Leanne Holt v AHPRA
[2022] FWC 3168
•30 NOVEMBER 2022
| [2022] FWC 3168 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leanne Holt
v
AHPRA
(U2022/8050)
| COMMISSIONER SCHNEIDER | PERTH, 30 NOVEMBER 2022 |
Application for an unfair dismissal remedy
Mrs Leanne Holt (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that she had been unfairly dismissed from her employment with Australian Health Practitioner Regulation Agency (AHPRA) (the Respondent).
From the information provided by the parties in the application and response forms, it appears the application was lodged outside of the 21-day time period allowed for such an application.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
The Applicant filed submissions in the Commission on 15 September 2022. The Respondent filed submissions in the Commission on 21 September 2022. A Hearing of the matter took place on 27 September 2022.
Relevant law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“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.
…(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)…”
As the Full Bench has stated in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(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.”
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] 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.[4]
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.[5] An applicant 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 the applicant has not provided any reason for any part of the delay.[6]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration
The Applicant’s dismissal took effect on 20 May 2022. This application was lodged on 2 August 2022. Neither of these facts are in dispute. The final day of the 21-day period was therefore 10 June 2022 and ended at midnight on that day. The Application was lodged on 2 August 2022, some 74 days after the dismissal and 54 days after the end of the 21-day period.
Accordingly, the Commission must consider whether exceptional circumstances exist and, if there are exceptional circumstances, if discretion should be exercised to allow an extension of the 21-day period.
Reason for the delay
The delay is the period commencing immediately after the end of the 21-day period up to the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
The Applicant submitted the following reasons for delay:
· The Applicant was not aware of the 21-day time limit.
· The Applicant was in shock following her termination.
· The Applicant’s mental health has been affected by the termination, the financial issues faced by her family, and the general stressful predicament of her personal circumstances.
· The Applicant is the primary care giver to her husband and two children.
· The Applicant’s husband was injured in the workplace in September 2020.
· The Applicant’s husband has been receiving workers’ compensation payments since late 2020.
· The Applicant’s husband’s payments ceased around the same time as the Applicant’s termination.
· The Applicant had to attend a variety of medical, legal, and community services appointments following the end of her husband’s payments to assist him pursue alternative options.
· The Applicant’s children both have neurodevelopmental conditions.
The Respondent submits the following in response to the reasons advanced by the Applicant:
·The circumstances outlined by the Applicant do not individually or collectively constitute exceptional circumstances.
·The Commission has previously rejected ignorance of the time limit, mental health decline, caring responsibilities, and financial stress as justifying an extension being granted in similar circumstances.
·The Respondent submitted that, whilst medical issues had in some cases justified an extension of time, the Applicant had not provided any evidence to properly support her reasons and the impact on the delay.
·The Respondent agrees that the issues being faced by the Applicant and her family are significant and would have placed great strain on the Applicant. However, the Respondent submits that, for the purposes of the Act, the reasons advanced do not hold enough weight to favour an extension being granted.
The Applicant provided evidence on her own behalf and outlined the issues that were being faced by her family prior to and following the termination of her employment.
The Applicant explained her role in assisting with her husband’s workers’ compensation legal claims.
The Applicant gave evidence that she is required to assist in transporting her husband to around 1 to 3 medical appointments each week, as well as rehabilitation sessions. Both the Applicant’s daughters require frequent medical appointments and support as well.
The Applicant has also been completing significant work on the family home, which the family are preparing to sell.
The Applicant explained that the current hardship being experienced by her family meant that she did not have the time to research a potential remedy for her termination until after the 21-day period had passed.
The Applicant gave evidence that she had brief conversations with a family friend who is a lawyer, however, did not have the benefit of formal legal advice or support.
The Applicant did not provide documentation supporting the reasons for delay. At the conclusion of the Hearing, the Applicant was afforded additional time to provide documentary evidence in support of her evidence. Namely, it was requested that the Applicant provide the Commission with copies of medical bookings or any such further information in support of her claim which explained the significant delay in her filing her application. The Applicant did not provide any further information.
I am not convinced that the Applicant’s ignorance of the timeframe, nor the shock and distress arising from her termination are valid reasons for delay.
As highlighted, ignorance of the timeframe for lodgment has been rejected as a valid reason for delay.[9] Shock and distress over the termination of one’s employment is not uncommon, such a reaction is unfortunate but expected.[10]
Having regard to the Applicant’s caring responsibilities, especially in the context of her termination and her husband’s payments ceasing, I accept this would contribute to some length of delay.
Whether the Applicant became aware of the dismissal after it took effect
I am satisfied that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
Action taken to dispute the dismissal
I am satisfied that the Applicant did not take any actions to dispute their dismissal prior to making the application on 2 August 2022.
Prejudice to the employer
I am satisfied there would be no prejudice to the Respondent if an extension of time were to be granted.
Merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
In summary, the Applicant was terminated as a result of her not being vaccinated against COVID-19 in accordance with the Respondent’s policy. The Applicant argues that she should have been allowed to complete her role from home.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)”[11] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Exceptional circumstances
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being the current significant hardship faced by the Applicant and the important role that she is playing in supporting her family during this current hardship.
The Applicant has clearly suffered personal hardship and my following determination should not be interpreted as minimizing her struggles.
As previously stated, the Applicant’s caring responsibilities and timing of her termination coinciding with the cessation of her husband’s payments would understandably hinder her ability to address her termination. However, the application was filed 54 days out of time. This is not an insignificant period of time.
The Applicant understandably had other priorities at the time of her termination and did not attempt to pursue any action against her former employer until a considerable length of time after her dismissal.
On the material before me, and in consideration of the circumstances and all the criteria specified in the Act, I am not satisfied there are exceptional circumstances, nor would all the circumstances excuse such length of delay.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[12]
COMMISSIONER
Appearances:
L Holt, Applicant.
A Crocker, Counsel for the Respondent.
Hearing details:
2022.
Perth (by video):
September 27.
[1] [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] [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; [2015] FWCFB 1877.
[3] [2011] FWAFB 975, at [13].
[4] [2011] FWAFB 975, at [13].
[5] [2018] FWCFB 901, [39].
[6] [2018] FWCFB 901, [40].
[7] [2018] FWCFB 901, [17].
[8] [2015] FWCFB 287, [12].
[9] [2011] FWAFB 975, [14].
[10] [2021] FWC 4694, [51].
[11] [2011] FWAFB 975, [36].
[12] [PR748451].
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