Kim Maggs v Nationwide Group T/A Nationwide Towing Services Pty Ltd
[2022] FWC 2980
•10 NOVEMBER 2022
| [2022] FWC 2980 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kim Maggs
v
Nationwide Group T/A Nationwide Towing Services Pty Ltd
(U2022/10005)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 10 NOVEMBER 2022 |
Application for an unfair dismissal remedy – extension of time.
These are edited reasons of the decision delivered ex tempore and recorded in transcript on 8 November 2022.
On 12 October 2022 Ms Maggs made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent, Nationwide Group T/A Nationwide Towing Services Pty Ltd, when her employment ended on 15 September 2022.
Section 394(2) of the Fair Work Act 2009 (Cth) 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) of the Act.
In order for the application to proceed, Ms Maggs requires the Commission grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a hearing on 8 November 2022, at which Ms Maggs gave evidence in support of her application.
Extension of time
Additional time can be allowed under s.394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. [1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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 the circumstances must be considered.[2]
In this case, the Application was lodged on 12 October 2022 and Ms Maggs’ employment ended on 15 September 2022. Ms Maggs’ Application was filed 6 days after the 21-day time limit under the Act, ending at midnight on 6 October.
Ms Maggs’ evidence is that on 11 August 2022 she received an email advising that the Respondent proposed to terminate her employment and providing her 10 days to reply with evidence as to why they should keep her employed.
Ms Maggs made multiple attempts to obtain advice and assistance including from JobWatch, WorkCover, WorkSafe and “Fair Work” but that “all lead to nowhere as the advice given from each department was for me to ring the other department”. Ms Maggs also sought legal advice but was not able to afford assistance beyond initial advice.
Ms Maggs found the situation very stressful, compounded by her not having access to a computer at the time.
In light of Ms Maggs’ evidence that she had sought assistance from “Fair Work”, enquiries were made of the Commission’s telephone assistance line which revealed that:
(a)On the day Ms Maggs received a show cause letter (11 August) she called the Commission’s Infoline. She was informed that she was likely to be eligible to make an unfair dismissal claim if her employment was terminated, and that any such claim would need to be made within 21 days of the dismissal. Ms Maggs was also given the contact details for the Commission’s Workplace Advice Service along with contact details for other legal services and was referred to information on the Commission’s website.
(b)Further calls to the Commission were made on 20 September and 5 October 2022. On both occasions the caller selected the option for ‘workplace entitlements’ over ‘dismissal applications’. This selection triggers a recording directing the caller to contact the Fair Work Ombudsman.
This is consistent with Ms Maggs’ evidence that she was also pursuing other claims and entitlements such as payment for notice. She contends that she also spoke to the Fair Work Ombudsman on 11 October during which she was advised to put in an unfair dismissal claim. Ms Maggs says that she was told that the application would be within the 21 day period as it was based on business days and not calendar days. Ms Maggs lodged her application the next day. There is no documentary evidence of this call, and in any event, Ms Maggs acknowledged that she was well aware of the 21-day time limit before this date. Further, she had been advised by the Commission directly on the 11 August 2022 that she had to file an unfair dismissal application within 21 days of the dismissal taking effect.
I am not satisfied that Ms Maggs has provided an acceptable explanation for the delay in lodging her application. From 11 August 2022, Ms Maggs knew that if she was dismissed and wanted to make an unfair dismissal claim she needed to do so within 21 days of the dismissal taking effect. Whilst I accept that the applicant found the experience very stressful, this is neither unusual nor exceptional.
Overall, I am not satisfied that Ms Maggs has provided an acceptable explanation for the delay and that is a matter that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect:
Ms Maggs was informed by letter sent by email on 15 September 2022, that her employment had been terminated. Accordingly, she had the benefit of the full 21-day period in which to make an application.
Any action taken by the person to dispute the dismissal:
There is no evidence of any other action taken by Ms Maggs to dispute the dismissal and I have treated this as a neutral consideration. A letter sent on her behalf to the Respondent proposing a negotiated agreement to end her employment was sent prior to her dismissal. Other action taken regarding claims for alleged unpaid entitlements, are also not factors that favour a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any particular prejudice to the Respondent. I have treated this as a neutral consideration.
Merits of the application:
At this early stage of the application, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment of the merits based on the limited material that is available to me through the prism of viewing Ms Maggs’ case at its most favourable.
Ms Maggs was dismissed on the basis that she was unable to perform the inherent requirements of her role as Team Leader for the foreseeable future. Ms Maggs had not attended work for over 12 months due to a medical incapacity. In response to a letter advising that her termination was being considered, she provided a medical certificate advising that she could resume her pre-injury role with some support. She did not attend a meeting to discuss her return to work, and on 14 September 2022 in response to a further follow-up by the Respondent, advised that she would not be attending the office until issues were resolved and provided a new medical certificate that she had no capacity to work for a further month.
On the basis of the material presently before the Commission, the merits do not favour a grant of further time.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this as a neutral consideration in this case.
Conclusion
The Commission can only extend time if it is satisfied that there are exceptional circumstances. None of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case whether considered individually or together. As there are no exceptional circumstances, there is no basis to allow additional time for Ms Maggs to make her application. This means that Ms Maggs is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order[1] to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
K Maggs, Applicant.
P Wilding for the Respondent
Hearing details:
2022
Melbourne (by video):
November 8
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[1] PR747784
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