Georgina Lee v Association for Christian Senior Homes Outlook Gardens

[2021] FWC 6272

[2021] FWC 6272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Georgina Lee
v
Association For Christian Senior Homes Outlook Gardens
(U2021/9102)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 8 NOVEMBER 2021

Application for an unfair dismissal remedy – Jurisdiction – Extension of Time – Application dismissed.

[1] This is a written version of a decision given in transcript. Ms Lee is a long-standing employee of Association for Christina Senior Homes Outlook Gardens. She first commenced her employment in 2008 and after a break she recommenced in 2012. 1

[2] The date of cessation of employment was stated in the Deed of Settlement signed by Ms Lee and the Employer to be 3 September 2021. 2 The letter of resignation stated the cessation took effect on 7 September 2021.3

[3] It seems to me that 3 September 2021 was the date the employment ceased. In the alternative it was 7 September, the date of cessation of employment specified in the resignation letter. 4 The 21-day time frame in which the application must be lodged as required by s 394 of the Fair Work Act 2009 (Cth) (the Act) was 24 September 2021, or 28 September 2021. Ms Lee lodged her application on 11 October 2021. The application was filed outside the statutory time frame.

[4] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[5] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[6] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 5

[7] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[8] I now consider these matters in the context of the Application.

(a) Reason for the delay

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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, however all of the circumstances must be considered. 6

[10] The Applicant provides two explanations for the delay. Firstly, that she was unaware that the CrimCheck had been returned on 1 September 2021. Secondly, that she was seeking advice from a range of people.

[11] In relation to the CrimCheck explanation, the employer outlined a statement of sequence of events at pages 21-22 of the court book which I largely adopt. 7 The Applicant did not dissent from most of the explanation, however there was dissent regarding the explanation provided by the employer for not advising the Applicant that the CrimCheck had been received on 1 September 2021. However, the explanation for the difficulty the employee faced in disciplinary action related to separate matters. As advised by the employer in paragraph 11 at page 22 of the court book there was a separate disciplinary process “regarding misleading conduct you have demonstrated at different stages of the police check renewal process and the manner in which you recently spoke to Neil Morgan. We will allege that your behaviour constitutes serious misconduct and you will be presented with the allegations and required to attend a meeting”.8

[12] The difficulties the employee had in the disciplinary process related not to the police check not being received, but to the alleged misleading conduct of the Applicant regarding the police check and the manner in which she spoke to Mr Morgan.

[13] I prefer the evidence given by the employer in this case relating to whether or not the police check could have been obtained at an earlier stage.

[14] In relation to the explanation advanced by the Applicant in relation to the delay, the Applicant was aware of the police check being received by 29 September 2021. The lack of knowledge of a police check was no explanation of the delay between 29 September 2021 and when the application was filed out of time on 11 October 2021. The only explanation for that period of delay was that the Applicant was seeking advice. The Applicant was advised as early as 2 September 2021 that she needed to seek advice. The Applicant did seek some advice during that period. I also note there were some complications from the pandemic, nevertheless, it is possible to contact people by phone and other electronic means. I am not satisfied that the need to seek advice was a satisfactory explanation for delay after 29 September 2021. There is no satisfactory explanation for that period of delay.

(b) Whether Applicant first became aware of the dismissal after the date it took effect

[15] It appears to me in any event that this was not a dismissal, but a resignation and a settlement. The Applicant claims that she was under duress, namely she had been stood down, had no money and a range of other issues. However, the Applicant was advised to seek advice before signing the deed, and she signed the deed, and resigned in a letter of resignation.

[16] I am satisfied there was not a termination, rather there was a resignation. Even if I am wrong about that the Applicant became aware of the dismissal after it had taken effect when she wrote the letter of resignation and signed the Deed of Release on 7 September 2021. 9

[17] I am satisfied the Applicant became aware of the dismissal, and it was that, on 7 September 2021.

(c) Any action taken by the Applicant to dispute the dismissal

[18] It appears the Applicant both signed the Deed of Release on 7 September 2021 and then proceeded to dispute the dismissal when she became aware the police check had been received by the employer on 1 September 2021 and she had not been advised of it until 29 September 2021. The Applicant is aggrieved by and disputes that.

(d) Prejudice to the Respondent including prejudice caused by the delay

[19] There is no prejudice to the employer given that the delay is a short one.

(e) The merits of the application

[20] For reasons already given it appears that there are no merits to the Applicant’s case given that there was a resignation rather than a dismissal.

(f) Fairness as between the Applicant and other persons in a similar position

[21] It is agreed that there are no persons in a similar position.

Conclusion

[22] I have considered all the submissions and evidence put to me. I have made findings about each of the matters set out in s 394(3) of the Act and I take them into account. Taking all the matters into account I am not satisfied there are exceptional circumstances, and therefore there is no basis to exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused. The application for an unfair dismissal remedy made by the Applicant is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735516>

 1   See Form F2 Unfair Dismissal Application; Digital Court Book at 3.

 2   See signed Deed of Release (Attachment 1); Digital Court Book at 24 and 46.

 3   See letter of Resignation dated 7 September 2021 signed by Georgina Lee; Digital Court Book at 30.

 4   Ibid.

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

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 7   See digital Court Book at 21-22

 8 Ibid at 22 [11].

 9   See digital Court Book at 30.