Katherine Barakis v Melton City Council
[2024] FWC 864
•4 APRIL 2024
[2024] FWC 864
The attached document replaces the document previously issued with the above code on 4 April 2024.
A typographical error in the first paragraph has been amended.
Associate to Commissioner Perica
Dated 5 April 2024.
| [2024] FWC 864 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Katherine Barakis
v
Melton City Council
(C2024/988)
| COMMISSIONER PERICA | MELBOURNE, 4 APRIL 2024 |
Application to deal with contraventions involving dismissal
Katherine Barakis (the Applicant) made an application under s 365 of the Fair Work Act 2009 alleging she was dismissed from her employment with Melton City Council (the Respondent) in contravention of Part 3-1.
Procedural history
The application may have been made out of time. To deal with this threshold issue, I made directions on 12 March 2024 and listed the matter for a determinative conference on 4 April 2024.
The determinative conference proceeded on 4 April 2024. The Applicant represented herself. The Respondent was represented by Mr. Christopher Charalambous of the firm Maddocks after I had granted him leave under s 596. Mr. Charalambous appeared together with Ms. Janine Thomas, the Acting Manager of People and Safety of the Respondent.
For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.
When must an application for an order granting a remedy be made?
Section 366(1) provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
A Full Bench has stated in relation to a general protections application, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1] It is not contested the dismissal took effect on 22 January 2024. It follows the final day of the 21-day period was 12 February 2024 and ended at midnight on that day.
The application was filed at 4:52 PM on 19 February 2024, seven days late. As it was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Under section 366(2), the Commission may allow a further period for a general protections application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 February 2024. The delay is the period commencing immediately after that time until 4:52 PM on 19 February 2024. Circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Applicant’s submissions on the reasons
In her written submissions of fact and at the determinative conference, she submitted that after reading her termination letter and her employment contract, she “believed” that she had “no recourse to challenge the dismissal because she was on probation”.[6]
The other reasons she gave for the delay included:[7]
· From 23 January until 11 February 2024 she “stayed in bed for two weeks”;
· From 11 to 14 February 2024, she received “distressing messages from a former MCC colleague” which was a motivating factor in her decision to lodge an application;
· On 12 February 2023, she read a news article which included a quote from the Fair Work Ombudsman that “employees on probation receive the same entitlements as a person who is not in a probation period”. The Applicant noted that the article did not contain a reference to the 21 day time limit; and
· On 18 February 2024 she “reflected with friends” and “decided to lodge an unfair dismissal application”.
Respondent’s submissions on reasons
The Respondent’s written submissions and submissions made at the determinative conference were to the effect the Applicant’s explanation is “wholly inadequate” and that the Applicant has “not established any exceptional circumstances which led her to believe that she had no recourse to challenge the termination decision at any time”.[8]
Consideration
The test in Nulty v Blue Star Group PtyLtd[9](Nulty) is that exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.
Mere ignorance of the statutory time limit is not an exceptional circumstance.[10] An incorrect assumption of the legal rights of probationary employees, resting as it does on ignorance of the law, can also be regarded as routine and commonplace rather than exceptional. The Applicant provided no evidence to indicate she had made any enquiry during the time limit to investigate whether she had any rights in relation to her termination.
There is nothing exceptional in the reasons for the delay. In those circumstances this factor counts against an extension of time.
What action was taken by the Applicant to dispute the dismissal?
The Applicant and the Respondent agreed she took no action to dispute the dismissal aside from lodging her application. This factor counts against an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute that the Respondent would suffer no prejudice if an extension of time were to be granted. The lack of prejudice to the Respondent is a neutral factor in as assessment of whether an extension of time should be granted.
What are the merits of the application?
The Applicant asserts the reasons for her termination included her exercise or workplace rights to take carers leave to look after her mother.
She submits in her Form F8 that none of the reasons given for her termination which included “deliverables, staff management and staff expectations” were justified and were inconsistent with the positive feedback she had received, particularly in relation to the deliverables.
