Fatmata Musa v Fresh Fields Management (NSW) Pty Ltd
[2024] FWC 2996
•31 OCTOBER 2024
| [2024] FWC 2996 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fatmata Musa
v
Fresh Fields Management (NSW) Pty Ltd
(U2024/11418)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 31 OCTOBER 2024 |
Unfair dismissal application – application made outside 21 days – representative error by support person
The issue and outcome
On 25 September 2024, Ms Fatmata Musa (the Applicant) made an unfair dismissal application having been dismissed by Fresh Fields Management (NSW) Pty Ltd trading as Hall & Prior Health & Aged Care Group (the Respondent). The Respondent raised a jurisdictional objection to the unfair dismissal application on the basis that it was filed outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act). This decision addresses that jurisdictional objection.
The Commission is required to decide four preliminary matters before considering the merits of an unfair dismissal application.[1] One of those matters is whether the application was made within 21 days after the dismissal took effect.[2] The other three preliminary matters are not presently relevant for the purpose of this decision.
The Applicant states she was notified of her dismissal on 13 June 2024 and that her dismissal took effect on 17 June 2024. The Respondent agrees that the dismissal took effect on 17 June 2024. It follows that the unfair dismissal application was made 79 days outside of the prescribed statutory period, having been due to be lodged on 8 July 2024.
The matters to be determined are as follows: (a) were there exceptional circumstances that warrant granting an extension of time in which to make the unfair dismissal application; and if so, (b) is it fair and equitable for an extension to be granted.
The matter proceeded to hearing. The Applicant was permitted to be legally represented for reasons detailed on transcript.
At the commencement of the hearing and as foreshadowed prior to the hearing, the Applicant’s legal representative had sought to rely on two witness statements that were filed outside of the timeframes set by the directions. Whilst one witness statement was simply a supplementary statement of the Applicant expanding upon her mental health issues and her personal circumstances, the other was a witness statement of Mr Dulith/ S.M.D.A Sangakkara (Mr Sangakkara), who, in the witness statement, purported to be the ‘Employee Support Person’ of the Applicant. Mr Sangakkara’s witness statement stated to the effect that Mr Sangakkara, whilst a non-practicing lawyer, had provided guidance to the Applicant that had ultimately delayed the lodgement of her application and that Mr Sangakkara took full responsibility for the late lodgement. Mr Sangakkara was available to provide evidence. I allowed the late filing of the additional evidence given its probative value and Mr Sangakkara’s availability to give evidence. To ameliorate prejudice toward the Respondent that may have arisen from the late filing of the materials, the hearing was adjourned for a period to enable the Respondent to consider the late filed materials.
Briefly stated, I have found the circumstances relied upon by the Applicant are exceptional and consider it fair and equitable that an extension of time should be granted to the date when the application was made.
My detailed reasons follow.
Background
The Applicant was employed by the Respondent as a Personal Care Assistant for 14 years. According to the Applicant, throughout her tenure she consistently received satisfactory performance reviews.
The Applicant’s responsibilities included providing direct care to residents, assisting with daily activities, and adhering to the Code of Conduct in Aged Care.
The Applicant stated that issues began to arise when the Director of Nursing, Ms Jacquie Bridge, made allegations of misconduct that the Applicant believes were unfounded. The initial allegation was that on 5 March 2024, the Applicant had ignored a request from a resident for a glass of water and on 7 March 2024, when questioned about the incident, the Applicant denied its occurrence and stated she did provide the resident with water.
It was found that the allegations against the Applicant at this time were unsubstantiated. However, the Applicant stated she was required to move to a different work location.
The Applicant claimed that in May 2024 it was alleged that she failed to complete documentation for seven residents over several days in that same month. The Applicant stated that she requested to review the documentation completed by other staff, which could clarify whether she had completed the required records.
It appears that on 10 June 2024, a meeting was held between the Applicant and the Respondent. The Applicant stated that at the meeting Ms Bridge presented evidence that the Applicant had failed to complete documentation for seven arbitrarily selected residents. The Applicant stated that she was not informed of the selection criteria for the residents and was not shown any evidence confirming whether she had completed documentation for other residents. The Applicant said that on that same date she provided the Respondent with a statutory declaration denying the new allegations. She then provided a further statutory declaration on 11 June 2024, in which she explained that she had followed standard procedures to document care for the residents and had completed records for other residents. At hearing and in her supplementary witness statement, the Applicant provided further evidence that the workload assigned on a shift was shared with another Personal Care Assistant, that is, the Applicant and her colleague worked as a team and therefore tasks were split (including, it would seem, documentation for residents).
