Eva Elisabeth Johansson v Edge Early Learning Administration Pty Limited
[2024] FWC 1322
•20 MAY 2024
| [2024] FWC 1322 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Eva Elisabeth Johansson
v
Edge Early Learning Administration Pty Limited
(C2023/6517)
| COMMISSIONER HUNT | BRISBANE, 20 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether application made out of time – application made less than one day out of time – no exceptional circumstances – application dismissed.
On 21 October 2023, Ms Eva Elisabeth Johansson made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Johansson stated that she had been dismissed from her employment with Edge Early Learning Administration Pty Limited (the Respondent) on 29 September 2023 in contravention of the general protections provisions of the Act, or if she had not been dismissed on 29 September 2023, it was at a later date.
Ms Johansson met with representatives of the Respondent on 29 September 2023 where she was informed she was dismissed from her employment. She was issued a termination letter at 9:40am that same day:
“Dear Eva,
Termination of employment
Your probation period with us at Edge Early Learning – Cannon Hill is due to end on 1 February 2024.
We have reviewed your performance during your probationary period and, unfortunately, we have decided not to continue your employment beyond the probationary period. As a result, your employment will end on 29 September 2023.
As discussed in our meeting today, we have had significant concerns about your practices and inappropriate interactions with children. Unfortunately, you haven’t met the expectations of the role and your employment will be terminated within your probation period.
Your employment with Edge Early Learning will finish today, 29 September 2023 In line with your employment conditions, you will receive:
• Your normal pay, up until and including today;
We wish you every success in the future.”
Section 366 of the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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 person to dispute the dismissal; 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.”
If Ms Johansson was dismissed on 29 September 2023, to have made her application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 20 October 2023. Ms Johansson’s application was filed at 12:06am on 21 October 2023. Accordingly, the application would have been made out of time and an extension of time granted to advance her application.
Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened in-person on 18 January 2024. Ms Johansson appeared and gave evidence. Ms Annie Smeaton of Cooper Grace Ward Lawyers was granted leave to appear for the Respondent, instructed by Ms Tammy Holmes of the Respondent.
Evidence of Ms Johansson
Ms Johansson provided evidence by addressing each of the criterion under s.366(2) of the Act.
The Reason for the Delay
Ms Johansson submitted that if she was dismissed on 29 September 2023, her application was made 7 minutes out of time. She explained that the delay was due to the time required to upload all the attachments to her email prior to submitting her application. The attachments were loaded and ultimately, her application was sent at 12:06am (AEST) on 21 October 2023.
Ms Johansson submitted, however, that she was still employed with the Respondent even after 29 September 2023. Ms Johansson advances this submission for the following reasons:
· her Blue Card to work with children remained linked to the Respondent’s organisation until she requested it to be delinked on 16 October 2023. Ms Johansson’s position is that this indicates to her that she was still employed by the Respondent as of 16 October 2023; and
· the dismissal was actively disputed, and there was no evidence to support an immediate termination of her employment. She interpreted this to mean that her employment was not terminated on 29 September 2023; and
· her termination was not actioned until 9 October 2023. Ms Johansson received emails advising that the termination request was approved, and she was asked to complete an administrative checklist which is essentially an exit interview questionnaire.
In the alternative, if it is determined that she was dismissed on 29 September 2023, Ms Johansson stated that the extreme trauma and distress, which spiralled into depression and financial difficulties, caused delay in her taking action. She stated that she was impacted, making it difficult for her to focus on this application.
Ms Johansson moved to Australia in 1989 from Sweden. She obtained citizenship in 2004. She lacks familial support as she is not close to her family in Sweden.
In 2004, Ms Johansson bought a home and has since been paying the mortgage.
She claimed that in around 2011 she was subject to a fraudulent transaction relating to her home loan. She was also subject to workplace bullying. She claimed to have been the subject of stalking, break-ins to her home, hacking and crashing of her devices, and attempted identity theft. She considers that there could be some connection between people who injured her many years ago and people who work for the Respondent.
Since June 2020, Ms Johansson has been involved in a complaint with the Australian Financial Complaint Authority (AFCA) regarding her mortgage. On 31 August 2023, a determination was made which was partly in her favour. The determination was for the bank to reduce her home loan considerably by approximately $100,000, reduce the interest rate and restructure the home loan to a standard mortgage. This could only be done if she was permanently employed, and she needed to decide to accept or decline the loan by 30 September 2023.
