Dushanthi Wanninayake v Department of Natural Resources and Mines T/A Department of Natural Resources and Mines (Simtars)

Case •

[2017] FWC 321

•

19 JANUARY 2017

No judgment structure available for this case.
[2017] FWC 321
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.773—Termination of employment

Dushanthi Wanninayake
v
Department of Natural Resources and Mines T/A Department of Natural Resources and Mines (Simtars)
(C2016/4305)

DEPUTY PRESIDENT ASBURY

BRISBANE, 19 JANUARY 2017

Application to deal with an unlawful termination dispute – Extension of time.

BACKGROUND

[1] Ms Dushanthi Wanninayake (the Applicant) applies under s. 773 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (FWC) to deal with an unlawful termination dispute with respect to the termination of her employment by the State of Queensland (through the Department of Natural Resources) (the FWC application). The Applicant contends that the termination of her employment was because she was temporarily absent from work because of an illness or injury of a kind prescribed by the Fair Work Regulations 2009 in contravention of s. 772(1)(a) of the FW Act.

[2] The Applicant’s dismissal took effect on 7 November 2013. The Applicant contested the dismissal by making an application to the Queensland Industrial Relations Commission under the Industrial Relations Act 1999 (the Qld Act) alleging that her dismissal was unfair because it was harsh, unjust and unreasonable and for an invalid reason – temporary absence from work because of an illness (the QIRC application). The QIRC application was dismissed and was subject to a number of unsuccessful appeals by the Applicant.

[3] The Respondent initially objected to the FWC application on the basis of s.725 of the FW Act which prohibits multiple actions. The Respondent subsequently sought that the issue of whether the Applicant should be granted an extension of time in which to make the FWC application should be dealt with first.

[4] The FWC application was made on 29 June 2016. At the date of termination of the Applicant’s employment, s. 774 of the FW Act required that an application under s. 773 be made within 60 days after the employment was terminated or within such further period as allowed by the Commission. The Applicant seeks that the Commission allow a further period in which to make the Application. The further period sought by the Applicant is 904 days beyond 6 January 2014, when the 60 day time period then prescribed in s. 774(1) of the FW Act ended. This decision concerns whether the Applicant should be allowed a further period in which to make her application.

[5] A hearing in relation to the extension of time issue was held on 14 October 2016. That hearing followed a number of related hearings to deal with issues raised by the parties and in particular the Applicant. The Applicant filed a large amount of material. The Applicant also corresponded with the FWC at length. The Applicant was granted a number of adjournments. An application for an order requiring the Respondent to produce documents said by the Applicant to be relevant to the issues in dispute and in particular to the merits of the substantive application, was granted in part.

LEGISLATION

[6] Section 774(2) of the FW Act as at 7 November 2013 relevantly provided:

    (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 employee to dispute the termination; 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.

[7] The approach to considering whether to grant an extension of time in which to make an application under a number of sections of the Act, is that the Commission must be satisfied that there are exceptional circumstances, taking into consideration the relevant factors, such that the discretion to extend time is triggered. The term “exceptional circumstances” is given its ordinary meaning and encompasses circumstances:

  • out of the ordinary course, unusual, special or uncommon, but not necessarily unique, unprecedented or rare; or


  • involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together, are exceptional.


[8] Even when exceptional circumstances are established, the Commission has discretion as to whether the time to make an application should be extended, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.

SUBMISSIONS AND EVIDENCE

The reason for the delay

[9] To understand the reason advanced by the Applicant for the delay in the Applicant making the FWC application, it is necessary to set out some of the history of the Applicant’s dispute with the Respondent. That history was set out in a Witness Statement in the present proceedings made by Ms Monique Butler, the Department’s Acting Manager Workplace Relations. As previously stated, the Applicant was dismissed on 7 November 2013. On 27 November 2013 the Applicant made an application to the Queensland Industrial Relations Commission (QIRC) under s. 74 of the Industrial Relations Act 1999 (the Qld Act) alleging that her dismissal was unfair and seeking reinstatement. The unfair dismissal regime in the Qld Act provides for a dismissal to be found to be unfair if it is harsh, unjust or unreasonable or for an invalid reason, including temporary absence because of illness or injury. The Qld Act does not preclude an unfair dismissal application being advanced on both grounds.

