Christine Macdonald v Australian Spatial Analytics Ltd
[2023] FWC 2329
•14 SEPTEMBER 2023
| [2023] FWC 2329 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christine Macdonald
v
Australian Spatial Analytics Ltd
(C2023/3817)
| COMMISSIONER MIRABELLA | MELBOURNE, 14 SEPTEMBER 2023 |
General protections dismissal dispute – application filed out of time – circumstances not exceptional – application dismissed.
Ms Christine Macdonald (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (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 Australian Spatial Analytics Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The application was not made within the standard 21 days required by the Act.[1] This decision deals with whether additional time should be allowed for the Applicant to make her application.[2] The issue was dealt with at a determinative conference on 14 September 2023 at which the Applicant gave evidence in support of her application.
This published decision reflects the decision I gave orally at the determinative conference on 14 September 2023 with corrections for grammatical, syntactical and any other insignificant errors.
Was the application out of time?
The parties agree, and I so find, that the dismissal took effect on 8 June 2023 and the application was made on 30 June 2023 at 12:20am, some 22 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect.
Extension of time
Additional time can be allowed under s.366(2) of the 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”.[3]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[4]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider and give appropriate weight to each of:
· the reason for the delay,
· 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.
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.
Relevant factors
The reason for the 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.[5]
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.[6] 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.[7]
The Applicant submits that the delay was for the following reasons:
· She encountered technical difficulties in completing the Form F8 application (Form F8) on the Commission’s portal, and
· Her daughter suffered a health episode late in the evening of 29 June 2023.
The Applicant submits she commenced the Form F8 on the Commission’s portal at 11:30am on 29 June 2023 but that the Adobe software crashed that evening, preventing her from submitting her Form F8 and attachments, which were expansive responses to questions in the Form F8. The Applicant submits she was forced to start and submit a new form due to the crash.
The Applicant submits that the combination of her intervening in her daughter’s health episode, which occurred late in the evening of 29 June 2023, and having to restart the Form F8 led to her late submission.
The Applicant provided as evidence a screenshot of an unsubmitted Form F8 on the Commission’s online lodgment portal which had been last saved at 11:30am on 29 June 2023. This unsubmitted form has a different identifying number to the one that was lodged on 30 June 2023.
At the determinative conference, the Applicant gave evidence to the effect that:
· It was a big decision to initiate proceedings and she did so after contacting the Fair Work Ombudsman and JobWatch.
· She had been given advice that the application only needed to be a brief summary and that she could submit more evidence at a later time.
· She had started the Form F8 on 27 June 2023 and that it took a couple of days to finesse her application.
· It took her some time to collate all of the journal notes that she had taken during her employment that were relevant to the application.
· She acknowledged the technical issues were from “[her] end”.
· At 11:45pm when she tried to combine the Form F8 with the attachments, the Form F8 was blank, and she needed to re-start the process.
· After 11:59pm on 29 June 2023, the Applicant needed a moment to get a glass of water and “centre [her]self” and that if she was late submitting the application, it may as well be 10 to 15 minutes late to “do it properly”.
In relation to the reason for the delay, the Respondent submits that the Applicant had not provided the evidence required to convince the Commission of what occurred on the evening of 29 June 2023, so that a finding of exceptional circumstances can be made.
The Applicant had considered the matter of making an application over some weeks and had begun to collate her materials relevant to the matter 2 days before the end of the 21-day period. The Applicant says she experienced technical difficulties on the morning of 29 June 2023 and her evidence is that she resumed the application at 11:45pm that evening. There is no evidence regarding the time between the morning’s attempt to file an application and 11:45pm. The reason given for the delay beyond 11:59pm on 29 June 2023 was to get a glass of water, to “centre [her]self” and that 5 minutes delay was no different to a longer delay.
The Applicant refers to being a sole parent and to carer’s duties regarding her daughter who suffered a health episode. There is no evidence that the Applicant’s carer’s duties changed after her termination or beyond the prescribed 21-day period for making an application. The Applicant’s carer’s duties are an ongoing responsibility she had whilst she was employed by the Respondent and after her termination.
Taking into account all the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay in making the application. The absence of an acceptable reason or explanation for the delay weighs strongly against a conclusion that there were exceptional circumstances.
The action, if any, taken by the Applicant to dispute the dismissal
The Applicant submits that the actions of the Respondent meant she was not afforded the opportunity to dispute the dismissal. She submits she was not able to dispute the termination because she was not afforded due process during the dismissal. The Applicant notes that there was no prior warning or indication that the meeting which led to her termination would concern her employment status.
Although the Applicant sought advice from the Fair Work Ombudsman and JobWatch soon after her termination, she has not provided any evidence that the Respondent was on notice that she was disputing the dismissal. I treat this as a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The Applicant submits that there is no prejudice to the Respondent resulting from the late application and the Respondent agrees there would be no particular prejudice to them resulting from a late application. Accordingly, I treat this as a neutral consideration.
The merits of the application
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Applicant claims, among other things, the Respondent discriminated against her because of her physical disability and parental responsibilities and that there was a lack of due process preventing her from exercising a workplace right. The Respondent wholly denies the allegations and claims the Applicant was dismissed during her probationary period for performance related issues.
Having examined the materials and considered the evidence before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
The Applicant raised the issue of fairness as between the Applicant and other persons in a similar position.
The Applicant submits that the Commission should take into consideration fairness as between the Applicant and the applicants in Toner v State Management Solutions Pty Ltd [2021] FWC 6308 and Zapantis v Coles Supermarkets Australia Pty Ltd [2022] FWC 1818, both matters considering an extension of time involving representative error.
The matters raised by the Applicant are not relevant matters in considering fairness as between other persons in a similar position.
I treat this as a neutral consideration.
Conclusion
Having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. The absence of a reasonable and acceptable explanation of the delay in filing the application weighs strongly against the finding of exceptional circumstances. The other factors are considered neutral. In my view, and on balance taking into account all the matters of s.366(2), the circumstances of this case are not exceptional.
For the above reasons, I have determined not to grant an extension of time under s.366(2). Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
The Applicant on her own behalf.
Mr R. Jolley for the Respondent.
Hearing details:
2023
Melbourne (by video using Microsoft Teams)
14 September.
[1] Fair Work Act 2009 (Cth), s.366(1).
[2] Ibid., s.366(2).
[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[4] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].
[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].
[7] 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].
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