With respect to the dismissal, Ms Johansson explained that she has been left without income and has caused her financial difficulties. She considers the actions of the Respondent were a deliberate attempt to provoke distress and trigger a reaction from her.
Ms Johansson explained that she was extremely traumatised and distressed on 28 September 2023 and failed to properly read a serious letter issued to her in-person on that day. The letter detailed allegations of grabbing a child by the wrist on 22 September 2023, and required her to attend a meeting the next day. The letter detailed that she was entitled to bring a support person to the meeting.
Ms Johansson stated that she was distressed, had not properly read the letter and thought the allegation of grabbing a child by the wrist on 22 September 2023 to be vague.
Ms Johansson attended the meeting on 29 September 2023 without a support person, protesting that she had not had an opportunity to arrange a support person to attend. She wrote on the bottom of a document titled, ‘Meeting Notice and Support Person Waiver’ that she had not had enough time to arrange a support person as the letter had been given to her at around 7:00am-8:00am on 28 September 2023.
At the same time as being dismissed, and, according to Ms Johansson, having been bullied at work, she was dealing with the AFCA mortgage issue.
Ms Johansson said she applied for new employment, however due to what happened with the Respondent, it is extremely difficult for her to find employment.
As a result of the financial difficulties of having no employment, she is very close to losing her home. In evidence, Ms Johansson provided a copy of the appointment of a real estate agent for her home to be sold. It is dated 29 September 2023. In oral evidence given during the hearing, Ms Johansson stated that she caught public transport to visit the real estate agent following her dismissal. Ms Johansson said she feels very sad and depressed to lose her home. She considers herself to be an abuse victim and victim of organised crime.
Ms Johansson gave the following evidence as to what else she did on 29 September 2023:
“On 29 September 2023, after the instant dismissal from Edge Early Leaning Cannon Hill, I contacted a local childcare centre, whom I knew was looking for staff.
There was a slim chance that I would be offered a permanent position after what I had been accused of at Edge Earning Learning Cannon Hill.
I was not successful at the interview, of course because they would ask questions regarding my latest employment.
I have no other choice than to be strong.”
Ms Johansson’s evidence demonstrates that she participated in a seven-minute phone call at 8:59pm on 29 September 2023 with the local childcare centre.
On 1 October 2023, she contacted an Elder of the Uniting Church who provided her emotional support and offered counselling.
Between 8 and 17 October 2023, Ms Johansson applied for numerous jobs and registered as a nanny. She participated in several in-person interviews across Brisbane. She sent her CV by email to several prospective employers.
On 16 October 2023, Ms Johansson made an online order for approximately $500 of Isagenix products. She commenced the program on 21 October 2023 with the aim to regain her strength to deal with the excessive stress she was dealing with.
During the hearing, I asked Ms Johansson what she was doing on 20 October 2023, and why she had left it until close to and then after midnight to make her application? Ms Johansson was evasive, at one point suggesting that she was working on the document ‘pretty much the whole day’. She could not assist as to whether it was around 6:00pm or 10:00pm or 11:00pm when she logged on and accessed the Commission’s forms. This is despite, I learned in cross-examination, Ms Johansson intimately knowing of the Commission’s 21-day time limit as she had made an out-of-time unfair dismissal application in Ms Eva Johansson v Avcom Pty Ltd T/A Avcom Staging[2013] FWC 4159, which she unsuccessfully sought leave to appeal in Ms Eva Johansson v Avcom Pty Ltd T/A Avcom Staging[2013] FWCFB 8017.
Following the hearing, pursuant to directions issued by me at the hearing, Ms Johansson provided evidence of her efforts to make the application on 20 October 2023. The document properties demonstrate that she saved a document with the Form F80 fee waiver at 7:29pm and the Form F8 at 8:28pm. The PDF of the completed Form F8 was created at 11:58:58pm on 20 October 2023.
The email making the application to the Commission consists of eight attachments:
Form F8: 891 KB
Form F80: 837 KB
Letter dated 28 September 2023: 440 KBLetter dated 29 September 2023: 400 KB
Probation review form: 1966 KB
Onboarding material: 647 KB
Letter to employer 9 October 2023: 3106 KB
The email sent to the Commission states:
“Please find attached in support of my complaint.
