Emily Jane Di Pretoro v Christian Schools Tasmania
[2023] FWC 51
•10 JANUARY 2023
| [2023] FWC 51 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Emily Jane Di Pretoro
v
Christian Schools Tasmania
(U2022/11427)
| DEPUTY PRESIDENT BELL | MELBOURNE, 10 JANUARY 2023 |
Application for an unfair dismissal remedy – extension of time application – whether exceptional circumstances – application dismissed
On 1 December 2022, Ms Emily Di Pretoro (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Christian Schools Tasmania (Respondent) on 28 September 2022.
The Respondent is a school in Hobart, Tasmania. Up until the time of her dismissal, the Applicant was a teacher at the school.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission it appears that the Applicant made her unfair dismissal application 43 days outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making of the application.
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a conference or 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 Act).
The Applicant gave evidence on her own behalf and filed a witness statement and various supporting documents. She also called Ms Marion Mundana, who is the Applicant’s sister. The Respondent relied on two documents but did not file any witness statement. One document was an email dated 4 October 2022 and the other 21 October 2022. The Respondent’s purpose of that email was to show that the Applicant had made a complaint to Equal Opportunity Tasmania (which I describe below) and she had an opportunity to have made an unfair dismissal application. As noted below, it was not in contest that the Applicant made a claim to Equal Opportunity Tasmania. I do not consider that the emails otherwise shed light on the matters in dispute beyond the material before me and it is not necessary to consider them further.
There is no substantial dispute as to when the dismissal took effect. In the Respondent’s ‘Form F3 Employer Response’, the Respondent states the dismissal took effect on 28 September 2022. The Applicant also contends in her Form F2 application, and I accept, that the date of dismissal was 28 September 2022.
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.
Under section 394(3) of the 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.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 19 October 2022. The delay is the period commencing immediately after that time until 1 December 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] In the present case, the delay is approximately 43 days.
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.[3]
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.[4]
The Applicant relies on two broad reasons for the delay, namely:
· Time spent dealing with the serious illness of her mother; and
· The Applicant’s own personal health and emotional state.
As to the first of those matters, the Applicant’s mother was admitted for open heart surgery and subsequent post-operative/rehabilitation care between the dates of 16 October 2022 and 30 November 2022. The Applicant also states, and I accept at a level of generality, that the surgery required the Applicant to be extremely busy. I also accept that the surgery itself and the time for recovery was very stressful for the Applicant.
As to the second of the above matters, the Applicant states that she suffers from migraines and cluster headaches, and that due to the stress of her dismissal when combined with the stress of her mother’s health, she has had “some form” of head pain for 6 out of the 8 weeks prior to filing her witness statement (which was dated 15 December 2022). The Applicant states that severe migraines require heavy medication that affected her functional capacity.
The Applicant also tendered a letter from her general practitioner. The letter was dated 21 December 2022 and referred to consultations on 16 September 2022 and 12 December 2022. Without repeating the detail, that letter contains a description given by the Applicant to her practitioner of circumstances and symptoms that the Applicant had been experiencing from September 2022 to 12 December 2022. The letter also states that the Applicant was on medication for her depression and the practitioner planned to prepare a new Mental Health Care Plan for the Applicant and for her to be referred to a psychologist again.
Ms Mundana’s witness statement also described, in greater detail than the general practitioner, her observations and conclusions about the Applicant’s medical condition and migraines. Ms Mundana is not a doctor or practitioner.
The Applicant also states that it has been difficult for her to maintain or sustain momentum, and that she had barely managed to take her case to “Equal Opportunity”.
The reference to “Equal Opportunity” is a reference to a claim lodged by the Applicant with Equal Opportunity Tasmania, the office established under the Anti-Discrimination Act 1998 (Tas).
On 21 October 2022, the Applicant lodged a complaint with Equal Opportunity Tasmania. A copy of the application in that matter was not before me but the Applicant and her sister describe it. Ms Mundana, who says she supported her sister with the discrimination application, states that the Applicant “was advised by an agent working with the Education Union to plead that she was treated differently than at least four male employees” who worked (and, I infer, still work) at the school.
The Applicant states that she was “advised by my now union official to put my case to Equal Opportunity as a matter of discrimination and that I should not lodge both claims at once”. She also states that her discrimination claim was dismissed on 25 November 2022, although she did not receive the report of that dismissal until “a few days later”.
