Katherine Rattray v Wodonga Institute of TAFE

[2018] FWC 476

[2018] FWC 476

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Katherine Rattray
v
Wodonga Institute of TAFE
(C2017/6196)

COMMISSIONER LEE MELBOURNE, 5 FEBRUARY 2018

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 12 December 2017. This is an application to deal with contraventions involving a dismissal made pursuant to s.365 of the Fair Work Act 2009 (the Act).  The matter was listed for Objections Conference/Hearing, by Telephone before me on 12 December 2017.

[2] On 10 November 2017, Ms Katherine Rattray (the Applicant) made an application pursuant to s.365 of the Act alleging that adverse action had been taken against her by way of dismissal in contravention of the general protections set out in Part 3-1 of the Act, by her employer Wodonga Institute of TAFE (the Respondent).

[3] Ms McInnes was granted permission to appear for the Applicant and Mr Proietto was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. It is common ground, and it is conceded by Ms McInnes representing the Applicant, that the application was made outside of the prescribed period within which such applications can be made. 

[4] The Applicant asks the Fair Work Commission (the Commission) to allow a further period in accordance with section 366(2) of the Act and the Respondent objects to a further period being granted. I am required to determine whether I am satisfied that there are exceptional circumstances in this matter such that I should exercise the discretion to allow a further period for the application to be made.

[5] It is not in contest that the Applicant was dismissed on 18 October 2017 and the application, in those circumstances, should have been lodged on 8 November 2017.  The application was lodged on 10 November 2017 and is therefore lodged two days outside of the statutory time frame.

[6] I note that at the time that the application was lodged, and it appears to have been lodged by the Applicant's representative, the Applicant's representative or the Applicant, whoever filled the form out, erroneously answered ‘yes’ that the application was made within 21 calendar days of the dismissal taking effect, which was clearly wrong in the circumstances. 

[7] By way of background, the Applicant was dismissed by the Respondent at a meeting held on 18 October 2017.  Subsequent to the meeting and on the same day, it is apparent the Respondent wrote to the Applicant setting out the reasons for the dismissal.

[8] The reasons for the dismissal that were set out in that letter of 18 October 2017 that was signed by Mark Dixon, the Chief Executive Officer, included, in summary that the Applicant behaved in a manner towards her colleagues that breached the Victorian Occupational Health and Safety Act 2004 (s.25(1)(b)), the Respondent's Discrimination, Harassment and Bullying Policy and Occupational Health and Safety Policy and the Staff Code of Conduct. Secondly, that the Applicant allegedly behaved in a manner towards students that breached the Victorian Occupational Health and Safety Act 2004 (s25.(1)(b)), the same policies and Code of Conduct of the Respondent. Thirdly, that she breached her contract of employment and the requirements of her position description in that she was not performing her teaching role to the expected levels of experience, despite continued support and an informal performance management had been unable to achieve the desired level of performance, and that she had been issued with her first written warning previously in terms of staff disciplinary policy.

[9] The Applicant disputes those allegations and asserts that she was dismissed because of her mental condition and the Respondent was aware of her mental illness and that she was assured that the Respondent would support her with it.

[10] The Respondent disputes the Applicant was dismissed because she has a mental illness.  There is no dispute about the fact of the applicant having a mental illness, but the respondent denies that it was a factor in her termination.

[11] An application made under s.365 of the Act must comply with s.366 of the Act. Section 366(1) sets out that an application must be made within 21 days after the dismissal took effect, provided that under subsection (2), the Commission may allow a further period if the Commission is satisfied there are exceptional circumstances, taking into account the factors that are set out at s.366(2)(a) - (e). It is clear from the structure of section 366(2) of the Act that each of those matters must be taken into account when assessing whether there exist exceptional circumstances.