[10] In her written submissions to the QIRC 1 and at the hearing of the QIRC application2, the Applicant asserted that her dismissal was harsh, unjust and unreasonable and that it was for an invalid reason on the basis that she was dismissed because of a temporary absence due to illness. The remedy sought in the QIRC application was reinstatement. In a Decision issued on 16 December 2014, Deputy President Kaufman of the QIRC dismissed the QIRC application finding that the Applicant’s dismissal was not unfair and that the Applicant was not dismissed for an invalid reason.3 The Applicant appealed to a Full Bench of the QIRC and in a decision issued on 14 May 2015, the Full Bench refused leave to appeal and dismissed the appeal.4 In dismissing the Applicant’s appeal, the Full Bench said that the Applicant had failed to identify any relevant considerations that the Deputy President failed to take into account in coming to his conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable or for an invalid reason.5

[11] On 18 June 2015 the Applicant filed an application to appeal the Decision of the Full Bench of the QIRC to the Industrial Court of Queensland and on 1 July 2015 applied for extension of time to appeal. 6 In a Decision delivered on 27 July 2015, the Applicant was refused an extension of time to appeal to the Court. In refusing the application for an extension of time to appeal, the President of the Court, Justice Martin, held that the application was an attempt to appeal against the primary decision made by Deputy President Kaufman, rather than an appeal against the Decision of the Full Bench.7 Justice Martin determined that the Applicant had elected to appeal the Decision of Deputy President Kaufman to a Full Bench of the Commission, and that for the Court to extend time where one appeal route is taken, to allow access to another appeal route, would require substantial grounds which were not made out by the Applicant.8 In refusing an extension of time for the appeal to the Industrial Court of Queensland Justice Martin also held that the notice of appeal did not identify any error of law or issue relating to jurisdiction but consisted of a series of requests for review of various parts of the first instance decision and would have been struck out had it otherwise been filed within time.9

[12] In the present proceedings the reason advanced by the Applicant for the delay in making the FWC application is that she did not know that she could make an unlawful termination application under s. 773 of the FW Act until she received advice from the Fair Work Ombudsman on 22 June 2016. The Applicant states that she made the FWC application a week after receipt of that advice. The Applicant further asserts that had she known about her eligibility to make an application to the FWC at that earlier stage of her QIRC application, she would have withdrawn the QIRC application and made the FWC application at an earlier time within the 60 day period required. The Applicant also asserts that her failure to make the FWC application at an earlier time was because she was advised by the Respondent and her then legal advisors to make the QIRC application. The Applicant also points to the time taken to release Decisions related to her QIRC application as a reason for the delay in making her FWC application.

[13] In a Statutory Declaration sworn on 8 August 2016 10 in support of her FWC application, the Applicant asserted that the Respondent had “referred” her to the QIRC in a letter terminating her employment dated 7 November 2013.11 That letter includes the following statement:

    “If you consider your dismissal to be unfair in terms of the Industrial Relations Act 1999 you may wish to make application for reinstatement. If so, your (sic) must make an application to the Queensland Industrial Relations Commission within 21 days after the dismissal takes effect.” 12

[14] That statement was repeated in an email to the Applicant from the Respondent’s Manager (Employee Relations) dated 13 November 2013 in which a response was provided to a complaint made by the Applicant about the manner in which the letter advising of her dismissal was delivered. 13 The Applicant also asserts that during discussions with the Respondent she stated that she would contact the FWC and was told that she should “appeal to the QIRC because that is the Tribunal for State Government employees but not the FWC.” Further, the Applicant tendered email advice received from the Queensland Ombudsman confirming that the Applicant had been informed by the Respondent that she could take her complaint to the QIRC and that Ombudsman’s view was that the QIRC is the specialist body with specific jurisdiction and expertise to deal with the concerns and decide the issues raised by the Applicant.14 The Applicant states that she also had independent legal advice to the effect that she should make a claim for reinstatement to the QIRC.15 The Applicant also states that when she made her application to the QIRC she did not know that the QIRC did not have jurisdiction to deal with unlawful terminations.16

[15] The Applicant said that after her QIRC application had run its course and she had exhausted all appeal mechanisms, she emailed the office of the Federal Employment Minister in a further attempt to resolve the dispute. 17 According to the Applicant she received a response from the Fair Work Ombudsman on 22 June 2016 advising her that she could make an unlawful termination application to the FWC under s. 773 of the FW Act.