I would like to provide further information.”
Ms Johansson cited internet issues at home and at various public libraries she uses. Ms Johansson provided evidence of complaints she had made to a library employee about connectivity issues she had experienced when at the library on 5 October 2023 and on 12 October 2023. In her email to the library employee on 12 October 2023, she stated, “I am not a criminal, I am not mentally disturbed or otherwise have serious mental health issues. I am a victim of hacking, which I have evidence to provide.” In correspondence to the Commission on 21 December 2023, Ms Johansson declared, “I am not a criminal, I am not mentally disturbed and I do not have mental health issues to an extent where I cannot look after myself.”
Ms Johansson stated that she uses her mobile phone hotspot to allow her home computer to connect to the internet. In oral evidence she stated that her internet cuts out every day. She said there are numerous indicators that she is being hacked as she sees envelopes open and close in front of her; she considers the hacking occurs in front of when she is at the computer.
Ms Johansson stated that from 9 October 2023 she investigated bringing this application.
Actions Taken to Dispute the Dismissal
Ms Johansson received an email from Ms Dowse at 9:40am on 29 September 2023, asking that she sign a Termination Letter. Ms Johansson responded at 12:10pm, claiming that she was unlawfully terminated.
On 6 October 2023, Ms Johansson sent an email inquiring when she would be paid her termination pay.
On 9 October 2023, Ms Johansson sent a five-page, detailed email detailing all of her concerns in relation to her employment and the dismissal. Ms Johansson asserted that adverse action had been taken against her in response to reports she made in August and September 2023.
On 16 October 2023, Ms Johansson sent a strongly worded email to the Respondent asking why her BlueCard had not been delinked. She noted that it was a concern to her, as she stated that she is a victim of character assassination, false allegations, attempted identity theft and hacking. She stated, “I am not a criminal, I am not mentally disturbed or have a serious mental issue.” Further, she requested a separation certificate.
Prejudice to the Employer
It is Ms Johansson’s view that there is no prejudice to the employer caused by the short delay.
Merits of the Application
Ms Johansson noted that the reason for termination was that she allegedly grabbed a child by the wrist on 22 September 2023. Ms Johansson said the incident was not raised to her prior to receiving the letter in the morning of 28 September 2023. She asserts that the CCTV footage shown to her does not support the allegation.
Ms Johansson argued that she was denied procedural fairness to respond to the allegation. There was only one witness statement from Ms Chapman, a newly appointed Assistant Director, whom, Ms Johansson asserted, took a disliking to her from the start.
Ms Johansson asserted that she made several complaints while employed, including about the onboarding process and being asked to sign to say she received documents when she did not. She considers that she was considered to be difficult because of the valid complaints she made.
The Respondent’s Submissions
The Respondent objected to an extension being granted to Ms Johansson to make her application on the basis that there are no exceptional circumstances warranting an extension.
Ms Johansson bears the onus of proof in establishing that exceptional circumstances existed, and the test of exceptional circumstances is a “high hurdle” for an applicant to satisfy.[1] Exceptional circumstances are circumstances that are:
· out of the ordinary course;
· unusual;
· special; or
· uncommon.[2]
It is not necessary for the circumstances to be unprecedented, unique or very rare and they may constitute a single event that was exceptional or a series of events that together are exceptional.[3]
The Respondent helpfully summarised Ms Johansson’s position of the exceptional circumstances, being that Ms Johansson:
· had experienced technological issues when attaching supporting material to the application which resulted in the application being filed on 21 October 2023;
· was emotionally distressed during the 21 day timeframe;
· was attempting to obtain new employment;
· had been taking steps to prevent the repossession of her home; and
· had been taking steps to be as healthy as possible to keep going.
The Respondent submitted that Ms Johansson failed to provide any medical material to substantiate her submissions as to any diagnosis regarding trauma, anxiety or depression. The evidence put forward by Ms Johansson demonstrates that she could engage in formal dealings relating to her dismissal as Ms Johansson had been:
· dealing with the AFCA and her bank regarding her termination and how that might affect her finances;
· communicating with the Respondent by email regarding termination pay on 6 October 2023;
· emailing the Respondent a detailed 5-page email regarding her serious concerns in regard to her employment and termination on 9 October 2023; and
· liaising with Blue Card Services and the Respondent regarding the linking of her Blue Card to the Respondent’s business on 16 October 2023.
