Hannah Cursley v Worley Services Pty Limited
[2023] FWC 3307
•12 DECEMBER 2023
| [2023] FWC 3307 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hannah Cursley
v
Worley Services Pty Limited
(U2023/10925)
| COMMISSIONER CONNOLLY | MELBOURNE, 12 DECEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application granted
Background
On 8 November 2023, Hannah Cursley (the Applicant) lodged a s.394 Unfair Dismissal application seeking a remedy in relation to the termination of her employment with Worley Services Pty Limited (the Respondent) which is alleged to have occurred on 12 October 2023.
The Fair Work Act 2009 (Cth) (the Act) allows 21 days to lodge this application. The application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission to allow the application to proceed.
Ms Cursley’s application identified her employment ended on the 12 October 2023. The Application was lodged with the Commission on the 8 November 2023, and is therefore 6 days out of time.[1]
On 27 November 2023, the Respondent lodged a Form F3 Employer Response which confirmed the Applicant was dismissed on 12 October 2023 and raised a jurisdictional objection on the basis that the application was lodged out of time. The Respondent also objected on the basis that the Applicant’s dismissal was a case of Genuine Redundancy.[2]
This decision only concerns whether I should exercise my discretion to allow Ms Cursley a further period of time for her unfair dismissal application to proceed against Worley Services Pty Ltd.
On 22 November 2023, I issued directions and advised that the extension of time issue would be considered at a Video Hearing on 4 December 2023. Information about the extension of time issue was provided along with the directions, including the factors that I am required to take into account in considering this matter.
Hearing
A Hearing was conducted by way of Video using Microsoft Teams on 4 December 2023. A video file record of the Hearing was made by the Commission.
The Applicant represented herself in the proceeding and gave sworn evidence in further support of her submissions. The Respondent was represented by Mr Charles Gardiner and Ms Brie Kibbes, Senior People Manager for the Respondent.
A digital court book was compiled from the material that was filed by both parties and was distributed to the parties prior to the Hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
The parties are not in dispute over when the application was made. While there are disputed facts about the circumstances that gave rise to the dismissal and whether or not the dismissal was a case of genuine redundancy as stated by the Respondent, there are no contested facts regarding the jurisdictional issue which is the focus of this decision.
Ms Cursley gave evidence at the Hearing, and her position is summarised as follows:
· The 12 October 2023, was the final day of her employment with the Respondent, following the notification of redundancy.
· Her unfair dismissal application was lodged with the Commission on the 8 November 2023, 6 days outside the required timeframe.
· The reasons for the late lodgement of the application was the sudden illness of her maternal grandmother in the UK, rapid deterioration in her grandmothers health and subsequent death on 21 October 2023.
· The illness and death of her grandmother was sudden and unexpected. These events, compounded by the fact her grandmother resided in the United Kingdom, necessitated the Applicant having to deal with the provision of additional care and support to her grandmother, mother and other family members and subsequent arrangements following her grandmother’s passing.
· In additional to the practical burdens created by these circumstances, the Applicant further submits that they had an additional impact on her physical and mental health to the extent that she was unable to prioritise her unfair dismissal application before 8 November 2023.
· Ms Cursley also submits that the loss of her grandmother was a substantial loss for her as she was responsible for bringing her up for a significant period of her youth and that her mother required additional support during this period.
· As a non-citizen in Australia on a Visa arrangement, Ms Cursley also submitted she was anxious of being able to return to Australia after attending her grandmother’s funeral and sought immigration advice during this period to ensure she would be able to return.
· By the 7 November 2023 her travel and all the family plus funeral arrangements had been addressed allowing her to apply herself to her unfair dismissal application which was lodged the next day, with apologies and a request for exemption in the circumstances.
· In support of her submissions Ms Cursley presented a copy of her grandmothers death certificate; record of the memorial service dated 28 November 2023; a receipt for psychological support services she received during the period and booking receipts for her return flight from Melbourne Airport to London Heathrow.
The Respondent relied on its Form F3 in submissions and did not provide any additional evidence or witnesses. In its submissions the Respondent detailed the extended notice period provided to the Applicant considering her circumstances and the steps taken by the Respondent prior to the dismissal to assist the Applicant in finding alternative work. The Respondent further submitted that over 100 redundancies have occurred at the company to date, with more expected to occur and indicated its surprise at being served with Ms Cursley’s unfair dismissal application.
Applicable Law
Section 394 of the Act relevantly states:
“Time for application
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[3] which stated:
“[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.”
Consideration
I find that the Applicant was dismissed on 12 October 2023.
The unfair dismissal application was made 6 days outside of the 21-day time limit and therefore, can only be pursued if this time limit is extended.
Section 394 of the Act requires the Commission to take into account the matters set out in s.394(3)(a),(c)-(f). Below, I have discussed these factors raised by the provision separately, insofar as they are relevant.
(a) The reason for the delay
The Applicants submissions as the reasons for the delay are clear. On the evening of the 12 October 2023 (the day her employment ended) she was informed of the sudden and unexpected illness and hospitalisation of a grandmother residing in the United Kingdom who had been a significant person in her life.
In addition to the impact this had on the Applicant, it necessitated the Applicant being required to provide and arrange additional support and care for her parents (also in the UK) and other family members. Between the 15-21 October 2023, her grandmother’s condition significantly deteriorated increasing this necessity. On 21 October 2023 her grandmother sadly passed away.
The Applicant also sought her own psychological support and assistance during this period and was required to also seek immigration advice to ensure as a Visa holder she would be able to return to Australia after visiting the UK.
By the 7 November 2023 her travel and all the family and funeral arrangements had been addressed allowing her to apply herself to her unfair dismissal application which was lodged the next day. The application acknowledged it was lodged late and appealed for relief on grounds of exceptional circumstances.