[16] The Applicant made a number of references to the advice from the Fair Work Ombudsman that she maintained was the critical turning point in her realisation that she should have made an unlawful termination application to the FWC. The Applicant tendered a covering email that she received with the correspondence but resisted tendering the attached correspondence from the Fair Work Ombudsman. After being provided with repeated opportunities to tender the correspondence, the Applicant finally did so at the hearing on 14 October 2016, but insisted on redacting the name of the person who has authored the correspondence before tendering it. The Respondent did not object to the redaction and I allowed the correspondence to be tendered on that basis in order to give the Applicant an opportunity to put all material before the Commission that she maintained was relevant to the extension of time. The correspondence from the Fair Work Ombudsman states:

    “Thank you for your email of 10 May 2016 to Senator the Hon Michaelia Cash, Minister for Employment regarding your dismissal from the Queensland public service. As a federal election has recently been announced, the Australian Government has assumed a ‘caretaker role’ and consequently the Fair Work Ombudsman (FWO) is replying to your letter.

    The FWO is the agency responsible for providing education, assistance and advice about the national workplace relations system. From the information you have provided, it appears that your employment with the Queensland public sector was covered by the Queensland industrial relations system, not the national workplace relations system.

    As you are aware, the Queensland Industrial Relations Commission (QIRC) is the workplace relations tribunal with power to carry out a range of functions relating to termination of employment matters for Queensland public sector employees. I understand you have already made an unfair dismissal application with the QIRC. If you have any further questions about termination laws or unfair dismissal appeals processes in your state, please contact the QIRC.

    I can also advise that non-national system employees may be eligible to make an unlawful termination application with the Fair Work Commission under the Commonwealth Fair Work Act 2009, depending on the circumstances of the case. However, an employee must not make both an unlawful termination application and an application under Queensland state laws in respect of the same termination. Further information about unlawful termination is available on the Fair Work Commission’s website at

    If you have not already done so, I encourage you to seek independent legal advice on how to best proceed with your matter. You may also wish to raise your concerns with the incoming Minister when the outcome of the election is known.” 18

[17] The Applicant rejected the proposition put to her in cross-examination, that her reluctance to tender the letter had nothing to do with the identity of the author but rather was because the letter did not assist her case for an extension of time to make the FWC application on the basis that it clearly informed her that she could not make an unlawful termination application and an application under Queensland state laws in respect of the same termination. The Applicant agreed with the proposition put to her under cross-examination that in the QIRC proceedings she had asserted that the Respondent dismissed her for an invalid reason, namely that she was on sick leave between 19 August and 2 September 2013. However, the Applicant maintained that her case in the QIRC was not the same case as the case she is advancing in the FWC application because it is under different law. The Applicant then stated that if she went to another Court she would bring the same case. 19

[18] The Respondent submits that the Applicant was not “directed” by the Respondent or the Queensland Ombudsman to make an application to the QIRC to the exclusion of any other jurisdiction. Further, the Respondent submits that the information given to the Applicant was clearly correct, was not misleading and did not disadvantage the Applicant. The delay of 904 days is said to be of the Applicant’s own making. In this regard, the Respondent submits that the Applicant was able to find out about her ability to make the FWC application in June 2016 and there is no explicable reason advanced as to why she could not have made enquiries with the Employment Minister or the Fair Work Ombudsman at an earlier time.

[19] The Respondent also submits that the Applicant’s claim that had she known about her ability to make an application under s. 773 of the FW Act she would have withdrawn her QIRC application, should not be accepted. Such a statement is disingenuous because the Applicant does not say why or for what reason her knowledge of s. 773 of the FW Act would have caused her to withdraw her QIRC application. The Respondent contends that the Applicant’s submissions make it clear that she maintains her view that she was dismissed because she was temporarily absent due to an illness or injury. This so called “dispute” was rejected by a competent tribunal, namely the QIRC, and by a Full Bench of the QIRC.

[20] The Applicant wants a further opportunity to present the same case and make the same arguments as to why she maintains that her dismissal was for an invalid or unlawful reason as she made to before the QIRC. A clear inference can be drawn that the reason for the delay of 940 days is that the applicant searched for and found another means to attempt to re-run the case she unsuccessfully ran before the QIRC. Accordingly the reason for the delay in making the FWC application is not a consideration that would cause the Commission to be satisfied that there are exceptional circumstances such that the Commission would allow a further period for the FWC application to be made.

