Jordana Angus v Institute For Urban Indigenous Health
[2024] FWC 959
•15 APRIL 2024
[2024] FWC 959
The attached document replaces the document previously issued with the above code on 15 April 2024.
Paragraph [12] has been updated to amend a drafting error.
Associate to Deputy President Dean
Dated 15 April 2024
| [2024] FWC 959 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jordana Angus
v
Institute For Urban Indigenous Health
(U2024/2274)
| DEPUTY PRESIDENT DEAN | CANBERRA, 15 APRIL 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
Ms Jordana Angus (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that she was unfairly dismissed by the Institute for Urban Indigenous Health (Respondent).
Section 394(2) of the Act provides 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). The Applicant’s dismissal took effect on 28 December 2023 and she made this application on 29 February 2024, which is 42 days outside the 21 day period.
The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The matter was listed for hearing on 12 April 2024. The Applicant appeared on her own behalf and Mr Secombe (HR Operations Manager) appeared for the Respondent.
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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
The Act does not specify what reason for the 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]
The reason given for the delay by the Applicant was as follows:
“My mental and physical health has been impacted so greatly by this matter that I have not been able return to full time employment, and the process of addressing the matter has been mentally incapacitating being triggered by having to relive the experience repeatedly. The unprofessional behaviour of management leading up to my performance improvement plan and subsequent termination that followed has caused my mental capacity to be impacted causing anxiety, and the sudden onset of panic attacks frequently, particularly when having to address this matter.
…
I have also commenced taking medication to address the onset of anxiety and stress from having to address taking on such a large organisation that has a history of being able to act unprofessionally towards their staff and clients with no repercussions or acknowledgement of accountability.”
The Applicant provided a medical certificate dated 19 March 2024 indicating that she had been examined that day by her doctor and was suffering from an exacerbation of her anxiety related to her termination from work. It further indicated that the Applicant was being treated by a clinical psychologist and had commenced taking antidepressant medication from 19 March 2024.
Additionally, the Applicant provided a letter from her treating psychologist dated 18 March 2024, which indicated that the psychologist had treated the Applicant from 30 June to 8 December 2023 for an unrelated matter, and had seen the Applicant again on 16 March 2024. The psychologist reported that at the 16 March appointment, the Applicant expressed significant anxiety related to her dismissal.
There is no evidence that the Applicant saw any healthcare professional between the date of her dismissal and 16 March 2024.
While I accept the Applicant was suffering from anxiety, the medical evidence submitted does not support a finding that the Applicant was incapacitated to such an extent that she was unable to make her application within the statutory time frame.
To this end, I note the Commission provided detailed information to the Applicant in an email dated 13 March 2024 explaining what was required to demonstrate that there were exceptional circumstances for not lodging the application on time. This email includes the following:
“For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time.”
The medical evidence supplied by the Applicant does not, in my view, reach the standard required, in that it does not explain why her medical condition prevented her from making this application within time.
In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. 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
The Applicant was aware of the dismissal on the day it took effect. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant gave evidence that during the termination meeting she told the Respondent’s representatives she would take the matter further as she was unhappy with the outcome (i.e. her dismissal) and thought it was unfair. She also gave evidence that she subsequently contacted some representatives of the Respondent, including the Acting CEO, to advise that she would be taking the matter further.
The Respondent says that if the Applicant had time and capacity to email various representatives of the Respondent shortly after her dismissal, then she was able to lodge her application within the 21-day time limit.
While the Respondent was on notice that further action might have been taken by the Applicant, the application was 42 days late and after such a lengthy period it would be reasonable to assume that no further action would be taken. Overall, I consider that this criterion does not weigh in favour or against a finding that there are exceptional circumstances.
Prejudice to the employer
While 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
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant stated she was placed on a performance improvement plan and this process was handled unprofessionally in a number of ways which she outlined in her application. She said she had raised numerous concerns about the workplace with her manager however these concerns were not properly addressed. She said she was targeted as a result of raising concerns.
The Respondent contends the Applicant was issued with a final warning in September 2023, the outcome of which was the introduction of a performance improvement plan. It says that she was unable to achieve the agreed outcomes, and so a show cause notice was issued and she was subsequently dismissed.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
The Applicant submitted other staff members in a similar role were doing similar things as the Applicant but were not reprimanded. It is difficult to properly assess this criterion given the limited information before the Commission and as such I consider this to be a neutral consideration.
Conclusion
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:
J Angus on her own behalf.
C Secombe for Institute For Urban Indigenous Health.
Hearing details:
2024.
By telephone:
April 12.
[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].
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