On 13 June 2024, the Respondent issued a letter to the Applicant containing a Show Cause – Notice of Intention to Terminate Employment (Show Cause Notice). The Applicant was provided with an opportunity to demonstrate why her employment should not be terminated. The Applicant was given until close of business Friday, 14 October 2024, to respond.
Included within the Show Cause Notice was notification that the Applicant was required to attend a meeting at 11:00am, on Monday 17 June 2024, with Ms Bridge and the Senior Human Resources Business Partner to review any response by the Applicant and make a final decision.
On Friday, 14 June 2024, the Applicant provided a response to the Show Cause Notice, refuting the allegations and outlining her adherence to care standards.
On Monday 17 June 2024, the Respondent met with the Applicant and her representative, where her response was discussed. At this meeting, the Applicant was advised that the Respondent, whilst taking into consideration all evidence provided, had made the decision to proceed with the termination of her employment, for the reasons outlined in the Show Cause Notice issued on 13 June 2024.
Later, on Monday, 17 June 2024, the Respondent sent the Applicant an email headed ‘Termination of Employment’ which attached a notice of termination of employment (Notice of Termination).
According to the Respondent, the Applicant acknowledged that her employment was terminated in an email sent at 11:47AM on Monday, 17 June 2024, to Ms Angela Macioszek, Senior Human Resources Business Partner for the Respondent. The email stated:
Dear Angela,
I appreciate the meeting today, where you explained my employment was terminated effective 17 June 2024. On your letter to me this afternoon, may you be able to kindly advise whether there is an internal appeals process available for this decision, or whether this employment termination decision is final.
Sincerely, Fatmata Musa
Ms Angela Macioszek responded to the Applicant by email on that same day stating:
Hi Fatmata,
As mentioned to you this morning in our meeting, we do not have an internal appeals process.
Please find attached letter regarding your termination of employment.
Thank you,
Angela
On 2 July 2024, the Applicant received a letter from the Aged Care Quality and Safety Commission (ACQSC), advising her that information had been received that she had been involved in an incident inconsistent with the Code of Conduct in Aged Care. That incident included the Applicant’s alleged refusal to provide water to a consumer overnight. The Applicant was provided with the opportunity to respond to the letter, with the response due by 12 July 2024.
By letter of 11 July 2024, Mr Sangakkara, described in the letter as an ‘Employee Representative’, wrote on behalf of the Applicant to the ACQSC lodging a complaint against the Respondent following, what the Applicant referred to as, her ‘unfair dismissal’. The Applicant comprehensively set out what she considered to be the facts in the matter and reasons why she considered the investigation into the incident unfair and biased, and her dismissal unjust. The Applicant asked that the ACQSC investigate the Applicant’s complaint.
On 19 July 2024, the Applicant received an email from the ACQSC informing her that the agency would be taking no further action in respect of the alleged breach of the Aged Care Code of Conduct.
By letter of 24 July 2024, Mr Sangakkara, again described in the letter as an ‘Employee Representative’, wrote on behalf of the Applicant to the Australian Health Practitioner Regulation Agency (AHPRA), lodging a complaint against Ms Bridge following Ms Bridge’s ‘unfair decision’, which is latterly referred to in the letter as ‘(in anew, unfair dismissal)’.
By letter of 4 September 2024, AHPRA informed Mr Sangakkara that the concerns raised did not relate to the health, conduct or performance of a registered health practitioner and that the concerns raised related primarily to the procedures adopted by the Respondent.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[3] It is accepted that 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, can be considered exceptional.[4]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[5]
Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour.
The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[7] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[8]
Initially, the Applicant provided several reasons for the delay in making her unfair dismissal application. Those reasons included her being a single parent, her mental health at the relevant time, having received advice from Ms Macioszek that AHPRA was the appropriate regulatory authority to raise issues regarding the health practices of the Respondent, a lack of knowledge regarding the Commission and its timeframes for making applications, and clearing her name with the ACSQSC. Whilst those initial reasons are expanded upon below and considered, those reasons were supplemented by the evidence of Mr Sangakkara, who claimed that he had misguided the Applicant by informing her that it was important to clear her name first (prior to making an unfair dismissal application), otherwise her ability to work as a support person would be compromised. It is Mr Sangakkara’s evidence that I turn to consider first.