Any action taken by the Applicant to dispute the dismissal

[21] The Applicant states that she has made desperate attempts to resolve her dispute with the Respondent as detailed in her application to the FWC, statements in support of that application and written submissions. Further the Applicant contends that as soon as she received correct advice from the Fair Work Ombudsman that she could make the FWC application, she filed that application within a few days, proving her commitment to dispute her dismissal.

[22] The Respondent accepts that the Applicant took action to dispute her dismissal but submits that it was not the type of action that is relevant to determining if exceptional circumstances exist such that the Commission would allow the Applicant a period of 904 days to make her substantive application. The Respondent also submits that the Applicant conducted her case before the QIRC on the basis that she alleged that her dismissal was unfair and that it was for an invalid reason due to her temporary absence from work because of illness or injury. This conduct cannot give rise to the FWC being satisfied that there are exceptional circumstances such that the Applicant should be allowed a further period to make her application.

[23] This is because the Applicant had a full hearing before the QIRC in relation to whether her dismissal was unfair or whether it was for the invalid reason that she now alleges in the FWC application, is an unlawful reason. The clear inference open to the FWC is that the Applicant is seeking to re-run the unsuccessful case that she ran before the QIRC.

Prejudice to the employer including prejudice caused by the delay

[24] The Applicant contends that taking her unresolved dispute before the FWC would not prejudice the Respondent as the FWC is the Tribunal that has jurisdiction to deal with unlawful termination disputes for State Government employees. The Applicant also contends that it is relevant that she did not continue her dispute in higher Courts when her QIRC application failed because it might cause prejudice to the Respondent and contends that if she does not get an opportunity to resolve her dispute before the FWC she may escalate the matter to the higher courts and that this may cause prejudice to the Respondent.

[25] The Applicant submits that time delay would not cause prejudice to the Respondent because the evidence is documentary and consists of records such as sick leave applications, medical certificates and emails. Further the Applicant submits that previous transcripts and witness statements are available so that relevant witnesses for the Respondent can refresh their memories.

[26] The Respondent submits that this is a case where there will be prejudice caused by the delay. The Respondent has already been put to considerable time and expense defending unmeritorious claims by the Applicant which have failed. The unmeritorious claims and the resultant unnecessary expense incurred by the Respondent has to stop. The four witnesses called by the Respondent during the hearing of the Applicant’s QIRC application will once again be required to undertake the process of being prepared for and giving evidence before either the Federal Circuit Court or the Federal Court of Australia. The events that led to the Applicant’s dismissal occurred over three years ago between April and November 2013 and the memories of the witnesses may have begun to fade. Finally, as evidenced by Ms Butler’s witness statement, the four witnesses are no longer employed by the Respondent. For these reasons, actual prejudice to the Respondent is a consideration that would cause the Commission not to be satisfied that a further period of time should be allowed to the Applicant to make her application.

The merits of the application

[27] The Applicant asserts that her FWC application has reasonable prospects of success. In this regard, she asserts that the genuineness of her illness and the validity of her medical certificates can be proven. The Applicant further asserts that she advised of her absence promptly and applied for sick leave soon after returning to work on 19 September 2013 using the Respondent’s normal customs. The Applicant also asserts that it is her fundamental human right to be away from the workplace while she is sick.

[28] In relation to the merits of the FWC application, the Respondent submits that perusal of the Decision of Deputy President Kaufman and the Decision of the Full Bench in respect of the Applicant’s application for leave to appeal clearly demonstrates that the FWC application has no merit. In particular, the argument that the Applicant was dismissed because she was temporarily absent from the workplace due to illness or injury was rejected and it was found that the Applicant was dismissed because she was absent from work and no approval had been given for the Applicant to work from home during the relevant period. For these reasons, the merits of the Applicant’s substantive application is not a consideration that would cause the Commission to be satisfied that there are exceptional circumstances such that the Commission would allow a further period of time for the application to be made.

[29] The Respondent also advances a number of submissions in the alternative, in relation to merit which it is contended mean that the Commission could not be satisfied that exceptional circumstances exist such that the Applicant would be granted a further period in which to make her application. The Respondent points to s. 725 and s. 732 of the Act, which relevantly provide that a person who is dismissed must not make an application of a kind, including an unlawful termination application, if an application or complaint has been made under another law in relation to the dismissal and has not been withdrawn or failed for want of jurisdiction. In the present case it is contended that while FWC application has not been “made” unless and until the Commission allows a further period in which to make the application, if a further period was allowed, s. 725 of the Act would be enlivened and the Respondent would make an application under s. 587(1) of the Act, for the Applicant’s FWC application to be dismissed. Accordingly, there is no utility in the Commission allowing the Applicant a further period of time in which to bring her application.

