Fiona Michelle Dann v Wungening Healing the Spirit Aboriginal Community Controlled Organisation
[2023] FWC 871
•12 APRIL 2023
| [2023] FWC 871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Fiona Michelle Dann
v
Wungening Healing The Spirit - Aboriginal Community Controlled Organisation
(C2022/7788)
| COMMISSIONER SCHNEIDER | PERTH, 12 APRIL 2023 |
Application to deal with contraventions involving dismissal
Mrs Fiona Michelle Dann (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Wungening Aboriginal Corporation (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent objects to the application on the grounds that the application has been made out of the relevant 21-day time period as required under section 366(1) of the Act.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time and, if it was, whether there are exceptional circumstances giving rise to an extension of time.
Relevant law
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon.
The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]
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.[5]
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.[6]
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.[7]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
This decision contemplates the relevant considerations in section 366(2) of the Act in the context of the current application.
Criteria
The dismissal took effect on 28 October 2022. The final day of the 21-day period was therefore 18 November 2022 and ended at midnight on that day.
The application was made on 23 November 2022. The application was made 5 days late.
It is therefore necessary for the Commission, prior to dealing with the dispute further, to determine if there are exceptional circumstances giving rise to an extension of time.
Accordingly, the Commission must consider whether exceptional circumstances exist and, if there are exceptional circumstances, if discretion should be exercised to allow an extension of the 21-day period.
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 18 November 2022.
The delay is the period commencing immediately after that time until 23 November 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant submits that the delay in filing can be attributed to the following:
· The Applicant was attending to sorry business, following the passing of a family member.
· The Applicant was interstate in a remote community for cultural duties.
· The Applicant lodged an unfair dismissal application on 20 November 2022.
· On 22 November 2022, Commission staff informed the Applicant that it appeared she had not fulfilled the minimum employment period required for an unfair dismissal application.
· The Applicant then discontinued her unfair dismissal application and lodged this general protections application on 23 November 2022.
In relation to the reason for the delay, the Respondent submitted the below:
· The Respondent acknowledges that the death of the Applicant’s family member was unfortunate and accepts that a period for reflection and sorrow is culturally expected and understandable. However, the Respondent submits that, this is not exceptional circumstances.
· The Respondent also noted that the Applicant’s family member passed away prior to the termination of her employment.
· The Respondent highlighted that the reasons advanced by the Applicant did not prevent her from being able to file her application within time.
· The Respondent also submits that, despite accepting the Applicant was in a remote community, there is no evidence that the Applicant did not have access to the internet or a means of submissions during this period.
At the hearing on 10 March 2023, the Applicant confirmed the below evidence:
· Her family member passed away on 27 October 2022.
· Her employment with the Respondent was terminated the following day, on 28 October 2022.
· The Applicant was required to travel interstate for the sorry business.
· This period was a stressful time for the Applicant.
· The Applicant was required to provide support for her extended family members as a result of the family member’s passing. This support took priority.
· The Applicant explained that this process, sorry business, was of substantial cultural importance and required significant attention and time.
· The Applicant stated that, during this period, she was away from her home in Perth and had limited access to internet facilities.
On the material before me, I find that the reasons contributing to the delay were understandable and reasonable given the unfortunate passing of the Applicant’s relative shortly before the termination of her employment.
It is sensible to conclude that the reasons advanced would contribute to some delay in filing.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that she took action to dispute the dismissal.
The Applicant submits the following in relation to this consideration:
· The Applicant did not agree with the decision of the Respondent to terminate her employment on 28 October 2022.
· The Applicant lodged an unfair dismissal claim with the Commission, U2022/11108, on 20 November 2022.
· The Applicant, upon learning that as she had not served the minimum employment period required for an Unfair Dismissal application, discontinued her application on 22 November 2022.
· The Applicant then filed this application shortly thereafter.
The Respondent submitted that it accepts that the Applicant was not happy with the decision the Respondent made.
The Respondent also submitted that the Applicant filed the unfair dismissal application outside the required 21-day requirement.
The Respondent highlights that an application such as this is not an alternative to an unfair dismissal claim and that, just because the Applicant did not meet the minimum employment period for an unfair dismissal claim, does not mean that this application has any merit.
At the hearing on 10 March 2023, the Applicant confirmed the below:
· She was aware of the 21-day time limit and believed that she filed her unfair dismissal application within the require time period.
Having regard to the matters I have referred to above, I note the following in relation to this consideration:
· The Applicant disputed her dismissal by filing an Unfair Dismissal Application on 20 November 2022. Although, this application was 2 days outside the 21-day time limit.
What is the prejudice to the employer (including prejudice caused by the delay)?
There is no extensive commentary I wish to add in regard to this consideration.
There is significant discussion below regarding prejudice arising from the jurisdictional issues in the matter.
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.
The Respondent submits that the application is not within the Commission’s jurisdiction as it is not a National System Employer (NSE).
