Darlene Terry v UnitingCare Queensland
[2022] FWC 1214
•17 MAY 2022
| [2022] FWC 1214 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darlene Terry
v
UnitingCare Queensland
(U2022/3318)
| DEPUTY PRESIDENT LAKE | BRISBANE, 17 MAY 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mrs Darlene Terry (‘the Applicant’) lodged an application with the Fair Work Commission (‘the Commission’) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (‘the Act’) in relation to the termination of her employment by UnitingCare Queensland (‘the Respondent’).
The Applicant began her employment on 3 July 2006. It is uncontentious that the Respondent terminated the Applicant’s employment on 24 January 2022 and her application was lodged with the Commission on 18 March 2022.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged her application on 18 March 2022. She accepts that her application was made some 32 days outside of the 21 days required under s.394(2) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
Consideration of whether a further period should be granted
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for her to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.
Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.
The Applicant’s submissions may be summarised as follows:
(a)the Applicant was concerned that filing an unfair dismissal claim would jeopardise her final payout;
(b)the Applicant was yet to be paid her notice period and long service leave;
(c)the Applicant was in communications with the Respondent and was under the belief that she would have contract work with the Respondent once fully vaccinated; and
(d)the Applicant was concerned that the Respondent would not employ her on a contractual basis if she made an unfair dismissal claim.
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:
(a)the Applicant made an unfair dismissal claim once she became aware that there were no vacant roles that she could apply for;
(b)the Applicant’s reason for the delay is due to inactivity or failure to act promptly; and
(c)the notice period not being paid is due to a cyber incident and administrative error.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“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.”
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]
No doubt the termination of employment came as a shock for the Applicant who had been an employee of UnitingCare Queensland for 16 years. As I understand, the Applicant was attempting to minimise conflict and maximise opportunity. She was under the belief that she would be able to provide contract services to the Respondent shortly after the termination and so the Applicant elected to not contest the matter until it became clear that there were to be no contract work offered to her.
During the hearing, the Respondent addressed this matter. There is currently no contract work available with UnitingCare Queensland. The Applicant is able to apply for a vacant position and the application will be considered equitably. With regards to the Applicant’s final payment, the Respondent will make adjustments to ensure the Applicant is paid her long service leave and payment in lieu of notice.
While I accept the Applicant’s concerns, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of her dismissal on 20 December 2021 by way of email from the Respondent. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not contest the dismissal generally with the Respondent.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[8] 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
<PR741730>
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
Printed by authority of the Commonwealth Government Printer
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