasons for delay:

·  The Applicant was experiencing mental health challenges prior to her dismissal and during the time period between the end of her employment and the filing of this application.

·  The period in question included the Christmas Holiday period.

1. In relation to the reason for the delay, the Respondent submits that the reasons advanced by the Applicant do not warrant exceptional circumstances consistent with previous findings of the Commission.

1. The Respondent submits that the Applicant was still able to communicate with the Respondent during this period and highlights that the Applicant had emailed the Respondent during the 21-day time period.

1. The Respondent submits that the medical evidence on hand does not demonstrate that the Applicant was incapacitated for a significant portion of the 21-day time period such that would warrant exceptional circumstances and an extension of time.

1. The Respondent also submits that the Applicant was aware of the 21-day time limit as the Applicant had been involved in matters before the Commission while being employed by the Respondent.

1. The Applicant provided copies of workers’ compensation paperwork, including the documents listed below, in support of her submissions:

·  First Certificate of Capacity, dated 8 December 2022.

·  Second Certificate of Capacity, dated 22 December 2022.

1. The Respondent’s materials in support of its position included the below:

·  Evidence from Mr Ian Wilkinson (CEO), confirming receipt of four emails from the Applicant between 12 December 2022 and 23 December 2022.

·  Evidence that the Applicant had been providing medium and psychic services under the name of “Billie J Medium”. This included evidence that the Applicant was advertising her services during the 21-day filing period.

1. Having considered the evidence of the parties regarding the reasons for delay, I am satisfied that the reasons advanced by the Applicant would contribute to some delay in filing and weigh in favour of a finding of exceptional circumstances.

1. However, the reasons for delay, in isolation, do not warrant a finding of exceptional circumstances.

1. I note that this criterion is one of several the Commission must consider in coming to a conclusion on whether there are exceptional circumstances.

What action was taken by the Applicant to dispute the dismissal?

1. It is not in dispute that the Applicant did not take any action to dispute their dismissal prior to making this application on 11 January 2023.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. The Respondent submits that it would suffer prejudice if an extension of time were granted.

1. Specifically, the Respondent submits that the Applicant’s position with the Respondent is not being replaced by the Respondent.

1. The Respondent has not provided any substantive explanation as to how the above would be a material prejudice to the Respondent.

1. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

What are the merits of the application?

1. Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact.

1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[10]

1. It is not possible to make any firm or detailed assessment of the merits.

1. The Applicant has an apparent case, to which the Respondent has an apparent defence.

1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

1. This consideration is neutral.

Fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.

1. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

1. Briefly, to again highlight the general principles, 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.[11]

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.[12]

1. I am sympathetic to the challenges faced by the Applicant during her time in employment with the Respondent and in the period of time following the end of her employment with the Respondent.

1. Whilst I have sympathy for the Applicant, the Applicant is required to provide the required level of justification and evidence to the Commission for an extension of time to be granted by the Commission.

1. Based on the material and information provided, I am not satisfied that the Applicant has provided a sufficient reasoning and evidence to establish exceptional circumstances in order to warrant an extension of time being granted.

1. From the evidence provided, the Applicant is not unfamiliar with the process and requirements of the Commission. I find this weighs against granting an extension of time.

1. From the evidence provided, the Applicant was able to engage with the Respondent following her employment ending and contacted the Respondent on at least four occasions by email between 12 December 2022 and 23 December 2022.

1. Whilst the Applicant provided evidence in support of her extension of time request, in the form of her certificates of capacity, dated 8 December 2022 and 22 December 2022, the emails sent by the Applicant to the Respondent demonstrate that the Applicant was able to communicate with others and understood that her employment had ended.

1. It is also clear that the Applicant was not so incapacitated that she was able to engage in her medium and physic pursuits.

1. Although I do, to an extent, accept the Applicant’s submission that this work could not be considered as requiring the same effort as other more traditional forms of work, it does not weigh in favor of a finding that her condition affected her to the extent that she could not file an application form sooner.

1. As I have stated earlier, I find that is reasonable that the Applicant’s condition contributed partially to a delay in her filing her application.

1. However, in consideration of all criteria mentioned above, I am not satisfied that the existence of her condition, and the findings in the other considerations, constitute exceptional circumstances giving rise to an extension for the period of the delay.

1. Consistent with previous decisions of the Commission, [13] the evidence does not support the position that the Applicant was incapacitated to the extent that she was unable to file her application with the Commission within a shorter time following the required filing deadline.

1. Having regard to all of the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time.

1. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[14]

COMMISSIONER

[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.

[3] [2018] FWCFB 901, [39].

[4] [2011] FWAFB 975, at [13].

[5] [2011] FWAFB 975, at [13].

[6] [2018] FWCFB 901, [39].

[7] [2018] FWCFB 901, [40].

[8] [2018] FWCFB 901, [17].

[9] [2015] FWCFB 287, [12].

[10] [2011] FWAFB 975, [36].

[11] [2011] FWAFB 975, [13].

[12] [2011] FWAFB 975, [13].

[13] [2015] FWCFB 3435, [15] – [16]; [2020] FWCFB 3523, [39].

[14] [PR763569].

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