In support of her submissions Ms Cursley presented a copy of her grandmother’s death certificate; record of the memorial service dated 28 November 2023; a receipt for psychological support services she received during the period and booking receipts for her return flight from Melbourne Airport to London Heathrow.[4]
In Pottenger v Department of Caffeine[5], the Deputy President observed that 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,[6] or a reasonable explanation.[7] It is not the case that the applicant “needs to provide” an acceptable, reasonable or for that matter credible explanation.[8]
The absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment.[9] Similarly, a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, although it is a question of degree and insight.[10]
Ms Cursley has provided clear, documented, and compelling reasons for the delay in making her application. She further indicates that as soon as possible after the circumstances confronting her were addressed, she promptly took steps to proceed with and lodge her application. On all the evidence available, I am satisfied this is the case.
It does not necessarily follow that I can accept that the circumstances confronted by Ms Cursley were “out of the ordinary course, unusual or uncommon”. While sad and unfortunate, the passing of family members and loved ones is not necessarily uncommon and is an inevitable consequence of life. Each circumstance of the end of life and its impact and ramifications on those of us left behind will be different and need to be considered on its own merits.
In Ms Cursley case, her grandmother was a significant carer for her in her youth, she resided in the UK, and Ms Cursley’s visa status created some legitimate concern as to her ability to return to Australia that needed to be addressed. I am satisfied that these circumstances faced by Ms Cursley cannot be considered ordinary, common or regular.
I am also satisfied that is not necessarily regular, routine and/or common for employees dealing with the passing of family members to have to travel overseas or navigate immigration law. Consequently, I find that the applicant’s reasons for the delay in making her application weigh in favour of a finding of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[11] In the present case, Ms Cursley was informed of her grandmother’s illness on the evening of the day her employment came to an end.
Her evidence is that from this time, up until 7 November 2023 she was unable to prioritise anything else. She has not presented any evidence that any action was taken before this date to dispute the dismissal and I am satisfied that this is the case.
Given this was a case where the day of termination was known to Applicant in advance and provided with some notice, the Applicant was questioned about what steps may have been taken prior to 12 October 2023 to dispute her dismissal. In response, Ms Cursley indicated she made some initial enquiries of the Commission’s website but could not proceed because the dismissal had not yet taken place. Her failure to act after the dismissal date are addressed in her reasons for the delay.
I consider this finding weighs against there being exceptional circumstances.
(d) Prejudice to the employer (including prejudice caused by the delay)
I cannot identify any specific prejudice that the Respondent would accrue if an extension of time were to be granted and the Respondent has made no substantive submission in this regard.
The absence of prejudice, however, is not itself a factor that would warrant the grant of an extension of time. I therefore consider this to be a neutral factor.
(e)The merits of the application
The nature of this matter first requires consideration on whether the application was made within the period required in s.394(2) and whether an extension of time in which to make the application should be approved. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki[12], the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:[13]
“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.”
The substantive merits of this application have not been fully tested and as identified by the Full Bench in Kyvelos v Champion Socks Pty Ltd[14], the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant an extension of time to an applicant to lodge their application.
The factual context and merits of the present application would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted to the application to proceed. Based on the material filed, I note the submissions of the Respondent that the decision to terminate Ms Cursley’s employment was based solely on the grounds of a legitimate redundancy.
However, in light of the evidence presented, I am not convinced that the application is without merit. Accordingly, I consider this factor to be a neutral factor in determining whether to grant an extension of time.
(f) Fairness as between the person and other persons in a similar position
Neither the Applicant nor the Respondent provided any submissions on this factor. As indicated above, Ms Cursley has provided clear and compelling reasons for her delay in lodging her application. She has further provided uncontested evidence to support these submissions.
There is nothing in the material or submissions before the Commission to suggest that it would be unfair to other persons in the same position as the Applicant to extend the time limit for filing the application.
In Morphett v Pearcedale Egg Farm[15], the Deputy President considered this criterion and said:
“cases of this kind will generally tun on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, this ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to other matters currently before the Commission or matters which had been previously decided by the Commission.”
While the specific circumstances facing the Applicant are inevitably unique to this particular case, I am satisfied the issue of fairness between the Applicant and other persons in a similar position is a relevant consideration in this matter.
In particular, I have found that the Applicant was confronted with an uncommon, and exceptional set of circumstances arising from the sudden illness and subsequent passing of her grandmother, family situation and visa conditions for travel and return from Australia to the UK.
I have been satisfied that the Applicants reasons for this delay in lodging her applicant weigh in favour of granting an extension of time.
Accordingly, I am satisfied that it is likely a person in similar position could have also reasonably sought to make an application immediately after dealing with the circumstances confronting Ms Cursley and that this factor weighs in favour of the granting of an extension of time.
Conclusion
Having considered the material before me, I am satisfied, on balance, that Ms Cursley’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted.
An Order[16] reflecting this decision will be issued.
COMMISSIONER
Appearances:
H Cursley, Applicant.
C Gardiner and B Kibbis for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
December 4.
[1] Court Book (CB) 10
[2] CB 23, 24-25
[3] [2011] FWAFB 975
[4] CB 4-8
[5] [2018] FWC 3403, [31]-[33]
[6] Ibid, [31] citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9]
[7] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64, [16]
[8] Stogiannidis (n 21), 165-6 [40]
[9] Ibid 165 [39]
[10] Ibid
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[12] (1997) 140 IR 1
[13] Ibid 11
[14] AIRC 10 November 2000 at 14; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 [38]
[15] [2015] FWC 8885, [29]
[16] PR769304
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