Lisa Kerr v Victorian Aboriginal Child Care Agency Co op Ltd

[2023] FWC 2367

[2023] FWC 2367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lisa Kerr
v

Victorian Aboriginal Child Care Agency Co op Ltd

(C2023/4420)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 20 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – application filed outside 21-day period - exceptional circumstances not found – application dismissed. 

Introduction 

1. Ms Kerr has made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with contraventions involving dismissal. She contends that she was dismissed by the Respondent in contravention of sections 340, 343, 344, 346, 348 and 351 of the FW Act.

1. Section 366 of the FW Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

1. Ms Kerr’s application was made on 24 July 2023 and her application form states that the dismissal took effect on 5 January 2021. The application was therefore filed 909 days or almost two and a half years after the 21-day time limit.  

1. This decision deals with the question of whether exceptional circumstances exist warranting an additional period of time to make the application. 

1. The issue was dealt with at a hearing on 14 September 2023, at which the Applicant gave evidence along with witness statements provided by Ms Mira Kresoja and Mr Jordan Kerr. None of the Applicant’s witnesses were required for cross-examination. 

Factual context 

1. The Applicant commenced employment with the Respondent on 8 February 2018. 

1. The Applicant’s employment was terminated on the ground of serious misconduct concerning sending unauthorised confidential information to recipients external to the Respondent on 10 December 2020.  A letter of termination dated 5 January 2021 was emailed to her. 

1. The Applicant contends that she was exposed to ‘workplace violence’ for nearly 3 years, and that the Respondent took an unreasonable amount of time to attempt to resolve the matters, including by conducting what she contends was a flawed investigation. 

1. The Applicant was absent at the date she was dismissed, having lodged a WorkCover claim on 8 December 2020, which was subsequently accepted.

Extension of time 

1. Additional time can be allowed under section 366(2) of the FW 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]

1. The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]

1. In deciding whether I am satisfied that there are exceptional circumstances, I must consider: 

·   the reason for the delay;

·   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. 

1. In assessing whether there are exceptional circumstances, I am required to consider and give appropriate weight to each of these considerations.   

1. 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.[3]

Relevant factors 

Reason for delay:  

1. The FW 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 of the circumstances must be considered.[4]

1. The delay in this case is very lengthy. The application was filed more than two and a half years after the dismissal took effect. The Applicant’s evidence was that when she received the letter terminating her employment, she contacted her union and was told that because her WorkCover claim had been accepted, she could not make an unfair dismissal claim. At that time, she was very unwell, was unable to leave the house, and was in no frame of mind to do any research or make further enquiries.  

2. The Applicant’s evidence is that she only learnt that she was able to make an application challenging her dismissal around 23 or 24 July 2023 after her WorkCover solicitor suggested she contact JobWatch. The Applicant stated that she was not stable enough to lodge the application at an earlier date as she regularly suffered relapses. She explained that she was helped and supported by her sons and others, and “if I knew that this avenue existed earlier, I would have made the application.” 

3. The Applicant’s evidence about her psychological injury and mental health included being hospitalised twice prior to making the application (and two subsequent occasions after making the application). I include only particularly relevant information concerning the Applicant’s health. The Applicant provided a psychiatric report dated 7 July 2023 from Dr Kolesnikova. Dr Kolesnikova began treating the Applicant in August 2021, prior to which she had been referred for an independent medical examination by a Dr Rathnayake in January 2020 from the Respondent’s workers’ compensation insurer.   

4. Dr Kolesnikova’s report is detailed and refers to the first two admissions to hospital: 16 days in February 2022 and 9 days in May 2022. In short, Dr Kolesnikova’s report: 

   ·   establishes that the Applicant has been suffering significant mental health issues; 

   ·   notes significant improvement in the Applicant’s mental health since at least April 2022; 

   ·   advises that as at 7 July 2023, the Applicant has no capacity to return to work,

   ·   notes that the Applicant is currently enrolled in a tertiary training program; and 

   ·   does not evidence that she is or has been incapable of making an application. 