Therefore, it is the Respondent’s view that Ms Johansson was capable of submitting her application in time but failed to do so.[4]
Ms Johansson disputed her dismissal by emails at 12:10pm on 29 September 2023 and again at 2:56pm on 9 October 2023.
In each of these correspondences, Ms Johansson sought to deflect her conduct and made various accounts of various alleged incidents at the Respondent’s centre. At no stage did Ms Johansson provide reflective insight into her conduct that led to the dismissal.
The Respondent maintained that notwithstanding that Ms Johansson was dismissed in her probation period, she was afforded procedural fairness. Further, the termination was due to Ms Johansson’s inappropriate and unacceptable workplace behaviour and was not associated at all with any workplace rights or rights Ms Johansson may have exercised.
The Respondent submitted that there is no merit to the application and it would suffer prejudice to its business as a result of the delay because it has sustained costs in engaging and training new staff members and staff having to attend proceedings, together with legal costs.
With respect to the merits of the application, the Respondent asserts that Ms Johansson was observed on 22 September 2023 putting her arm around a child’s neck and hand on his chest, and the other hand on his shoulder and dragging him backwards after the child threw a watering can away. On the same day, Ms Johansson was rude and abrupt to a colleague and questioned the colleague’s skills, ability and qualifications.
During the meeting of 29 September 2023, the Respondent submitted that Ms Johansson became highly agitated and aggressive, yelled and spoke over the top of others and would not let others speak. She was shown the CCTV footage of the 22 September 2023 incident, however refused to accept any wrongdoing.
In all of the circumstances, the Respondent asserted the application is without merit and lacks substance.
Finally, in relation to fairness as between Ms Johansson and others in a like position, the Respondent submitted that this factor is not relevant to the present case as there are no other persons in a similar position to Ms Johansson.
Conclusion
For the reasons set out above, the Respondent submitted that Ms Johansson failed to demonstrate that there are any exceptional circumstances that apply for the purpose of s.394(3) of the Act and the application should be dismissed.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[5] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:
‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
’23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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” in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’
[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.” [footnotes omitted].
For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[7] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[8]
Consideration
I am satisfied that Ms Johansson was dismissed from her employment on 29 September 2023. She was informed of this in person, and it was confirmed in writing that same morning. Ms Johansson was aware of this and has corresponded on various occasions confirming she understands that she was dismissed on this date.
The reason for delay – s.366(2)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[9] The absence of an explanation for any part of the delay will usually weight against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weight in an applicant’s favour, though it is ultimately a question of degree and insight.[10]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[11] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[12]
It is noted that Ms Johansson has been under considerable stress, however she has not provided any medical evidence of any incapacity. In evidence she stated that she prefers to see alternative health providers and not traditional medical professionals. She said that she should not be forced to see a psychologist or psychiatrist if there are alternative health options. Ms Johansson did not have any evidence of being seen by any form of health provider in the period 29 September 2023 – 20 October 2023.
Ms Johansson repeatedly informed the Commission, library employees and the Respondent that she is not mentally disturbed, nor does she have any serious mental issues. She had made several of these statements in the period between being dismissed and bringing the application.
In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435, the Full Bench said this in respect of a decision of Deputy President Sams at first instance:
“[16] We consider that the Deputy President properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame. At best, the letter recited the Appellant’s own assessment of his inability to have lodged the application within time.”
Ms Johansson’s own assessment on one hand that she was stressed which caused her delay in bringing her application, and on the other hand, informing many that she is not mentally disturbed, nor does she have any serious mental issues, is not supported by any relevant medical evidence.
Ms Johansson was very active in the period 29 September 2023 to 20 October 2023. She was not hampered by any debilitating condition, it would appear to me. She was looking for alternative employment, being interviewed, attempting to sell her home, visiting multiple libraries, emailing the Respondent a five-page letter of complaint and ordering products on-line. At this time, she was seeking counsel from a trusted source.
