Kristin Murdock v Society of Precision Agriculture Australia

[2018] FWC 6292

[2018] FWC 6292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kristin Murdock
v
Society of Precision Agriculture Australia
(C2018/5235)

DEPUTY PRESIDENT DEAN SYDNEY, 17 OCTOBER 2018

Application to deal with contraventions involving dismissal – extension of time.

[1] Ms Kristin Murdock was employed by the Society of Precision Agriculture Australia (SPAA) from 9 May 2018 until she was terminated on 2 August 2018.

[2] On 3 August 2018, Ms Murdock made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009. That application was discontinued by Ms Murdock on 11 September 2018.

[3] On 20 September 2018, Ms Murdock made an application under s.365 of the Act for the Commission to deal with a general protections dispute involving her dismissal. Ms Murdock’s general protections application was made 28 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Commission.

[4] The matter was listed for hearing by telephone on 12 October 2018 to consider the extension of time issue. Directions were issued requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[5] Ms Murdock failed to file any material by the stipulated date and did not respond to any of the Commission’s communications. Further attempts were made to contact Ms Murdock by telephone without success.

[6] In the circumstances, correspondence was sent on 10 October 2018 to inform the parties that the extension of time issue would be determined ‘on the papers’.

[7] On 11 October 2018, Ms Murdock contacted the Commission and advised that she had just returned from overseas and was only able to have access to the emails upon her return. On this basis, Ms Murdock was allowed until close of business on 12 October 2018 to file her submissions, which she did, and those submissions were taken into consideration in my determination of this matter.

Consideration

[8] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[9] Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person 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 person and other persons in a like position.

[10] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[11] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[12] Ms Murdock provided the reason for the delay as follows:

“I originally submitted an unfair dismissal but found I had not been employed long enough Hence I withdrew that and now submit this application.”

[13] Ms Murdock withdrew her unfair dismissal application on 11 September 2018 and filed the general protections application on 20 September 2018. There is no explanation as to why she took a further 9 days to file the present application.

[14] On the material before me, I am not satisfied that Ms Murdock has made out an acceptable explanation of the reason for the delay in lodging the application.

[15] I find this weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[16] There is no evidence that the Applicant took any steps to contest the termination until the filing of the two applications in the Commission.

[17] I find this weighs against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[18] I am not persuaded that granting an extension of time in this case would result in any prejudice to SPAA. A lack of prejudice is an insufficient basis alone to grant an extension of time, however it weighs in favour of a finding to extend time.

The merits of the application

[19] The Commission record indicates that Ms Murdock discontinued the unfair dismissal application after she became aware that she has not met the minimum employment period requirement and is therefore not a person protected from unfair dismissal provisions of the Act. This was conceded by Ms Murdock (see paragraph 12 above).

[20] Ms Murdock asserts in the present application that SPAA had breached s.352 of the Act which prohibits dismissal on the grounds of temporary absence from work due to illness or injury. In that regard, Ms Murdock refers to her being unwell for two weeks which resulted her in missing “a couple of actual days work, one of which, unfortunately, was flying to Brisbane for a meeting.”

[21] Much of the rest of what Ms Murdock contends in the application goes to the alleged unfair treatment and bullying she was subject to during the employment and does not appear to identify any adverse action taken against her as a result of her temporary absence due to illness.

[22] SPAA denies the allegations and contends that Ms Murdock was dismissed for performance issues within the probation period.

[23] In Nulty, the Full Bench said:

“The very point of a probationary period or, more particularly, the minimum period of employment required by s.382(a) and s.383 of the FW Act, is that an employer should be able to dismiss an employee if the employer is dissatisfied with the employee’s performance during that period without being exposed to an unfair dismissal claim - and not have to face an argument about whether its assessment of poor performance is justified.” 2

[24] It seems clear that Ms Murdock seeks an unfair dismissal remedy and only filed the present application when she found that she was unable to pursue an unfair dismissal claim.

[25] On the material before me, I am of the view that Ms Murdock’s claim of alleged contravention involving temporary illness has limited prospects of success.

[26] I find this weighs against there being exceptional circumstances such as to justify the granting of an extension of time.

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

[27] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as bet ween the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4

[28] I am not satisfied that the criteria of fairness as between the Applicant and other persons in a similar position weighs strongly in favour of either party, and I therefore find it to be a neutral consideration.

Conclusion

[29] I have considered all of the matters to which my attention is directed by the Act.

[30] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Murdock are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[31] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701206>

1 [2011] FWAFB 975.

 2 Ibid at [53].

 3   [2015] FWC 8885.

 4 Ibid at [29].