Gemma Sullivan v Australian Taxation Office

[2024] FWC 3048

[2024] FWC 3048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gemma Sullivan
v

Australian Taxation Office

(U2024/11714)

DEPUTY PRESIDENT ROBERTS SYDNEY, 6 NOVEMBER 2024

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances – application dismissed 

1. On 1 October 2024 Ms. Gemma Sullivan (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The respondent to the proceeding was the Commonwealth as represented by the Australian Taxation Office (ATO or Respondent).

1. It was not in issue that the Applicant was a person protected from unfair dismissal under s.382 of the Act.  

1. The Respondent objected to the application on the basis that it had been made outside the 21-day time period prescribed by s.394(2) and maintained that there were no exceptional circumstances to warrant an extension of time under s.394(3). It was common ground that the Applicant’s dismissal took effect on 9 September 2024, that 21-day period expired on 30 September 2024 and that the application was out of time by one day. The Applicant argued that there were exceptional circumstances justifying an extension of time. This decision deals with that issue only. 

Background 

1. The Applicant commenced employment with the Respondent on 11 September 2023 as part of the Respondent’s ‘Evergreen’ employment programme at the level of APS2. The programme required the Applicant to demonstrate satisfactory on-the-job performance in two work rotations of approximately six months duration, whilst also progressing satisfactorily towards a Certificate IV in Business at TAFE. The Applicant was employed for a probationary period. 

1. By early 2024 various performance issues were being raised by the Respondent with the Applicant. Between January and May 2024 conversations had occurred between the parties in which the Respondent raised concerns about the Applicant’s progress at TAFE and her professional behaviour and communication, and the need to notify the Respondent of absences.  

1. In May 2024 the Applicant was placed on a formal performance improvement programme (PIP) and her performance was assessed at regular intervals. A meeting was held in July 2024 to discuss the Applicant’s performance. The Applicant had a support person with her at the meeting. On 13 August 2024, the Applicant was provided with a “Consideration of Termination” letter. The letter said that the Respondent was considering terminating the Applicant’s employment. 

1. The Applicant provided a response to the letter of 13 August 2024. The response did not satisfy the Respondent and the Applicant’s employment was terminated on 9 September 2024. 

Exceptional circumstances 

1. In order to determine whether exceptional circumstances exist to justify an extension of time I am required to take into account the matters listed in s.394(3). I deal with each of those matters, in turn, below. 

Section 394(3)(a) - Reason for the delay 

1. The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[1] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[2]

1. An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant’s favour. The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them.[3]

1. The Applicant’s explanation for the delay was that she had been liaising with her union from 19 September 2024 and was awaiting advice as to how to proceed. The Applicant said that on 27 September 2024 she was told by the union that they would be in contact with her the following week. She said this process ‘impacted how she would be approaching the application.’

1. The status of the discussions between the Applicant and the union was unclear on the evidence. There was no evidence as to what information and instructions the Applicant had provided the union or whether the union was aware of the date of the Applicant’s dismissal and the looming deadline. There was insufficient evidence to conclude, for example, that representative error on the part of the union explained or contributed to the delay in whole or in part. All that can be said is that the Applicant did not receive some form of advice from the union by 27 September 2024 and rather than seek advice from an alternative source or proceed to lodge the application on or before 30 September, she decided to wait until 1 October 2024 to do so. 

1. The Applicant also argued at the hearing that she was unable to obtain access to various attachments that were referred to and sent with the letter of termination that was emailed to her on 9 September 2024. She said that there were disputed facts in the letter of termination and that she was unable to properly consider her position in the absence of access to that material.  

1. The Respondent disputed this assertion. They said the attachments were sent in different formats on multiple occasions after the termination. Copies of emails were provided by the Respondent to support this claim. The Applicant did not dispute receiving the last of these emails on 16 September 2024 in which the Respondent said that if the attachments were not accessible, the Applicant should advise, and they would be posted. The evidence did not establish that a request was made by the Applicant for the documents to be posted after this date.  

1. Further, the attachments in question were either documents that had been previously provided, the Applicant’s own documents or, in the case of attachment C, documents that were at least partially favourable rather than adverse for the Applicant. The alleged failure to provide these documents after the decision to dismiss had been made did not prevent the Applicant from filing an application for unfair dismissal. Even on the Applicant’s version that the attachments were never received with or after the termination letter, I do not think that this would provide a cogent reason for the delay in filing the application.

1. The explanations for the delay do not weigh in favour of the Applicant. 

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect 

1. The Applicant was told by telephone on 9 September 2024 that her employment was being brought to an end with immediate effect on that day. A termination letter with attachments was sent to the Applicant on the same day. I am satisfied that the Applicant was at all times well aware that the last day of her employment was 9 September 2024 and that she did not first become aware of her dismissal after it had taken effect. The Applicant had the benefit of the full 21-day period to file an application. This does not support a conclusion that there are exceptional circumstances. 