The following points can be distilled from Mr Sangakkara’s evidence:
a) whilst a law graduate with a practising certificate, Mr Sangakkara was not a practising lawyer at the time he provided guidance to the Applicant;
b) Mr Sangakkara assists people in the community where possible for no fee and as such his work is purely voluntary work;
c) Mr Sangakkara assisted the Applicant on a pro bono basis because she could not afford a lawyer;
d) Mr Sangakkara advised the Applicant to first address the correspondence of the ACQSC and then guided her to refer the matter to AHPRA, as instructed by the Applicant’s HR Manager (presumedly Ms Macioszek); and
e) Mr Sangakkara considers his guidance caused a delay in the Applicant lodging her application with the 21-day time frame and he takes full responsibility for this.
It is uncontroversial that representative error in circumstances where the Applicant is blameless has been considered to constitute exceptional circumstances under s 366(2) of the Act, subject to the considerations in ss 366(2)(b) to (e) of the Act.[9] Whilst those provisions deal with the late lodgement of an application under the general protections provisions of the Act, the decisions contending with those sections are apposite for current purposes.[10]
In McConnell v A & PM Fornataro,[11] a Full Bench decision that considered an out of time application under s 365 of the Act, it was said by the majority:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[12]
It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[13] For example, where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[14]
The confounding issue in this case is that Mr Sangakkara purports not to be the Applicant’s legal representative or paid agent. In fact, Mr Sangakkara went to great lengths to emphasise that he was not a practising lawyer and had not received financial benefit in his role as support person to the Applicant. And yet, he attributes complete blame to himself for the Applicant’s late filing of her application, stating that, ‘I now realise that my guidance caused a delay in lodging her application within the 21-day frame, and I take full responsibility for this’.[15]
Mr Sangakkara stated that he first advised the Applicant to clear her name with the ACQSC. The Applicant was due to provide a response to the ACQSC on 12 July 2024. On 11 July 2024, Mr Sangakkara corresponded with the ACQSC on the Applicant’s behalf, signing the letter as the ‘Employee Representative’.
Mr Sangakkara then stated he guided the Applicant to refer her matter to AHPRA, noting that the Applicant’s HR Manager had instructed this. Leaving aside whether the HR Manager instructed the Applicant to refer her matter to AHPRA, Mr Sangakkara corresponded with AHPRA on the Applicant’s behalf on 24 July 2025. Mr Sangakkara again signed the letter as ‘Employee Representative’. On 4 September 2024, AHPRA responded to that correspondence noting it did not have authority to deal with the matter.
At the time Mr Sangakkara was assisting the Applicant, he held a practising certificate. Details drawn from the Legal Practice Board of Western Australia website state the following:
Sangakkara Mudiyanselage D A Sangakkara
Certificated
Yes
Certificate Category
Employee of a law practice
Admission Date
07/05/2021
Primary Law Practice
Martin Udall & Associates
The Applicant’s representative informed the Commission that Mr Sangakkara ceased employment with Martin Udall & Associates on 3 July 2024. Whilst Mr Sangakkara purports to have not been practising law when providing assistance or support to the Applicant, I make the following observations.
First, Mr Sangakkara held a current Australian practising certificate when he provided the assistance to the Applicant. Secondly, Mr Sangakkara was not registered as non-practising with the Legal Practice Board of Western Australia at the relevant time. Thirdly, Mr Sangakkara did not provide the Applicant with general legal information, instead he advised her as to the legal recourse she may pursue and then prepared correspondence to two regulatory bodies on her behalf in the capacity of ‘Employee Representative’. In respect of that legal recourse, it was evident from the correspondence prepared by Mr Sangakkara to the ACQSC and AHPRA that both he and the Applicant considered the Applicant had been unfairly dismissed and had sought corrective action from those agencies, including the Applicant’s reinstatement into her former position. Fourthly, included in the Applicant’s materials was a statutory declaration of Yasinta Chimwlala attesting that on 20 March 2024, Ms Macioszek confirmed that the allegations against the Applicant (presumedly the allegations made in March), were unsubstantiated. The witness to that statutory declaration dated 10 July 2024, was Mr Sangakkara and he referred to himself as ‘Legal Practitioner’. Fifthly, it is evident that Mr Sangakkara sought instruction from the Applicant, which enabled him to provide the legal advice that he did.
