Carolyn McLean v Mcdonald's Australia Limited
[2024] FWC 2858
•15 OCTOBER 2024
| [2024] FWC 2858 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carolyn McLean
v
Mcdonald’s Australia Limited
(U2024/11435)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 15 OCTOBER 2024 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed.
Introduction
On 25 September 2024, Ms Carolyn McLean made an unfair dismissal application to the Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant contends that she was unfairly dismissed by McDonald’s Australia Limited, effective 3 September 2024.
Section 394(2) of the FW Act states that an application under section 394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
The period of 21 days ended at midnight on 24 September. The application was therefore filed one day outside the 21-day period.
For the application to proceed, Ms Mclean requires the Commission grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a hearing on 14 October 2024, at which the Applicant gave evidence in support of her application.
Extension of time
Additional time can be allowed under section 394(3) of the FW Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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.[4]
The delay required to be considered 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.[5] 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.[6]
The Applicant’s explanation for the one-day delay in making the application was that she did not know there was a time limit and has “been struggling with mental health” since it happened, as well as managing care for her young children.
In relation to the Applicant’s lack of knowledge that there was a time limit to make unfair dismissal applications, whilst understandable, it is neither unusual nor uncommon and it is well-established that not being aware of the law is not an exceptional circumstance. As the Full Bench in Nulty said:
“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.”[7]
As to the state of her health, the Applicant provided a medical certificate dated 8 October 2024 which certifies that she has been treated and reviewed for a mixed anxiety-depressive disorder in the past 6 months and remains on antidepressant medication.
Sometimes an applicant’s medical condition can be so significant that it affects their capacity to prepare and file an application. Broadly speaking, in cases where this has been found to be the case, specific medical evidence has been provided which not only shows that the person has a medical condition, but also that the medical condition has impaired the person’s capacity to make an application within the statutory time limit. However, the medical certificate provided by Ms McLean does not provide a basis to reach such a conclusion. It goes no further than evidencing that she has for at least six months, had a medical condition and is taking medication to deal with it. In my view, that is not sufficient to provide a reasonable explanation for the delay in making the application.
Although the delay is only one-day, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application.
The absence of an acceptable or reasonable explanation for much of the considerable delay in making the application weighs heavily against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect:
This is a neutral consideration as the Applicant did not become aware of the dismissal after it had taken effect.
Any action taken by the person to dispute the dismissal:
Similarly, this is a neutral consideration, as there was no other relevant action taken to dispute the dismissal.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any particular prejudice to the Respondent, and I have treated this as a neutral consideration.
Merits of the application:
The Applicant was dismissed for misconduct. The Applicant submits the dismissal was unfair because the reasons for dismissal were unfair and not true, and the process culminating the dismissal was not fair. The Respondent has not yet filed a response. In the circumstances, it is not possible to form any view about the merits or otherwise of the application, and so I have treated this as a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms McLean’s claim. However, cases will generally turn on their own facts.
No party raised any relevant matters concerning this consideration, and I have treated this as a neutral consideration.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of a finding of exceptional circumstances.
I am not satisfied that there are exceptional circumstances in this case. As a result, no additional time can be allowed for the Applicant to make her application.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
C. McLean, the Applicant, appearing on her own behalf.
A. Lim, appearing on behalf of the Respondent.
Hearing details:
2024
14 October.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] 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].
[7] Cheyne Leanne Nulty v Blue Start Group Pty Ltd[2011] FWAFB 975. See also Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007 at [51].
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