Emine Kartal v GrainCorp Operations Limited t/as Graincorp Oilseeds

[2020] FWC 6550

[2020] FWC 6550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Emine Kartal
v
GrainCorp Operations Limited t/as Graincorp Oilseeds
(U2020/14956)

COMMISSIONER MCKINNON MELBOURNE, 4 DECEMBER 2020

Application for an unfair dismissal remedy – extension of time not allowed.

[1] Emine Kartal worked for GrainCorp Operations Ltd trading as Graincorp Oilseeds until she resigned from her employment on 13 December 2017 after a request to extend her maternity leave was refused. Her last day of employment was 10 January 2018.

[2] On 18 November 2020, Ms Kartal applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] Ms Kartal’s application is almost three years late and certainly outside the statutory 21 day timeframe. The question is whether an extension of time should be granted. For the reasons that follow, I have decided not to grant an extension of time to Ms Kartal to file her application. In those circumstances, it is not necessary to determine the separate question of whether Ms Kartal resigned or was dismissed.

Extension of time

[4] Section 394(3) of the Fair Work Act 2009 (Cth) (Act) sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  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.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. The circumstances “need not be unique, or unprecedented, or very rare”.  2

Relevant factors

[6] Reason for delay: Ms Kartal submits that she was forced to quit or bullied out of her job and penalised for having too many children when Graincorp refused to extend her maternity leave for an extra year despite her genuine and reasonable request to that effect. In the period from July to September 2020, she unsuccessfully applied for positions in the business for which she holds suitable qualifications. Her last application for employment with Graincorp was made on 30 September 2020.

[7] At the time Ms Kartal’s employment came to an end, she was experiencing difficult personal circumstances, was not getting any sleep and was having family problems. These difficulties were compounded by a serious medical condition that required her to seek medical treatment in or around March 2018. The medical condition has stabilised with treatment although it is not apparent when this occurred. Ms Kartal has also had difficulties in relation to a car accident involving her mother two years earlier.

[8] Ms Kartal says she was not aware of her rights in relation to unfair dismissal and was not in the right frame of mind to make inquiries at the time her employment came to an end. It only occurred to her this year that she was being disadvantaged by Graincorp after she applied for jobs and was not given an interview. Ms Kartal first started to look into her rights after she realised the company was not going to give her the opportunity of re-employment in approximately November 2020, just before her application was lodged.

[9] The medical condition affecting Ms Kartal is an exceptional circumstance, but none of the other reasons given by Ms Kartal are in the same category. There is no adequate explanation for why Ms Kartal did not take any steps to protect her position for almost three years after her employment came to an end. Taken together, the reasons for delay do not weigh in favour of a grant of additional time.

[10] Whether the person first became aware of the dismissal after it had taken effect: There is no basis for concluding that Ms Kartal became aware of the dismissal after it had taken effect. This matter is not a relevant consideration.

[11] Any action taken by the person to dispute the dismissal: Ms Kartal did not seek to challenge the fact that her employment had come to an end until almost three years after the event by lodging this application. Earlier this year, Graincorp advertised a role that was similar to her previous position and Ms Kartal sent the General Manager an email asking if she could apply for the role and if flexible working from home arrangements could be accommodated. She received no response. The explanation does not deal adequately with why no active steps to dispute the cessation of employment were taken until more than two years after the fact. A failure to take reasonable steps to protect her position weighs against the grant of additional time.

[12] Prejudice to the employer (including prejudice caused by the delay): There will be relevant prejudice to Graincorp if the application proceeds because the period of time that has lapsed is significant. Two relevant witnesses, Troy Knox and Jitendra Patel, are no longer employed by Graincorp. Their evidence will be important to the question of whether Ms Kartal resigned or was constructively dismissed. Witnesses that remain in employment are likely to be affected by the reality that memories fade over time. This weighs against a grant of additional time.

[13] Merits of the application: The materials suggest that Ms Kartal resigned from her employment and that the decision was not made in the heat of the moment. Her reasons for resigning were family responsibilities and lack of quality/costly childcare. I have no reason at this stage to doubt that it was a choice Ms Kartal felt she had to make because of what she was dealing with at home and because Graincorp had not agreed to an extension of her maternity leave. However, Graincorp was not obliged to agree to the extension and its reasons for refusal were, at least on a prima facie basis, likely to constitute reasonable business grounds. While no doubt a difficult choice, it was Ms Kartal’s choice to make. The decision was communicated to Graincorp in clear terms. Communications with Ms Kartal in the month leading up to her resignation suggest that Graincorp was supportive of her return to work. On balance, the merits weigh against an extension of time.

[14] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case. It is a neutral consideration.

Conclusion

[15] For the reasons above, I accept that Ms Kartal’s medical condition constitutes an exceptional circumstance but it is only one of a number of reasons for the delay in bringing the application and I am not satisfied about the extent to which it was an operative factor in the delay. On a fair assessment of the evidence, Ms Kartal’s concerns about how she has been treated by Graincorp arise from her efforts to gain re-employment, which has cast a retrospective shadow in her mind over the way her employment came to an end. In the circumstances, and because none of the criteria above weigh in favour of a grant of additional time, I have decided not to allow a further period of time for the application to be made.

[16] The application is dismissed.

COMMISSIONER

Appearances:

E Kartal on her own behalf.
J Li for the Respondent.

Hearing details:

2020.
Melbourne:
December 4.

Printed by authority of the Commonwealth Government Printer

<PR725180>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].