Kylie Hockley v Department of Human Services

[2020] FWC 499

[2020] FWC 499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Hockley
v
Department of Human Services
(U2019/11004)

COMMISSIONER WILLIAMS PERTH, 31 JANUARY 2020

Application for an unfair dismissal remedy.

[1] Ms Kylie Hockley (Ms Hockley or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is the Commonwealth of Australia represented by Services Australia formerly the Department of Human Services (the Respondent).

Background

[2] The parties agree the dismissal took effect on 17 June 2019.

[3] The application was signed by the Applicant on 15 September 2019.

[4] The application was filed in the Fair Work Commission (Commission) on 1 October 2019.

[5] The application has been lodged more than 21 days after the alleged dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[6] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] Consequently, I wrote to the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[8] The Applicant provided a written response to the Commission’s direction. The Respondent has similarly replied. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The reason for the delay

[9] On her application the Applicant provided the following as the reason for the delay in making the application.

"I was unable to dispute the dismissal. I was waiting on Medical results and Specialist appointments regarding my disability to be finalised in regards to my diagnoses. I have now had all testing and reports completed."

[10] In response to the Commission's request for further information in relation to the application being made out of time, relevantly the Applicant provided other reasons in addition to this as follows:

"I am fully aware of the compliances in order to make an application to the Fair Work Commission. Under my circumstances the unfair dismissal application was lodged at a later date as my clinical diagnoses from Heidi Welsh (psychologist) was still awaiting on Dr Jonathan Foster (Neuropsychologist) Clinical score results for Cognitive and Memory. This was out of my control as the testing needed completion before I could lodge an Unfair Work Dismissal application.

The Fair Work Commission was aware of myself lodging the claim. I spoke with the Commission on 5/06/2019 and it was made clear to me that under my circumstances the Fair Work Commission should be satisfied that there is exceptional circumstances in my case for it to be lodged late. I had no choice but to await tests and this is what caused a delay in lodging my application. My Team Leaders were fully kept up to date with the progression of my diagnosis's and I was dismissed prior to being given the opportunity to lodge my claim.

Heidi Walsh(psychologist) prior to being dismissed at the Department of Human Services made it clear in writing that further time was required in my work place as I was in dispute with team leader and was giving opportunities to my team leader to demote me or employ me in other area of my workplace until this matter was resolved clinically. This did not happen.

The Department of Human Services Dismissed me when it was known to them that I was progressively working towards my diagnosis as quickly as possible and was advised by professionals that an extension of time is needed. This is prejudice behaviour and of complete unfairness."

[11] It is clear when referring to a need to obtain medical results and diagnoses and completing tests the Applicant is not suggesting she was incapable of making her application within the 21 day timeframe due to her health at the time. Rather it seems the Applicant believed she required all this medical information which she believed would support her claim, before she could file the application.

[12] I accept the Applicant believed she should obtain medical evidence to support her claim of unfair dismissal before she made her application to the Commission. This however was a mistaken belief. The fact that she had not obtained all the supporting evidence she wanted to have did not prevent her from making an application within 21 days of her dismissal. Her mistaken belief about this is not an acceptable reason for the delay nor an exceptional circumstance. It is not uncommon for Applicants to have mistaken beliefs about how they should prepare their applications.

[13] The Applicant also explains she spoke to "the Commission" about her circumstances and from that understood the Commission should be satisfied there were exceptional circumstances in her case for her application to be lodged late. The details of that communication were not provided.

[14] Members of the public enquiring by telephone to the Commission about making applications may be given general advice about applications that can be made and procedural advice, but Commission staff are not able to give legal advice.

[15] The Applicant says this communication occurred on 5 June 2019, which was 12 days before she had been notified of her dismissal and before her dismissal took effect (the parties agree the dismissal took effect on 17 June 2019).

[16] Only members of the Commission have the power to determine whether in a particular case of late lodgement there are exceptional circumstances warranting an extension of time being granted. In addition, judgement about this cannot possibly be made before a dismissal has occurred because some of the particular matters that must be taken into account and specified in section 394(3) cannot be known until after the dismissal has taken effect.

[17] Whilst it is unfortunate that as a consequence of this communication the Applicant believed her circumstances would be deemed exceptional by the Commission, she was mistaken about this.

[18] The onus is on the Applicant to demonstrate there were exceptional circumstances. The Applicant has not demonstrated that she was given incorrect advice.

[19] The Commission has repeatedly held that being unaware of the legal requirements in the legislation or having a mistaken belief about these is not an acceptable reason for making an application after the required time has passed.

[20] Considering the Applicant's reasons for the delay in making her application none of these were exceptional circumstances nor in my view where they acceptable reasons for the delay either individually or when considered together.

Awareness of the date of dismissal

[21] The Applicant was made aware of her dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[22] There is no evidence that the Applicant took any action to dispute her dismissal other than the making of this application.

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

[23] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[24] It is apparent from the extensive materials filed with the application and from the lengthy chronology of events contained in the Respondents reply that there is a long and complex history to the issues which are relevant to the Applicant’s dismissal.

[25] It is only at a hearing of a matter such as this would it become clear whether or not the application has merit. The Commission does not embark upon a hearing of the merit when determining the preliminary issue of an application to extend time for filing the substantive application.

[26] Consequently, I view the merits of the application as a neutral factor in this decision.

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

[27] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[28] The onus is on the Applicant to provide evidence and submissions to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[29] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[30] An order to that effect will be issued in conjunction with this decision.

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