[12] Subsection 336(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. I was taken to the decision of Nulty v Blue Star Group Pty Ltd 1 by the Respondent and I agree that this approach is relevant and I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[13] I will turn to the criteria in s.366(2)(a) the reason for the delay. The Applicant's representative was directed and filed an Applicant’s Outline of argument: Extension of time in this matter.  In response to Question 1(d) in that document to the question ‘Did you make your application within 21 days of when the dismissal took effect?’ it correctly says ‘No’ and states that the application was lodged two days out of time and that appears to have been due to an administrative error.  No further reason was advanced by way of submission by Ms McInnes on behalf of the Applicant during the hearing.

[14] The Applicant's representative conceded, when asked by me during the hearing in what way that reason for delay was exceptional, that there was nothing particularly exceptional about it.  There is not an acceptable reason for the delay and that weighs against exercising the discretion to grant an extension of time.

[15] In terms of s.366(b) any action taken by the person to dispute the dismissal, the Respondent asserts, and I agree, that there is no evidence that there was any action taken to dispute the dismissal other than the lodging of the application out of time. The Applicant did lodge a WorkCover claim on 31 October 2017 and was clearly in a position to effect that on 31 October 2017.  It would seem to follow from that there was no reason that she could not have made an application at or around that time for unfair dismissal.  There is no evidence that she has done so and certainly in respect to lodging of the WorkCover application I do not consider it to be action taken by the person to dispute the dismissal, which does not weigh in favour of granting the extension.

[16] In terms of s.366(c) prejudice to the employer (including prejudice caused by the delay), the Respondent concedes that there is no particular prejudice to the Respondent, and rightly so as it is only a short period, being two days. The Applicant made fairly extensive submissions about the fact that there is no particular prejudice to the employer if I was to grant the extension, and I generally agree with those submissions of the Applicant. However absence of prejudice in itself is an insufficient basis for granting an extension of time and, in the circumstances of this case, I regard this factor as a neutral factor.

[17] In respect to s.366(d) the merits of the application, there will be no doubt contested factual matters.  I set out earlier the essence of the reasons that the Respondent has stated for the Applicant’s dismissal. The Applicant submits that there would be a case run that the fact of her having a mental illness was inextricably linked to the decision to terminate her employment.  There is no doubt that there was adverse action in this case, the Applicant has been dismissed from her employment, however, whether that was because of her mental illness or not would be a matter that would have to be ultimately resolved through evidence.

[18] The Respondent indicated that if the matter did proceed in the appropriate jurisdiction evidence would be led as to what motivated the Respondent in its decision to terminate the employment of the Applicant. Ultimately, how that is resolved is a matter for the appropriate jurisdiction and I agree with the submissions of the Respondent that it is well settled that in determining an extension of time application the Commission should not embark on a detailed consideration of the substantive case. Certainly, on what has been submitted, the Applicant's case is not without merit, however there is not sufficient material before me to form a view that the case is so meritorious that that would weigh in favour of granting an extension of time.  I therefore consider the merits of the application to be a neutral factor.

[19] In terms of 366(e) fairness as between the person and other persons in a like position, there were no submissions made on that point by the Applicant. This is a neutral consideration.

[20] Having considered all of the factors in s.366(2) of the Act, I am not satisfied that there is an acceptable reason for the delay and there has been no particular action taken by the person to dispute the dismissal. I am not satisfied that there is any prejudice to the employer, which I consider to be a neutral consideration. In terms of the merits of the application, I am unable to conclude that the merits of the application are anything other than a neutral consideration in the circumstances of this case, and nothing particularly arises from a consideration of s.366(e). Overall, there are no factors which weigh towards the exercising of my discretion to grant an extension of time.

[21] Considering the factors overall, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[22] An order giving effect to this decision has previously been published in PR598685.

COMMISSIONER

Appearances:

C McInnes for the Applicant

D Proietto for the Respondent

Hearing details:

2017

Melbourne (Telephone Hearing):

12 December.

Final written submissions:

11 December 2017

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

Printed by authority of the Commonwealth Government Printer

<PR599758>