Christina Doreen Nauer v Brisbane Catholic Education

Case •

[2022] FWC 1495

•

14 JUNE 2022
[2022] FWC 1495

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christina Doreen Nauer
v

Brisbane Catholic Education

(U2022/5435)

DEPUTY PRESIDENT MOLTONI

BRISBANE, 14 JUNE 2022

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

  1. Christina Nauer (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Brisbane Catholic Education (Respondent).

  1. The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.

  1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

  1. Section 394(2) of the FW 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.

The determinative conference

  1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a determinative conference or hold a hearing.

  1. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act).

Witnesses

  1. The Applicant gave evidence on her own behalf and the following witnesses also gave evidence on her behalf:

·   Mr Steven Nauer, Applicant’s husband

  1. The following witnesses gave evidence on behalf of the Respondent:

·   Ms Amy Cartlidge

Submissions

  1. The Applicant filed submissions in the Commission on 18 May 2022, 25 May 2022, and 6 June 2022. The Respondent filed submissions in the Commission on 1 June 2022.

When did the dismissal take effect?

  1. It is not in dispute, and I so find, that the dismissal took effect on 9 March 2022.

When was the application made?

  1. It is not in dispute, and I so find, that the application was made on 16 May 2022.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. As I found above, the dismissal took effect on 9 March 2022. The final day of the 21 day period was therefore 30 March 2022 and ended at midnight on that day. As I found above, the application was made on 16 May 2022.

  1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

  1. Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   whether the Applicant first became aware of the dismissal after it had taken effect; and

(c)   any action taken by the Applicant to dispute the dismissal; and

(d)   prejudice to the employer (including prejudice caused by the delay); and

(e)   the merits of the application; and

(f)    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.[2]

  1. I set out my consideration of each matter below.

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 30 March 2022. The delay is the period commencing immediately after that time until 16 May 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  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.[4]

  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.[5]

Submissions

  1. The Applicant submitted that the delay was for the following reasons:

·  She did not read the email with the notice of termination until 2 days after her termination (on 11 March 2022);

·  Her husband was involved a serious car accident 6 days after the termination (on 15 March 2022);

·  She was required to provide high levels of care for her husband during the period that followed; and

·  She was in a distressed mental state and essentially in survival mode dealing with the fall out of the accident and was unable to turn her mind to the making of an application for a remedy from unfair dismissal.

  1. In relation to the reason for the delay, the Respondent submitted that the Applicant:

    ·  Had not provided the Commission medical or other evidence of her own incapacity to make the application;

    ·  Had not sought medical or other support to assist her to deal with the shock of the accident;

    ·  Had the opportunity to engage in watching television and surfing the internet during the period in question; and

    ·  Had completed tasks such as walking the dogs, making enquiries about personal injury claims, workcover and superannuation, meeting with personal injury lawyers, making a number of medical appointments, attending to grocery and medication purchases and leaving the house for short periods during the relevant times.

Evidence

  1. The Applicant’s evidence was that she was required to care for her husband in the first month following the accident as he could only get around with the aid of crutches however from on or around the 15th of April he was able to move around without crutches and attend to making meals for himself and other things, that her mother-in-law assisted with providing meals occasionally and that she was able to attend to making arrangements for medical appointments, appointments and meeting with the Personal Injury lawyers, making enquiries and claims with workcover and superannuation, engaging in discussions via email with the Police regarding the accident and updates on the other driver involved in the accident, purchasing groceries and medications and walking her dogs.

  1. The Respondent made submissions on the Applicant’s evidence but didn’t provide any additional evidence themselves on this issue.

Findings

  1. The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7]

  1. In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” 5

  1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.6

  1. While I understand that the car accident placed a considerable level of distress on the Applicant, the explanations provided do not demonstrate a credible explanation for the entirety of the 47 day delay. Further, the Applicant was able to demonstrate that she was capable of dealing with similar legal and administrative matters during this timeframe and that the Applicant’s health had improved after 1 month. Even if I were to find that the Applicant was incapable of turning her mind to the application during that first month, there was still more than a 21 day period after her husband had become more capable of self-care, in order to make the application. This factor weighs against the grant of an extension of time.

Did the Applicant first become aware of the dismissal after it had taken effect?

  1. The Applicant alleges that she first became aware of the dismissal after it had taken effect.

Submissions

  1. The Applicant submitted that she first became aware of the dismissal on 11 March 2022, some 2 days after the dismissal came into effect on 9 March 2022 because she did not regularly check her work emails while she was stood down.

Evidence

  1. The Applicant’s verbal evidence in conference was that she had contemplated filing an application but had not made any attempts to do this until after the accident.

  1. The Respondent’s evidence was that the termination letter was emailed to the Applicant on the day of termination.

Findings

  1. Having regard to the above, I find that the Applicant first became aware of the dismissal on 11 March 2022, some 2 days after the dismissal came into effect because that was when she first became are of the email. Having been stood down she did not check her emails daily.

  1. In all the circumstances, I am satisfied that the Applicant first became aware of the dismissal 2 days after the dismissal came into effect.

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

  1. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 16 May 2022.

What are the merits of the application?

  1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

  1. In Kornicki v Telstra-Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under 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.” 8

  1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. While most decisions of the Commission in respect of mandatory vaccination against COVID-19 have indicated that such a direction is a lawful and reasonable one for an employer to make, particularly where there is a government mandate in place in the particular industry, I have not had the benefit of the parties’ substantive submissions in respect of this case. Consequently, I find this a neutral factor in this application.

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. 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:

(a)   the reasons or the delay, being the fallout from the Applicant’s husband’s serious car accident on the 15th of March 2022;

(b)   the Applicant becoming aware of the dismissal some 2 days after it took effect;

(c)   the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;

(d)   the absence of any prejudice to the employer;

(e)   the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f)    no issue of fairness arising as between the Applicant and other persons in a similar position.

  1. 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.[8] 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.[9]

  1. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[10]

  1. Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[11]

  1. Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[12]

  1. Even if I were to find that in the Applicant’s husband’s first month of recovery he was relatively immobile and required a high level of care such that impeded the Applicant’s position to lodge an application, the evidence before me, from both the Applicant and her husband, was that on or around the 15th of April the Applicant’s husband had recovered sufficiently such that he was able to move around without crutches and attend to preparing himself a meal and other activities that ultimately required less support from the Applicant and yet it still took a further 31 days from that point before the Applicant lodged the application. Combined with the 3 extra days before the accident occurred, the Applicant still took a total 34 days in which to file the application.

Conclusion

  1. Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

  1. I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed.

DEPUTY PRESIDENT

Appearances:

C Nauer, Applicant
A Cartlidge, Respondent

Hearing details:

2022.
Brisbane (by video):
10 June


[1] Singh v Trimatic Management Services Pty Ltd [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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[10] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

[11] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].

[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].

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