The Respondent asserts that this should weigh against the granting of an extension.
The Respondent, in the F8A Response form filed with the Commission, outlined the below:
· The Respondent is not a NSE as defined in the Act.
· The Respondent is an Aboriginal community-controlled organisation that provides services to the Noongar aboriginal community.
· The Respondent’s activities are funded primarily by government grants, with around 90% of the Respondent’s income coming via grants from government. Income generated by grants is not a trading activity.[10]
·
· The Respondent’s services are free of charge to the community and very little of the Respondent’s activity could be described as trading.
· The Respondent charges a nominal membership fee of $5, however this is not an indication that the Respondent is a constitutional corporation.[11]
· The Respondent is party to an enterprise agreement in the Western Australian Industrial Relations Commission.
· The Western Australian government has not ceded powers for non-national system employer matters to be dealt with by the Fair Work Commission.
While the above point raised by the Respondent in the F8A is not focused on the merit of the matter (the substance of the claim), it is clearly integral to the ability of the application to proceed to a point that the merits of the general protections claim may even be considered.
The Respondent has submitted comprehensive materials regarding the NSE objection.
On the materials before the Commission, it is clear that this jurisdictional objection carries weight and the application would, in all probability, not proceed past the next hurdle.
Having regard to the information submitted above and publicly available financial documents it appears the Respondent is indeed not a constitutional corporation and instead a non-constitutional corporation whose main activity is not trading or financial activities.
It is not appropriate to delve into the merits or claims of the general protections application without a thorough examination of the evidence.
However, as the Respondent is not a NSE, it is clear that the application itself lacks the ability to progress to such a point.
Fairness as between the Applicant and other persons in a similar position
The Respondent raised the issue of fairness as between the Applicant and other persons in a similar position.
The Applicant did not make any submissions in relation to this factor.
The Respondent submitted that there is no evidence of any other person, in circumstances similar to the Applicant's, that has been given an extension of time by the Commission.
The Respondent’s submissions in relation to this point were limited.
The submissions from the Respondent in relation to this point are that, despite the Applicant being in a remote location and attending to sorry business, the circumstances would generally not be considered as exceptional by the Commission in order to grant an extension of time.
Having regard to the matters referred to above, I state:
· The Applicant suffered the loss of a family member and was required to travel interstate on short notice to support her family and attend to sorry business.
· The cultural significance and importance of the sorry business process to the Applicant should not be devalued.
· I am not satisfied that the reasons advanced by the Applicant are a particularly common occurrence in these kinds of matters.
· The death of a family member is something all individuals encounter in their life. However, its significance and effect will vary greatly in the circumstances.
· From the material advanced by the Applicant, it is clear that, during the period of delay, the Applicant was affected and dealing with significant and important cultural duties due to the death.
· The death of a family member, in many circumstances, would reasonably contribute to a delay and, dependent on the circumstances, give rise to exceptional circumstances. I am not satisfied that such a conclusion would be unfair to other applicants before the Commission.
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 regarding each of the matters referred to 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.[12]
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.[13]
I have accepted the Applicant’s submissions and evidence in relation to her grief following the passing of a family member.
I acknowledge that this would have been an upsetting time for the Applicant and that she was under significant burden in carrying out her cultural duties.
Having regard to all of the matters listed at section 366(2) of the Act, I am satisfied that there are exceptional circumstances.
Being satisfied that there are exceptional circumstances, the Commission must consider whether to exercise discretion to allow an extension.
Notwithstanding that I am satisfied that there are exceptional circumstances, I am not satisfied that it is appropriate for me to exercise my discretion and extend the period for the application to be made for the following reasons.
I do not feel it is appropriate for me to exercise my discretion as the application has a likely fatal jurisdictional issue, as a result of the objection, the Commission does not have jurisdiction to hear the matter.
I have decided that to grant the Applicant an extension of time, knowing that the application will fail at the next hurdle and that the application is out of jurisdiction, is not an efficient use of the Commission’s time and not in line with the objects of the Act.
Further, allowing the application to continue would give rise to prejudice against the Respondent as it would be required to expend effort and use further resources to defend against a matter with fatal jurisdictional issues.
I cannot, in good conscience, exercise my discretion and extend the period for the application to be made when considering the above factors.
Conclusion
Not being satisfied that discretion should be issued to grant an extension of time, this application is dismissed and an Order to that effect has been issued. [14]
COMMISSIONER
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, at [13].
[5] [2011] FWAFB 975, at [13].
[6] [2018] FWCFB 901, [39].
[7] [2018] FWCFB 901, [40].
[8] [2018] FWCFB 901, [17].
[9] [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[10] [2008] WASCA 254; 37 WAR 450.
[11] [1986] FCA 357.
[12] [2011] FWAFB 975, [13].
[13] [2011] FWAFB 975, [13].
[14] [PR761051].
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