Leah Morgan v Total Fusion Morningside Pty Ltd as trustee for Total Fusion Morningside Unit Trust

Case •

[2024] FWC 850

•

3 APRIL 2024
[2024] FWC 850

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leah Morgan
v

Total Fusion Morningside Pty Ltd as trustee for Total Fusion Morningside Unit Trust

(U2024/1074)

COMMISSIONER CRAWFORD

SYDNEY, 3 APRIL 2024

Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed

Background

  1. Leah Morgan (Ms Morgan) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she was unfairly dismissed by Total Fusion Morningside Pty Ltd as trustee for Total Fusion Morningside Unit Trust (Total Fusion).

  1. Total Fusion operates a health and wellness club at Morningside which includes gym and spa facilities. Ms Morgan was employed on a casual basis as a Dermal Therapist. The Hair and Beauty Industry Award 2020 covered Ms Morgan’s employment with Total Fusion. 

  1. Ms Morgan’s Form F2 unfair dismissal application was filed on 1 February 2024. The Form F2 identified a dismissal date of 14 December 2023 and indicated the application was not filed within 21 days of the dismissal taking effect.

  1. On 7 March 2024, Total Fusion filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Ms Morgan’s application was not filed within 21 days of the dismissal taking effect on 14 December 2023 and argued that an extension of time should not be granted. Total Fusion also submitted Ms Morgan was not protected from unfair dismissal because she has not completed the minimum employment period of six months. Total Fusion identified an employment commencement date of 28 June 2023.

  1. I issued directions for the filing of material regarding the jurisdictional objections and listed those issues for determinative conference/hearing via video on 2 April 2024.

  1. Ms Morgan did not file material in accordance with the directions and did not attend the determinative conference/hearing on 2 April 2024. My chambers unsuccessfully attempted to contact Ms Morgan via phone and email to determine whether she intended to attend the proceeding. Ms Morgan had also failed to respond to an earlier email from my chambers which sought confirmation of whether she was still pressing the unfair dismissal application.

  1. I had previously granted permission for Total Fusion to be represented at the determinative conference/hearing. I was satisfied granting permission would enable the matter to be dealt with more efficiently. Mariam Noorzai from Employsure represented Total Fusion.

  1. At the outset of the proceeding, I indicated my provisional view was that I should proceed to hear the jurisdictional objections despite Ms Morgan not being in attendance. Total Fusion did not oppose this course of action. I considered this approach was fair and appropriate given Ms Morgan had provided no explanation for her non-attendance, Ms Morgan failed to file material in support of her case, and Ms Morgan failed to confirm that she wished to press the application.  

Material filed

Ms Morgan

  1. Ms Morgan relied on the following explanation contained in her Form F2 application in support of an extension of time being granted:

“The abrupt dismissal was a big hit to my mental health which took a while to recover from as well as not thinking I had any rights in this situation.”

  1. I marked Ms Morgan’ application form Exhibit A1.

  1. Ms Morgan also filed a copy of her termination letter dated 14 December 2023. I marked the termination letter Exhibit A2.

Total Fusion

  1. Total Fusion relied on the following evidence in support of its jurisdictional objections:

·   A witness statement from Shannon Woolf (People and Culture Manager) dated 25 March 2024. The statement had the following documents attached: Ms Morgan’s contract of employment, Ms Morgan’s termination letter, and Ms Morgan’s Form F2 unfair dismissal application. I marked Ms Woolf’s statement Exhibit R1.

·   A witness statement from Ebony O’Sullivan (General Manager) dated 25 March 2024. The statement had a copy of emails exchanged between Ms Morgan and Ms O’Sullivan on 14 and 15 December 2023 attached. I marked Ms O’Sullivan’s statement Exhibit R2.

  1. Total Fusion also relied on its Form F3 employer response form and an outline of submissions dated 25 March 2024. Ms Noorzai made brief oral submissions during the hearing.

Extension of time

  1. Section 394(2) of the FW Act provides that an unfair dismissal 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?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. There is no dispute that Ms Morgan’s employment was terminated effective 14 December 2023. Given the dismissal date of 14 December 2023, the 21-day filing period ended on 4 January 2024. Ms Morgan’s application was filed 28 days late on 1 February 2024. As a result, Ms Morgan needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

  1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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)   whether Ms Morgan first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Ms Morgan 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 Ms Morgan and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

Consideration

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 January 2024. The delay is the period commencing immediately after that time until 1 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  1. 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]

  1. Ms Morgan 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 Ms Morgan has not provided any reason for any part of the delay.[5]

  1. It is conceivable that Ms Morgan’s mental health issues could have provided a satisfactory explanation for the delay. However, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[6] Despite being provided with several opportunities via correspondence and directions from the Commission, Ms Morgan has provided no medical evidence to verify she has been suffering from any medical condition or has attended a doctor since being dismissed on 14 December 2023.

  1. Given the lack of medical evidence, I cannot find that Ms Morgan has a satisfactory explanation for the delay.

  1. The only other reason identified by Ms Morgan is that she didn’t think she had any right to contest the dismissal. It is well established that ignorance is not a satisfactory explanation for filing an application late.[7]

  1. I find this factor weighs strongly against the granting of an extension of time.

Did Ms Morgan first become aware of the dismissal after it had taken effect?

  1. There is no dispute that Ms Morgan first became aware of her dismissal on the date it took effect, 14 December 2023. I consider this to be a neutral factor.

What action was taken by Ms Morgan to dispute the dismissal?

  1. There is no evidence Ms Morgan took any action to dispute the dismissal until the unfair dismissal application was filed. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. Total Fusion did not argue it would suffer any particular prejudice if an extension of time is granted. I consider this to be a neutral factor. 

What are the merits of the application?

  1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[8]

  1. It appears from the employment contract filed by Total Fusion that Ms Morgan’s casual employment commenced on 28 June 2023. If that is right, Ms Morgan will not be protected from unfair dismissal because she has not completed the minimum employment period.[9] There may have been arguments about whether Ms Morgan’s prior service purportedly as an independent contractor should be counted as part of the minimum employment period. However, Ms Morgan did not attend the hearing to make those arguments and filed no evidence in support of her case.

  1. I do not have sufficient evidence to make any initial assessment concerning the complaints Ms Morgan has raised about her dismissal.

  1. Given it appears Ms Morgan has not completed the minimum employment period, I consider the merits of the application weigh against the granting of an extension of time. 

Fairness as between Ms Morgan and other persons in a similar position

  1. Neither party advanced a persuasive submission regarding the applicability of this factor. I consider this to be a neutral factor. 

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[10] Exceptional circumstances may 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, can be considered exceptional.[11] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[12]

  1. Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

  1. Ms Morgan has not provided a satisfactory explanation for the delay and it appears she has not completed the minimum employment period. I am unable to find there are any exceptional circumstances that justify the granting of an extension of time.

  1. Not being satisfied that there are exceptional circumstances, I decline to grant an extension and dismiss the application.

Conclusion

  1. I decline to grant an extension of time for the filing of the application.

  1. The application is dismissed.

COMMISSIONER

Appearances:

Ms Noorzai from Employsure for Total Fusion.

Hearing via video:

2 April 2024.


[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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda) [2018] FWCFB 1643, [38], [67].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[9] As prescribed in s 382(a) of the FW Act.

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].

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