At this juncture, it is timely to consider the circumstances of the Applicant and the reasons she pressed as explaining the delay in making her application.
At hearing, the Applicant gave evidence to the effect that she was unaware of the statutory timeframe for making an unfair dismissal application. It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[16]
The Applicant stated that she is a single mother of three children, aged 20, 6, and 4, and the stress and anxiety resulting from her dismissal had significantly impacted her ability to think clearly and manage her responsibilities. The Applicant detailed that she had consulted with her general practitioner, received a script for medication to assist and was provided with a Mental Health Care Plan with referral to a psychologist. However, the Applicant noted that the waitlist for the psychologist was two months.
It is uncontroversial that an applicant’s medical condition can be so significant that it affects their mental capacity to prepare and file an application with the Commission. However, much will turn on the evidence adduced to support such proposition. In Underwood v Terra Firma Pty Ltd,[17] the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21-days. The Full Bench affirmed the findings that the medical evidence relied upon ‘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’, and that no exceptional circumstances were established.[18]
In Bates v Joblink Plus Limited,[19] it was said that it is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness but the practical reality is that without proper and specific medical evidence, it is very difficult for the Commission to make informed findings about an applicant’s capacity to make their application within the statutory time limit.[20]
Whilst appreciative that the Applicant’s mental health significantly declined during the period of delay, she was not so incapacitated that she could not provide instruction to Mr Sangakkara.
The Applicant noted that at the time she was dismissed from her employment, Ms Macioszek confirmed that AHPRA was the appropriate body to oversee healthcare practices at the Respondent. However, having considered the evidence provided, I am, on balance, persuaded that Ms Macioszek was providing responsive information to the Applicant and Mr Sangakkara in respect of the regulation of the Respondent’s healthcare practices, not in respect of the recourse the Applicant may take if dissatisfied with her dismissal or disciplinary process.
The Applicant said that the Director of Nursing not only wrongfully dismissed her but at the same time lodged a false complaint against her with the ACQSC. According to the Applicant, this had further compounded her stress and anxiety, adding an additional layer of complexity to an already difficult situation. Insofar as it is relevant, I accept the Respondent’s submission that it was obliged to report the March 2024 incident to the ACQSC Serious Incident Reporting Scheme and that it was not the Director of Nursing personally targeting the Applicant in this respect.
It was, in addition, acknowledged by the Applicant that her primary focus during period of the delay had been on clearing her name with the ACQSC. However, when AHPRA responded to her enquiry, stating that it did not have jurisdiction over the matter, the Applicant said she made the decision to proceed with an application to the Commission to formally challenge her unfair dismissal.
I observe that a response from AHPRA was forthcoming on 4 September 2024 and that the Applicant’s unfair dismissal application was not lodged until 25 September 2024. In respect of an explanation for the period of the delay between the AHPRA response letter and the date of lodgement, the Applicant did not provide evidence that specifically addressed this period of the delay, albeit Mr Sangakkara appears to have taken responsibility for the whole period of the delay.
Having regard to abovementioned matters, I am satisfied that it was reasonable for the Applicant to have relied on the advice of Mr Sangakkara in respect of the recourse to pursue regarding her dismissal. Although Mr Sangakkara submitted he was not a practising lawyer whilst assisting the Applicant, given all the circumstances so described, I consider this a case where representative error has contributed to the period of the delay.
This is not to say, however, that the Applicant is completely blameless or that she was incapacitated to the extent that she was incapable of addressing recourse for her dismissal. The Applicant herself admits to prioritising the clearing of her name with the ACQSC, and as observed, there appears to have been no sense of urgency on the Applicant’s behalf to have lodged her unfair dismissal application after receipt of the AHPRA response letter on 4 September 2024. The Applicant waited some 17 days to make her unfair dismissal application.