Section 394(3)(c) – Any action taken by the person to dispute the dismissal 

1. The Applicant said that her mother contacted the Respondent after she received the termination letter of 9 September 2024 and attempted to argue about the facts referred to in the letter but was told by the Respondent that the decision was final and the matter would have to be lodged with the Commission. There was no evidence that the Applicant advised the Respondent that she would be challenging her dismissal in the Commission or elsewhere. This factor does not weigh in favour of a conclusion that exceptional circumstances exist. 

Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay) 

1. The Applicant said that there would be no prejudice to the Respondent if an extension were granted. The Respondent accepted this to be the case. 

1. Mere absence of prejudice does not establish that there are exceptional circumstances. A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration. 

Section 394(3)(e) - Merits of the application 

1. It is unnecessary and undesirable to embark on a detailed assessment of the merits here.[4] Key facts and the conclusions that might arise from factual findings, are contested. The Applicant argued amongst other things that the PIP was not implemented with adequate support and if it had been, that performance gaps might have been closed, that requests for assistance went unanswered and that the letter of termination contained asserted facts that were not accurate. The Applicant said the Respondent’s reasons for termination were non-existent and the Respondent was looking for any reason to terminate her employment.  

1. It was also argued that the Applicant’s probation period had ended at the time of termination and that the purported reliance on s.29(3)(f) (and s.22(6)) of the Public Service Act 1999 (Cth) as the basis for the termination was invalid. I note that there was documentation saying that the Applicant’s probation period ended on 6 September 2024[5] but that there was also other documentation from the Respondent indicating that the probation period in fact ended on 10 September 2024.[6] It was also accepted that the Applicant commenced on 11 September 2023. The point was not fully argued but I doubt whether it advances the Applicant’s case to any significant degree. I think it more likely that the probation period ended on 10 September after 12 months employment. It is also possible that at a full hearing on the merits, the Respondent may still be able to point to valid reasons for termination[7] and I note that s.29(3)(c) of the Public Service Act 1999 permits termination for unsatisfactory performance of duties.

1. The Respondent relied on the extensive documentation evidencing the Applicant’s performance issues and the Respondent’s efforts to address these issues. They relied on the reasons set out in the termination letter as evidencing valid reasons for termination relating to the Applicant’s performance such as failing to communicate absences, failing to provide leave applications and failing to sufficiently engage in the TAFE course that the Applicant was undertaking. The Respondent said that the Applicant had been well aware that termination of her employment was being considered because of the ‘Consideration of Termination’ letter provided to her in August and that she had been provided with a proper opportunity to respond to the concerns that had been raised. 

1. The Respondent properly conceded that the termination letter included references to incorrect dates on which it was said that the Applicant had failed to attend her TAFE course. However, the Respondent said that whilst this may have caused some initial confusion, the Applicant was ultimately not prejudiced because she was not asked to respond to alleged absences relating to those dates and because the correct dates were ultimately relied on as a basis for the decision. 

1. The case for the Applicant on the merits is faces some real difficulties given the documentary evidence about the performance matters, the processes that were put in place to manage those issues and the numerous opportunities that were provided to the Applicant to respond to the issues that the Respondent had raised with her. However, in the absence of a full hearing on the evidence I am unable to reach a firm view as to the prospects of the application. I regard the merits of the claim as a neutral consideration in the overall assessment. 

Section 394(3)(e) - Fairness as between the person and other persons in a similar position 

1. The parties did not identify any persons in a similar position to the Applicant. This is a neutral factor here. 

Exceptional Circumstances 

1. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[8] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[9]

1. Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made.  

1. The application for an unfair dismissal remedy is dismissed. 

DEPUTY PRESIDENT

Appearances:

Ms Bell, for the Applicant.
Ms Duffy for the Respondent.

Hearing details:

By Video using Microsoft Teams at 10:00am AEDT on Monday 4 November 2024. 

[1] Long v Keolis Downer[2018] FWCFB 4109 at [4].

[2] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].

[3] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd[2018] FWC 2219 at [20].

[4] See Kyvelos v Champion Socks[2000] AIRC 540. See also Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975 at [36] in relation to similar provisions in Part 3-1.

[5] Performance Improvement Plan Exhibit A4 Hearing Book page 80.

[6] Letter of 13 August 2024 Exhibit R1 Hearing Book page 148.

[7] See APS Group (Placements) Pty Ltd v. O’Loughlin [2011] FWAFB 5230 at [51].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

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