When it came to actually bringing the application, Ms Johansson knew that she did not have a reliable source of internet at home, relying on her mobile phone internet. She left herself around 3.5 hours to download the Commission’s forms, complete them and send them to the Commission.
The Form F8 was not completed and saved as a PDF document until 11:59pm or thereabouts. There were numerous attachments to the email Ms Johansson wished to attach to make the application. Ms Johansson ought to have known that it would take some time to transmit a reasonable sized email, including attachments over her mobile phone internet connection. There is no evidence that Ms Johansson actually pressed send on the email before midnight, or she did so shortly thereafter. Even if the form was completed and the email pre-drafted, Ms Johansson would still needed to have attached eight PDF documents from her computer before sending the email over an unreliable internet connection.
Having regard to the known technological issues experienced by her, and leaving the lodging of her application literally until the last minute, I consider that the delay in bringing the application is entirely of Ms Johansson’s making and her failure to complete the application within time which was within her ability and her capacity with all other matters she was engaged in during the 21-day period.
The reasons for the delay provided are not, in my view, reasons that are supportive of an extension of time being granted.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
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.[13]
On the day of the dismissal, Ms Johansson sent an email asserting she had been unlawfully terminated. On 9 October 2023, Ms Johansson sent the five-page email disputing the dismissal, asserting that adverse action had been taken against her.
I therefore consider that Ms Johansson took action to dispute the dismissal with the Respondent. The action taken by Ms Johansson to contest her termination supports the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
I accept Ms Johansson’s contention that there would be little, if any, prejudice to the Respondent caused by the delay of less than one day. This supports the granting of an extension of time.
The merits of the application – s.366(2)(d)
It is well established that “it will not be appropriate for the Commission 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).”[14]
On Ms Johansson’s evidence, she did not give the letter issued to her on 28 September 2023 enough consideration before she attended the meeting on 29 September 2023. She was invited to bring a support person to the meeting, but because she did not properly read the letter, she elected not to bring a support person to the meeting. I consider there was adequate time for Ms Johansson to find and bring a support person to the meeting, despite her lack of family members residing in Australia. If she had read the letter and required more time, she could have requested as such. She did not.
Ms Johansson also asserted that the allegation was vague; it was not. It is uncontested that she was shown CCTV footage during the meeting of 29 September 2023.
The Respondent’s evidence that Ms Johansson, having been shown the CCTV footage, was dismissive of the accusations of her is uncontested by Ms Johansson. She was dismissed that morning within her probationary period, having been employed for a period of approximately eight weeks.
Not having seen the CCTV footage of the incident, nor heard evidence of the many employees who complained to the Respondent about her conduct, I am unable to say whether Ms Johansson did mishandle the child involved. I do not consider, however, that there is much merit to Ms Johansson’s application where she has argued that adverse action has been taken against her, by dismissing her, because she has a s.340 workplace right protection, nor s.343 coercion, as completed by Ms Johansson in her application.
Ms Johansson requested the Commission order the attendance of 11 former colleagues to give evidence before the Commission and be cross-examined. I considered it inappropriate to order the attendance of those within the Form 51 in respect of Ms Johansson’s application having been made out of time.
I do not consider, on the information before the Commission the merits in Ms Johansson’s application to support the granting of an extension of time.
Fairness as between the person and other persons in a like position – s.366(2)(e)
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[15] where it was said:
“...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
I am not satisfied that the criterion of fairness between Ms Johansson and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by Ms Johansson, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Although Ms Johansson took some action to dispute her dismissal, and I do not consider there would be any prejudice to the Respondent, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, the application must be dismissed.
COMMISSIONER
Appearances:
E Johansson appeared for herself.
A Smeaton of Cooper Grace Ward Lawyers, with permission, with T Holmes for the Respondent.
Hearing details:
2024.
Brisbane.
18 January.
Final written submissions:
2 February 2024.
[1] Mitchell v Mungabereena Aboriginal Corporation [2023] FWC 2033 at [12].
[2] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25].
[3] Ibid; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[4] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645.
[5] [2011] FWAFB 975.
[6] Smith v Canning Division of General Practice [2009] AIRC 959.
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
[9] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[11] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
[12] 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]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36].
[15] [2015] FWC 8885 at [29].
Printed by authority of the Commonwealth Government Printer
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