On balance, however, I am satisfied that the Applicant has provided plausible reason for the period of the delay up until 4 September 2024. Post that period of the delay I am not similarly persuaded, due to a lack of evidence as to what occurred in that period. Notwithstanding, on the whole Mr Sangakkara’s involvement in providing advice to the Applicant has, in my view, been to the detriment to the Applicant in respect of her pursuing her application in a timely manner and adopting the correct legal recourse in circumstances where she considered her dismissal unfair. It follows that I find that this criterion weighs in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was advised of her dismissal on 13 June 2024 and that it took effect on 17 June 2024. The Applicant therefore had the full 21-day period to lodge her application for an unfair dismissal remedy. It follows that this factor does not weigh toward a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal
The Respondent submitted that it was common ground that the Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. However, the Applicant refers to having referred her matter to AHPRA and to having addressed the ACQSC concerns (and in doing so raised issues with her dismissal). It is evident that the Applicant’s letters to the ACQSC and AHPRA, as prepared by Mr Sangakkara, squarely put in issue the disciplinary process adopted by the Respondent and ultimately the Applicant’s dismissal. Whilst these agencies were clearly not positioned to deal with the issues raised by the Applicant in her correspondence concerning her perceived ‘unfair dismissal’, it cannot be said that the Applicant did not take action to dispute her dismissal, albeit misguided or premised on incorrect legal advice. It follows that this criterion weighs toward a finding of exceptional circumstances.
Prejudice to the employer
The Respondent submitted that the application was made 80 days late and that the Applicant has relied upon a factually incorrect claim that the Director of Nursing had made a false complaint to the ACQSC about her. The Respondent’s submissions in respect of this factor are not entirely on point.
Briefly stated, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.
Merits of the application
In Telstra-Network Technology Group v Kornicki,[21] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[22]
Having considered the written materials and the evidence provided at hearing, it is evident that there is a factual dispute over what was required by the Applicant in respect of documentation about residents on a shift and whether that responsibility was permitted to be shared with a co-worker. In addition, the Applicant appears to argue that she was afforded differential treatment in respect of co-workers who adopted a similar approach to her where the responsibility of documenting in residents’ progress notes / health documents (the iCare system) was shared. The Applicant further contends that she was denied procedural fairness.
It is apparent that much will turn on the evidence in this case. If, however, the Respondent is able to adduce evidence that supports its account, on the face of it there would, at a minimum, appear to have been a valid reason for dismissal. However, evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[23] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
It is not the case that I can conclude that the Applicant’s application is absent merit. It therefore follows that the merits in this case are a neutral factor.
Fairness as between the person and other persons in a similar position
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, where it was said:
[C]ases 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.[24]
Based on the submissions filed, I am not satisfied that the criterion of fairness weighs toward or against a finding of exceptional circumstances.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for part of the period of the delay in making her application, which I have considered weighs toward a finding of exceptional circumstances. Further, the Applicant disputed her dismissal, and her application is not absent merit. The remaining factors I need to consider are neutral albeit one does not weigh toward a finding of exceptional circumstances. Having considered all evidence and submissions, I find there are exceptional circumstances. Further, because of the reasons detailed in this decision, particularly, Mr Sangakkara’s involvement in advising the Applicant, I consider it fair and equitable that an extension of time should be granted to the date the application was lodged.
The Respondent’s jurisdictional objection with respect to the timeframe for lodgement is dismissed.[25] The application will now be programmed in respect of the merits of the matter.
DEPUTY PRESIDENT
Appearances:
Mr G.Arujunan for the Applicant
Mr C Marshall for the Respondent
Hearing details:
Video by MS Teams
16 October 2024
[1] Fair Work Act 2009 (Cth) s 396 (the Act).
[2] s 394(2) of the Act.
[3] (2011) 203 IR 1 5 [13].
[4] Ibid 5 [13].
[5] (2018) 273 IR 156, 165 [38] (emphasis in original).
[6] Ibid 165 [39].
[7] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).
[8] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[9] Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728, [24].
[10] See Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long (n 7).
[11] (2011) 202 IR 59.
[12] Ibid 65 [35].
[13] Rogers (n 10) [17]; Long (n 7).
[14] Rogers (n 10); Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[15] Witness Statement of Mr Dulith Sangakkara dated 15 October 2024.
[16] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11]; Uhlhorn v P and J Mentiplay Investments Pty Ltd[2013] FWC 1353, [21].
[17] [2015] FWCFB 3435.
[18] Ibid [16].
[19] Miss Stacie Bates v Joblink Plus Limited[2024] FWC 884.
[20] Ibid [22].
[21] (1997) 140 IR 1.
[22] Ibid 11.
[23] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[24] [2015] FWC 8885, [29].
[25] PR7806092.
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