Following the dismissal of her discrimination complaint, the Applicant states that she spoke with a union official who advised to lodge an unfair dismissal application. The Applicant’s witness statement says this was made on 29 November 2022, which is the date of the Applicant’s Form F2 application. However, the records of the Commission show that the application was actually filed by email on Thursday, 1 December 2022. I do not consider the differences material.
I find that the reasons for the delay were primarily due to the Applicant prioritising the commencement and prosecution of her discrimination complaint with Equal Opportunity Tasmania. After receiving advice to the effect that she should not lodge both claims at once, she determined to lodge the discrimination claim first on the basis that it was the strongest claim. To my mind, this is tolerably clear from the chronology of events set out above.
By s.725 of the Act, a person “must not” make an application or complaint of a kind regarding a dismissal in any one of ss.726 to 732 in relation to the dismissal if any of those other sections apply. The statutory scheme means an “employee is faced with an election”[5] in choosing which action to pursue.
Section 729 addresses an “unfair dismissal application”. By s.725, a person cannot make an unfair dismissal application if any one of the other sections in ss.726 – 732 applied. Section 732 is titled “Applications and complaints under other laws”. By s.732(1), the section applies to an “application or complaint under another law” that is “in relation to the dismissal” and the application or complaint has not been withdrawn or failed for want of jurisdiction. An “application or complaint under another law” includes an application or complaint under a law of a State. I am satisfied from the evidence that the complaint lodged by the Applicant to Equal Opportunity Tasmania was an application “in relation to” her dismissal for the purpose of s.732(1).
Until the withdrawal or failure for want of jurisdiction (if that is what occurred) of her application to Equal Opportunity Tasmania, the earliest the Applicant could make her unfair dismissal application was 25 November 2022.
Regardless of the mandatory effect that s.725 had on the Applicant’s ability to pursue an unfair dismissal action while the discrimination action was on foot, it is clear that the Applicant had decided for her discrimination action before Equal Opportunity Tasmania to run its course as the vehicle in which the core relief she was seeking in relation to her dismissal was pursued. This course of action also appears to reflect the discussion she had with a union official that she “should not” lodge both applications at the same time. The discrimination action was chosen.
While I accept that the personal circumstances of the Applicant indicated a difficult period between early-to-mid September 2022 and late November 2022, I am not satisfied they rise to such a level as to explain the delay in commencing an unfair dismissal application. While there may have been particular points in time where the Applicant was materially delayed or impacted due to her health issues or her mother’s health difficulties, those matters do not explain the delay. Despite those stresses and personal challenges, the Applicant was in a position to have commenced her claim with Equal Opportunity Tasmania.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect. Therefore, Ms Di Pretoro had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[6]
There was no evidence before me, and I so find, that the Applicant did not take any substantive actions to dispute their dismissal prior to making her application on around 21 October 2022 to Equal Opportunity Tasmania.
The Applicant contends, and I accept, that her complaint lodged with Equal Opportunity Tasmania was action taken to dispute her dismissal. However, I also note that these matters commenced from around 21 October 2022, which was already after the 21-day period required to file her unfair dismissal application.
What is the prejudice to the employer (including prejudice caused by the delay)?
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[7] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I treat this factor neutrally.
Fairness as between the Applicant and other persons in a similar position
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?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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] Mere ignorance of the statutory time limit is not an exceptional circumstance.[10]
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.[11]
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.[12]
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.[13]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[14]
The delay in the present case is significant – approximately 43 days. The reasons for delay are in large part due to the Applicant’s pursuit of her discrimination claim. The Applicant’s evidence indicates a sustained period of genuine personal hardship. However, I am not satisfied that evidence rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a general level. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances.
The Applicant has taken steps to challenge her dismissal, namely before Equal Opportunity Tasmania. I accept that the Applicant made continual efforts to agitate her claims, which is arguably a matter in her favour. Although as that claim itself was commenced after the 21-day period under s.394 had passed, I do not consider it assists.
I acknowledge that there is no prejudice to the Respondent, a matter which is at least neutral if not in the Applicant’s favour. The merits of the application and the fairness between the Applicant and other persons in a similar position neither add nor detract from my consideration.
While I acknowledge the genuine challenges and difficulties that Ms Di Pretoro has faced since her dismissal, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[15] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
E Di Pretoro on her own behalf
A Gurney, Compliance and Risk Manager, for the Respondent
Hearing details:
2023.
Melbourne (by video link via Microsoft Teams):
January 9.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Cook v Australian Postal Corporation [2018] FCA 81 at [76].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[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] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[11] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[13] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[15] PR749474
Printed by authority of the Commonwealth Government Printer
< PR749470>
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