[30] Further, and in the alternative it is submitted that Chapter 6, Part 6-4 of the Act does not apply to the State of Queensland because of the implied limitation on power with respect to State System employees – the Melbourne Corporation Principle – consistent with a Decision of a Full Bench of the Commission in The Australian Workers’ Union of Employees Queensland v State of Queensland (Department of Communities, Child Safety and Disability Services). 20 It is also submitted that the Applicant’s application could never succeed because the doctrine of issue estoppel would apply. This is because the FWC application raises exactly the same invalid reason as was argued before the QIRC.

Fairness as between the Applicant and other persons in a like position

[31] The Applicant contends that her proven persistence in attempting to resolve her dispute and her strong commitment to get fairness and justice, will also help other persons in a like position to resolve their disputes using her case as an example. The Applicant also asserts that it is unfair and unjust to other persons in a like position if the same error is repeated in the present and future cases due to the mistakes in past decision making.

[32] The Respondent submits that another person in the same position as the Applicant, namely:

  • Dismissed on 7 November 2013;


  • Within 21 days of the date having made an application to the QIRC;


  • Had the application heard and determined by the QIRC;


  • Sought leave of a Full Bench of the QIRC to appeal on the basis of alleged errors of fact and that application dismissed; and


  • Made an application to the FWC asking the Commission to deal with an alleged unlawful termination dispute which was 904 days out of time;


would not be granted the indulgence of a further period of time to make such an application.

CONSIDERATION

[33] In relation to s. 774(2)(a) of the FW Act, I do not accept that there are exceptional circumstances in relation to the reason for the Applicant’s delay in making the FWC application. The Applicant was not advised or directed by the Respondent to make an application to the QIRC to the exclusion of any other application. The Respondent simply pointed out in the termination letter and in subsequent email correspondence to the Applicant that if she disputed the fairness of her dismissal she could make an unfair dismissal application to the QIRC. The Respondent was not required to inform the Applicant of this fact and there was nothing misleading or incorrect about the information provided. If the Applicant obtained legal advice to the effect that she should make an application to the QIRC with respect to her dismissal then that advice was also correct as was the advice from the Queensland Ombudsman.

[34] The Applicant was a State public servant and employed by the State of Queensland through the Department of Natural Resources. The Qld Act provided a remedy for unfair dismissal or dismissal for an invalid reason, which includes dismissal because the employee was temporarily absent due to illness or injury. Under the Qld Act, the Applicant could pursue both grounds. Under the FW Act the Applicant could not have pursued an unfair dismissal claim or general protections application and would have been limited to the narrower unlawful termination application on the basis of the assertion that her dismissal was because she was temporarily absent due to an illness or injury (assuming for the sake of the argument that the Respondent’s jurisdictional objection in relation to the Melbourne Corporation Principle did not succeed).

[35] In my view, if the Applicant was informed at the point of her dismissal that she should make an unfair dismissal application to the QIRC, then she was properly advised of an avenue to seek redress for her dispute that was obvious and appropriate. Had the Applicant wanted an exhaustive assessment of all of the avenues to pursue her dispute, then appropriate advice that she make an unlawful termination application under s. 773 of the FW Act would have been qualified by the caveat that there is a real question as to whether a State public servant can make such an application. I am also of the view that properly advised, the Applicant would have been told that the QIRC was the appropriate forum in which to make her application given the broader basis upon which it could be pursued.

[36] If I am wrong on that point, then the fact that the Applicant was not aware of all of the options to pursue her dispute does not constitute exceptional circumstances. I accept that there may be exceptional circumstances that would justify an extension of time, if there was clear evidence that on the facts as conveyed to the Queensland Ombudsman by the Applicant the Queensland Ombudsman provided incorrect advice. I would also accept that the provision of demonstrably incorrect advice by the Queensland Ombudsman that prevented the Applicant from exercising her only viable option to pursue redress for her situation may constitute exceptional circumstances that would justify a further period in which to make an application being granted.

