Cecilia Liao v Canberra Grammar School

[2023] FWC 2382

[2023] FWC 2382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Cecilia Liao
v

Canberra Grammar School

(C2023/4657)

DEPUTY PRESIDENT DEAN CANBERRA, 18 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – application dismissed.

1. Ms Cecilia Liao (the Applicant) has made an application under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her dismissal from Canberra Grammar School (the Respondent).

1. The Applicant says she was dismissed on 12 May 2023. Her application was made on 2 August 2023.

1. The Respondent disputes she was dismissed because she was engaged on a casual basis, and contends in the alternative that 12 May 2023 was the date of her dismissal as it was the date on which the Applicant was advised that she would no longer be offered casual work with the Respondent.

1. Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). I accept that 12 May 2023 is the appropriate dismissal date for the purposes of determining whether the application was made within the prescribed time period. As a result, the application is 61 days late and so can only proceed if the Commission allows further time for the Applicant.

1. The application was listed for hearing on 15 September 2023 to consider whether to extend time. The Applicant appeared and gave evidence on her own behalf. The Respondent was represented with permission by Mr T Seymour and called evidence from Mr K Peters.

1. The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

2. Section 366 of the Act provides:

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.

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

“[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.”

1. The onus of establishing exceptional circumstances lies with the Applicant.

1. I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

1. The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

1. On the evidence before me, I am not satisfied that the Applicant has provided satisfactory explanation for her failure to file her application within the statutory time period.

1. The Applicant’s reasons for the delay included that she wanted to pursue a bullying complaint but was advised by Registry staff that she would not be able to do so because she was no longer employed by the Respondent. She said this was the only application she was able to make. She further said she was unaware of the 21 day time limit. The Applicant also gave evidence that the Respondent had not followed its own procedures in dealing with her complaints and its policies about bullying. Finally, the Applicant submitted she could not make her application before 2 August 2023 because she was waiting to hear back from Mr Peters.

1. The Respondent submitted, which I accept, that the reason for the delay provided by the Applicant was not exceptional.

1. The absence of an acceptable explanation weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

1. The Applicant sent around 40 emails to the Respondent about a range of matters primarily about workplace bullying but also including its refusal to provide further work to her.

1. The Respondent said it attempted to arrange a meeting with the Applicant but she declined the invitation.

1. While not all of the emails related to the cessation of her casual work, I am satisfied that this weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

1. The Respondent submitted that the extensive delay in filing the application caused it prejudice in having to divert time and resources to opposing the application.

1. I am not satisfied that the evidence shows any prejudice to the employer if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

The merits of the application

1. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]

1. The Applicant spoke extensively about workplace bullying. She submitted her claim had merit.

1. The Respondent pointed to the fact that the Applicant was a casual relief teacher who was engaged to provide services on an ad hoc basis from time to time. It referenced the terms of her employment contract which confirmed that her employment ended at the end of every engagement. The Respondent also submitted that she breached the terms of her employment contract by showing the Chinese language students 57 seconds of a video of former Prime Minister Paul Keating talking about ‘the China threat’. The Respondent contended this was a good reason not to engage the Applicant for further relief teaching engagements.

1. A determination of the merits in this case will turn on facts which are contested. On the evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

1. Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]

1. The Applicant contended she was discriminated against because she was a casual employee, and the terms of her employment contract were unfair.

1. The Respondent submitted that other persons in a similar position who sent a similarly large number of emails post dismissal would not have waited until each one was responded to before commencing proceedings.

1. Overall, I consider this to be a neutral consideration.

Conclusion

1. I acknowledge that the Applicant feels aggrieved and wronged, and that her complaint about workplace bullying was not handled appropriately. I have given careful consideration to all of the submissions made by the Applicant. However, I can only extend time for this application to proceed if she is able to satisfy me that the circumstances are exceptional.

1. Having considered all the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

1. An order giving effect to this decision is issued separately.

DEPUTY PRESIDENT

Appearances:

C Liao on her own behalf.
T Seymour for Canberra Grammar School.

Hearing details:

2023.
By video:
September 15.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[5] [2015] FWC 8885.

[6] Ibid at [29].

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