The Respondent’s submissions on active reason
In response to the assertion the Applicant was terminated for taking one month of unpaid carer’s leave to care for her mother, the Respondent submits “the Applicant was not on carer’s leave during this time”, and that “no application to take carer’s leave was submitted to the Respondent prior to the Applicant going on leave.”[11]
The Respondent also submits that it “supported the Applicant to take the leave by requesting approval from the CEO to access leave without pay well before she otherwise would have been able to under the Respondent’s policies”.[12]
Respondent submission on the termination and the Applicant’s responses
The Respondent filed a witness statement of Ms. Thomas, who stated:
“In or around December 2023 to January 2024, whilst Ms. Barakis was on her approved leave, it became apparent to me and other members of the People and Safety team who discussed it with me that these issues discussed with Ms. Barakis prior to her leave were more substantial than we initially realised, and indeed turned out to be terminal in the context of Ms. Barakis still being within her probationary period. Specifically, at this time, we determined that in addition to the issues outlined above:
· Ms. Barakis put unnecessary demands on certain members of the People & Safety team (some direct reports and other non-direct reports) – for example, by unreasonably submitting requests of the payroll team during high demand periods. Such conduct was not in line with required behaviours of a person in the Role.
· Key deliverables had been heavily supported by the work of senior members of the team, which was beyond what was reasonable at the level at which Ms. Barakis was employed – for example, written material that Ms. Barakis had prepared had to be redrafted by Ms. Noel.
I asked Ms. Thomas to elaborate on the “unnecessary demands on People & Safety”. In her submissions at the conference, she stated this related to the organisation of a function by the Applicant. The Applicant in response stated the function was not her responsibility but rather that of Ms. Thomas and an events co-ordinator at the Respondent.
I also asked Ms. Thomas if she could elaborate on the key deliverables issue raised in her statement. She stated it related to the drafting of induction materials by the Applicant which needed a lot of work after the Applicant had prepared it. The Applicant stated in response that she had done what she had been asked to do, which was to prepare a draft.
In circumstances where an employee is dismissed on probation for performance issues, it is difficult for the Applicant to assert that one of the reasons she was dismissed was for the exercise of a workplace right to carers leave.
This is particularly the case where it is evident the employer took steps to facilitate her leave to tend to her sick mother. There is, however, temporal proximity between the decision to dismiss and the taking of the leave. This may be found to support an inference that the reasons for dismissal included the purported exercise of a workplace right.
It is not ideal trying to discern the merits of this case from the limited submissions I received in the determinative conference. It is evident the merits of the application turn on contested points of fact. In order to make a merit assessment in this case, a full hearing is required where the evidence may be comprehensively heard and weighed.
In the circumstances it is not possible to make an assessment of the merits of this application. This factor is neutral to a determination of whether an extension of time should be granted.
Fairness as between the Applicant and other persons in a similar position
Neither party brought any relevant matter to my attention concerning this consideration. I therefore find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 366(2)(e).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
In my assessment for the purposes of s 366(2)(a), the matters raised by the Applicant as reasons for delay in lodging her general protections application are routine rather than exceptional. The consideration counts against an extension of time.
The Applicant did not take action to dispute the dismissal apart from lodging her application. This factor counts against an extension of time under s 366(2)(b).
The considerations in s 366(2)(c), (d) and (e) are neutral factors in an assessment of exceptional circumstances for the purposes of s 366(2):
s 366(2)(c): There is no evidence of prejudice against the Respondent.
s 366(2)(d): On the limited evidence available, I cannot make a merit assessment for this application.
s 366(2)(e): No submissions were made on fairness arising between the Applicant and other persons in a similar position.
I therefore conclude the reason for the delay and the lack of action taken by the Applicant to dispute the dismissal count against a finding of exceptional circumstances under s 366(2). All other factors under s 366(2)(c) to (e) are neutral. It follows I am not satisfied that there are exceptional circumstances. There is no basis for me to extend time, and I decline to do so. The Applicant’s general protections application is dismissed.[13]
COMMISSIONER
Appearances:
Ms. Katherine Barakis, the Applicant
Mr. Christopher Charalambous, of Maddocks, for the Respondent
Hearing details:
4 April 2024
Microsoft Teams
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Ibid [40].
[6] Digital Commission Book at p.41.
[7] DCB at p. 40.
[8] DCB at pp. 53-54.
[9] [2011] FWAFB 975.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[11] DCB at p. 55.
[12] Ibid.
[13] PR773164.
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