[37] However, in the present case this is not what occurred. At the point that the Applicant was dismissed, she had an obvious option to pursue a remedy for unfair dismissal in the QIRC that included dismissal that was harsh, unjust and unreasonable or dismissal because she was temporarily absent from the work due to illness, and a less obvious option to pursue the argument that her dismissal was unlawful under the FW Act on the basis that she was dismissed because of a temporary absence due to illness or injury. That the Applicant was not advised of the less obvious option does not constitute error on the part of Queensland Ombudsman such that exceptional circumstances can be found to exist.

[38] Further, an employer communicating a decision to dismiss an employee is under no obligation to inform that employee of options for disputing the dismissal. Where an employer provides such information and the information is incorrect, deceptive or misleading, there may be grounds for finding that there are exceptional circumstances. However, this is not such a case. Here, the Applicant’s former employer provided her with information about the obvious option by which she could dispute her dismissal and the Applicant elected, after taking independent legal advice, to pursue that option. At best, the Applicant was not aware that she had another option to pursue her dispute – albeit a less suitable option than the one she took – and that is not a basis for finding that there were exceptional circumstances such that the discretion to grant a further period in which to make an application would be enlivened.

[39] The Applicant has provided no reasonable explanation as to why, if she had been informed of all options under both the Qld Act and the FW Act she would have opted to make an unlawful termination application or would have withdrawn her QIRC application. In my view, the only apparent reason for the FWC application is that the Applicant does not accept the outcome of the proceedings in the QIRC and seeks to re-run her unsuccessful case in the FWC. That the Applicant did not know that she could make an unlawful termination application to the FWC is not an exceptional circumstance in the absence of any evidence of incorrect or misleading information being provided to the Applicant by a person or entity that had a duty to advise her.

[40] I accept that the Applicant’s dismissal has had a significant effect on her and that she has suffered distress as a result. I accept that the distress suffered by the Applicant has impacted on her health. As the Applicant pointed out, the President of the Industrial Court of Queensland observed – in awarding costs against the Applicant with respect to one of her QIRC applications – that “it is completely obvious that Ms Wanninayake is distraught at what has occurred to her.” 21 Clearly Ms Wannanayake continues to be distraught and this was evident in the present proceedings. However, there is no evidence that she was suffering from any medical condition or psychiatric condition that prevented her from making the FWC application or that her distress prevented her from making the application.

[41] The Applicant was able to make and pursue the QIRC application despite these issues and exceptional circumstances are not established on the basis of the Applicant’s health. I also note that the Applicant was given many opportunities to place relevant evidence in relation to her circumstances after the dismissal before the Commission and failed to do so. This was due to the Applicant expending considerable time and effort focusing on matters that were not relevant to the extension of time argument. Although I have sympathy for her distress, I am not satisfied that the reasons for the delay in making the application are exceptional circumstances and this weighs against the exercise of the discretion to grant an additional period.

[42] With respect to s. 774(2)(b) of the FW Act, I accept that the Applicant has taken action to dispute her dismissal. However, in the circumstances of this case this is not an exceptional circumstance. The Applicant elected to make an application to the QIRC, an appropriate forum in which to pursue the matters about which she is in dispute. The fact that the QIRC application failed, and the Applicant subsequently learned that she could make an application to the FWC alleging unlawful termination, does not constitute exceptional circumstances. In my view, this factor is directed at consideration of whether the employer has been on notice that the dismissal was disputed. An applicant coming from left field to make an application outside the time limit, in circumstances where the employer can demonstrate that it reasonably assumed the dismissal was not disputed, may face greater difficulty in persuading the Commission to exercise discretion to grant an additional period, than an applicant who has disputed the dismissal at all times and has missed the time limit while waiting for a response from the employer.

[43] In the present case, the Applicant has pursued her dispute in the QIRC to the bitter end and has lost on all counts. The Respondent has met the case and assumed that it had concluded when the last appeal right was exhausted. That the Applicant now seeks to re- argue the same dispute in the FWC and if not resolved, the Court, does not give rise to an exceptional circumstance and the Applicant cannot rely on her pursuit of the dispute in the QIRC as a factor relevant to this consideration. At best, this is a neutral consideration and I have weighed it accordingly.