1. Taking into account all the evidence, including that of Dr Kolesnikova, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application. That is primarily because I am not satisfied there is a reasonable explanation for the entire period of the very long delay in making the application. In light of Dr Kolesnikova’s report, whilst the Applicant had no capacity to return to work with the Respondent, there had been a significant improvement in her mental health for at least a period of time after April 2022. The Applicant was well enough to be able to enrol and participate in a tertiary training program. Without doubting that there have been significant periods when the Applicant was not able to make an application, Dr Kolesnikova’s report evidences that there have also been periods, well before 24 July 2023, when this was not the case. In other words, whilst I am satisfied that there is a reasonable explanation for part of the delay, I am not satisfied there is a reasonable explanation for the entirety of the 909-day delay. This weighs heavily against finding that there are exceptional circumstances. 

Any action taken by the person to dispute the dismissal:  

1. The Applicant does not contend she took any action, other than making the general protections application to dispute the dismissal, as she was not well enough to do so. I consider this to be a neutral consideration in this case.   

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

1. The Respondent submits that the delay in bringing the application has caused it to suffer prejudice because of the long period of the delay, as some of the people involved in the decision to dismiss the Applicant are no longer employed by the Respondent. 

1. I am satisfied that the very long delay in making the application will likely cause prejudice to the Respondent, and this weighs against a finding of exceptional circumstances. 

Merits of the application:

1. The merits of the application are a relevant consideration in determining whether there are exceptional circumstances. A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 

1. The purpose of the consideration here is to make a general assessment, and it is done in the context of largely uncontested and untested allegations and responses. It is therefore not possible to make any final and substantive determinations.  

2. In the application form, the Applicant contends that she was dismissed by the Respondent in contravention of sections 340, 343, 344, 346, 348 and 351 of the FW Act. However, she does not provide any description of the alleged contraventions. The Applicant states in the application that she was terminated after sustaining a psychological injury, that the Respondent did not support her WorkCover claim and ignored “the illegal practices of staff towards me and terminated me whilst I was on sick leave and suffering from a psychological injury.” The Applicant otherwise refers to being dismissed whilst on WorkCover after a flawed investigation involving false allegations. She says that she was not functioning, nor able to make logical decisions, and points to other employees who received payments and had the option of resigning. However, the Applicant’s description does not clearly articulate any of the contraventions of the FW Act she alleges in the application.

3. The Respondent contends that the termination of the Applicant’s employment was for the reasons set out in a letter dated 5 January 2021. That reason was sending an email containing confidential and sensitive information from the Applicant’s work email address to her personal address and then forwarding that to officers within the Department of Health and Human Services. 

4. In the absence of coherent contentions as to how any of the general protections provisions are alleged to have been contravened, I consider that the merits of the case are not strong, and weighs against a finding of exceptional circumstances. 

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

1. This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms Kerr’s claim. However, cases will generally turn on their own facts.  

1. I am not aware of any persons or cases that are relevant to the question of fairness in respect to Ms Kerr’s application. I consider this to be a neutral consideration in the present matter.  

Conclusion 

1. There is no doubt that for an extended period of time Ms Kerr has and continues to suffer significant mental health issues that she contends arise from her employment with the Respondent. However, the question I need to determine is whether exceptional circumstances exist to explain the very long delay in making the application.  The requirement for exceptional circumstances to be found is a very high bar, and the long period of delay without a reasonable explanation weighs heavily against a finding of exceptional circumstances. Weighing the matters I am required to consider individually and collectively, I am not satisfied there are exceptional circumstances.  As a result, no additional time can be allowed for Ms Kerr to make her application.   

2. The application is dismissed. An order to that effect will be issued separately. 

DEPUTY PRESIDENT

Appearances:

The Applicant appearing on her own behalf
R Jordan appearing on behalf of the Respondent

Hearing details:

2023
September 14, 23
Video Hearing.

[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

[3] Ibid.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

Printed by authority of the Commonwealth Government Printer

<PR766236>