Hannah Hickey v Starlight Children's Foundation

[2020] FWC 6513

[2020] FWC 6513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hannah Hickey
v
Starlight Children’s Foundation
(U2020/13766)

DEPUTY PRESIDENT DEAN SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy – extension of time – no extension granted.

[1] This decision concerns an application by Ms Hannah Hickey (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant was employed by Starlight Children’s Foundation (the Respondent) from 1 October 2019 on a casual basis in the role of Captain Starlight. The role involved performing for seriously ill children at John Hunter Children’s Hospital in Newcastle as part of a program known as the Captain Starlight program.

[3] The Applicant claims that she had been unfairly dismissed by the Respondent, effective 19 September 2020. The Respondent disputes the effective date claimed by the Applicant and contends that it was 11 May 2020, the date after she worked her last shift for the Respondent. In the alternative, the Respondent says that the effective date was when the Applicant was told that she would not be given any shifts for the remainder of 2020 on 24 July 2020.

[4] The controversy as to the effective date raises the issue as to whether the application has been brought within the statutory timeframe. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3).

[5] The Applicant’s unfair dismissal application was lodged on 17 October 2020.Whether the applicant’s employment ended on 19 September as she claims, or on one of the other two dates proffered by the Respondent, the application was made outside the 21 day time limit prescribed by the Act. I, therefore, must in any event decide whether to grant a further period for the application to be made under s 394(3).

[6] The matter was listed for hearing by telephone on 4 December 2020. Ms Hickey appeared on her own behalf and Ms S Moten of Lander & Rogers appeared with permission for the Respondent. The Applicant gave evidence, and in support of her application provided statements from Ms Gabrielle Rawsthorne, a former employee of the Respondent, and Ms Alison Laytham, the Applicant’s mother. Ms Rawsthorne and Ms Laytham were not required for cross examination. The Respondent called evidence from Ms Alicia Johnston, Project Manager of the Respondent.

When did the dismissal take effect?

[7] On the material before me, I am satisfied and find that the dismissal took effect on 18 September 2020. The evidence shows that on 18 September the Applicant was informed that she was no longer ‘on the Respondent’s books’ and discussions were made regarding the return of the Respondent’s costumes. This was followed by the Applicant requesting a reference be provided the next day. These actions ended the Applicant’s employment.

[8] Accordingly, the application was made eight days outside the prescribed period. I now turn to consider whether an extension of time should be granted.

Extension of time

[9] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 1 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.2

[10] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[11] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[12] 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. I now consider these matters in the context of this application.

Reason for the delay

[13] 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. 3

[14] The Applicant put forward a number of matters as explanation for the delay in lodging the application.

[15] First, the Applicant submitted that the delay was caused by the lack of clear correspondence and having received “constantly changing, undefined reasoning for her dismissal”. In this regard, the Applicant gave evidence that she was incorrectly led to believe that her dismissal was fair, in that it was the result of the ongoing pandemic. She believed that all casual employees who had been stood down since May were dismissed and it was not until 2 October that she found out from a former colleague that this was not the case. The Applicant said that she was ‘confused, saddened and deeply hurt’ after learning that other casual employees engaged after her were given shifts that she could be doing, and that one had been moved to a part time role.

[16] The second reason proffered was the alleged intimidation and prejudice she faced when attempting to question the basis for the termination of her employment.

[17] Third, the Applicant asserts that the Respondent attempted to hide the unfairness of their actions which had the effect of delaying her application.

[18] Fourth, the Applicant submitted that she was overwhelmed by distress due to the dismissal and the terminal illness suffered by her grandfather whom she is very close to.

[19] The Applicant sought to rely on a letter from Ms Belinda Muldoon, a Clinical Social Worker in support of her application for an extension of time.

[20] The Respondent submitted that the Applicant has not provided an adequate or complete explanation to cover the entire period of the delay. The Applicant knew, at least as at 18 September 2020, that her employment with the Respondent had ended and the reasons for the termination. She could have filed the application within time but failed to do so. The Applicant’s ignorance of the timeframe does not constitute and exceptional circumstance warranting an extension of time.

[21] The Respondent denied engaging in any act of intimidation and prejudice towards the Applicant. Ms Johnston’s evidence was that she initiated the follow-up calls with the Applicant after 18 September so as to arrange the return of costumes and to provide the Applicant with support.

[22] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay.

[23] It is not uncommon for employees to be distressed and shocked when their employment is terminated. This does not generally provide an acceptable explanation for making an unfair dismissal application outside the 21 day statutory timeframe.

[24] The Applicant had not provided any medical evidence that she was significantly impacted in her ability to lodge her application. In any event, she was able to engage in discussion and correspondence with the Respondent about the termination of her employment, which does not support a finding that she was medically unable to make her application within time.

[25] Her post termination discussions with Ms Johnston and her requests for further details as to the reasons why certain casuals (and not the Applicant) were retained in employment did not prevent her from pursuing an unfair dismissal application at the same time.

[26] There is nothing in the evidence that supports a finding that the Respondent took any action to attempt to delay the Applicant in making this application. The evidence shows that the Respondent offered to have discussions with the Applicant and the delay in the discussion taking place was a result of the Applicant’s timing, not the Respondents.

[27] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[28] As noted above the Applicant was aware by 18 September 2020 that her employment with the Respondent had come to an end, I am therefore satisfied that the Applicant had the full 21 day period to lodge her unfair dismissal application. I consider this factor to weigh against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[29] The Applicant did not take any action to dispute her dismissal until the present application was lodged. A request for further information as to the basis for her dismissal, or information as to why certain other casual staff were retained by the Respondent, are not actions taken to dispute the dismissal.

[30] This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[31] While the Respondent made submissions that it would be prejudiced if an extension were granted, I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[32] The Act requires me to take into account the merits of the application in considering whether to extend time.

[33] There is no dispute that the Respondent is a non-profit organisation and relies heavily on donations for its operations. It is not controversial that the impact of the COVID-19 pandemic on the organisation has been significant, not least of which has been caused by the continued restrictions on access to hospitals. The number of Captain Starlight roles throughout Australia have been reduced as a result.

[34] The Respondent confirmed it had prioritised giving work to those employees who were eligible for JobKeeper, and the Applicant was not one of these employees.

[35] Given the Applicant’s casual status and her relatively short period of employment with the Respondent, as well as the fact of the reduced workforce caused by the COVID-19 pandemic, I consider the merits of the Applicant’s case are not strong. This weighs against a finding that there are exceptional circumstances.

Fairness as between the person and other persons in a similar position

[36] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[37] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[38] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

H Hickey, on her own behalf.
S Moten for Starlight Children’s Foundation.

Hearing details:

2020.
Sydney (By telephone):
December 4.

Printed by authority of the Commonwealth Government Printer

<PR725133>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].