[44] I accept for the purposes of s. 774(c) of the Act that there will be prejudice to the Respondent if the Commission grants a further period for the application to be made. In particular, I accept the Respondent’s submissions that it has already been put to considerable time and expense in defending the application; witnesses will be put to additional inconvenience; the major witnesses have ceased employment with the Respondent; and the time that has elapsed since the relevant events occurred is significant. I do not accept the Applicant’s contention that the matter can be decided on the basis of the Respondent’s records. Clearly there are disputed issues of fact between the parties and a full evidentiary hearing would be required if the matter was allowed to proceed. This is a factor that weighs against the exercise of discretion to grant a further period for the application to be made.

[45] In relation to merits as provided in s. 774(d) of the Act, the determination of the issues in dispute will depend on the version of events accepted at hearing. At best, the Applicant has an arguable case on merit if she can establish that she was dismissed because she was absent from the workplace due to illness or injury. However, whether the Applicant will be able to argue her case on merit is far from clear given the jurisdictional objections which the Respondent will be entitled to make should her application be allowed to proceed. Those objections are also arguable and have apparent substance. If the jurisdictional objections advanced by the Respondent do not succeed, it is also obvious that the Respondent has a defence to the Applicant’s merits case. In the circumstances, merit is a neutral point in weighing whether to exercise the discretion to extend time.

[46] There is no evidence that there is any employee of the Respondent in a like position to that of the Applicant. Contrary to the Applicant’s submissions I do not accept that it is relevant that her case may be used as an example by other employees. There are very many persons who make applications to the FWC outside of the time limits imposed by the FW Act who are ignorant of time limits or their options to make applications and who are not granted a further period in which to make their applications. This is a factor that weighs against the discretion to grant the Applicant a further period in which to make her application.

CONCLUSION

[47] The application made by the Applicant under s. 773 of the FW Act is made 904 days outside the time then allowed in s. 774(1) of the Act. Even if I accept the Applicant’s contention that her dismissal did not take effect until she received the termination letter, the application was made some 900 days outside the required time. After weighing the considerations in s. 774(2) of the Act, I am not satisfied that there are exceptional circumstances that would justify the Commission exercising discretion to grant a further period for the application to be made. The Applicant did not receive misleading or incorrect advice about her options to pursue her dispute. There are no reasons advanced by her for the considerable delay in making her application that constitute exceptional circumstances.

[48] Although the Applicant has disputed her dismissal this is not a factor weighing in favour of the exercise of the discretion to grant a further period for the application to be made. The Respondent has expended considerable time, cost and effort in defending its position in response to the QIRC application at a full hearing and on appeal in circumstances where the same dispute as the Applicant now seeks to advance was dealt with to finality. Witnesses for the Respondent are no longer employed and the period of time that has elapsed since the dismissal of the Applicant will prejudice the Respondent to an extent that is beyond the usual prejudice associated with defending an application. The merits of the case are at best neutral and do not outweigh the other factors. I do not consider that this is an appropriate case for the exercise of discretion to extend the period for making the application and accordingly the applicant in C2016/4305 is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Hearing details:

Brisbane.

21 September 2016 &

14 October 2016.

 1   Exhibit 4 – Applicant’s written submission dated 20 August 2014 in TD/3013/109.

 2   Exhibit 3 – Transcript of proceedings QIRC TD/2013/109 Monday 30 June 2014 at 45.

 3   Wanninayake v Sate of Queensland (Department of Natural Resources and Mines) [2014] QIRC 2015.

 4   Wanninayake v Sate of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084.

 5 Ibid at [46].

 6   I have adopted the chronology of events set out in paragraph [1] of the Decision of Justice Martin President of the Industrial Court of Queensland rather than that set out in the witness statement of Ms Butler – Exhibit 6.

 7   Wanninayake v State of Queensland (Department of Natural Resources and Mines) C/2015/29 at [3].

 8 Ibid at [12].

 9 Ibid at [15].

 10   Exhibit 1 Statutory Declaration of Dushanthi Wannanayake.

 11   Exhibit 1 Annexure “DW-01”.

 12   Ibid.

 13   Ibid Annexure “DW-06”.

 14   Ibid Annexure “DW-07”.

 15   Ibid paragraph 11(e).

 16   Ibid paragraph 12.

 17   Ibid Annexure “DW-28”.

 18   Ibid Annexure “DW-26”.

 19   Transcript PN738-741.

 20   [2014] FWCFB 5546.

 21   Wanninayake v State of Queensland (Department of Natural Resources and Mines) C/2015/47 at [13].

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