Lynda Walton v Christadelphian Aged Care
[2023] FWC 654
•21 MARCH 2023
| [2023] FWC 654 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lynda Walton
v
Christadelphian Aged Care
(C2023/454)
| DEPUTY PRESIDENT DEAN | CANBERRA, 21 MARCH 2023 |
Application to deal with contraventions involving dismissal – extension of time – no extension granted.
On 27 January 2023, Ms Lynda Walton made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving the dismissal from her employment with Christadelphian Aged Care (CAC).
Ms Walton was employed by CAC from 21 June 2022 until she was terminated on 19 December 2022 by reason of redundancy. Ms Walton’s general protections application was made some 18 days outside the 21 day period prescribed by the Act and can only proceed if the Commission allows a further period in accordance with s.366(2) of the Act.
The application was listed for hearing by telephone on 20 March 2023 to consider the extension of time issue. Ms Walton appeared and gave evidence on her own behalf. CAC was represented with permission by Ms Megan Bowe of Dunn & Bowe Lawyers, and called evidence from Ms Kristle van Biljon and Ms Kate Barter.
The Commission may exercise its discretion to allow a further period for a general protections 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. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
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.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] 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.”
The onus of establishing exceptional circumstances lies with Ms Walton.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
On the evidence before me, I am not satisfied that Ms Walton has provided satisfactory explanation for her failure to file her application within the statutory time period.
Ms Walton’s reasons for the delay included that she was in a state of panic and was not sleeping. She said she suffered from PTSD and had been off work since May 2022. As a result, she said she did not have the emotional strength to make her application within time.
Ms Walton did not produce any medical evidence in support of her submission that her ill health, within the relevant time period, prevented her from filing her application within time.
CAC’s evidence supports a finding that:
a)Ms Walton was certified fit to perform certain duties on reduced hours of employment from October 2022;
b)She had been re-elected to the Board of Directors of Mental Health Carers NSW in October 2022;
c)Between 19 and 29 December 2022, she exchanged approximately 19 text messages and 4 emails with one of CAC’s representatives in relation to the return of CAC’s property;
d)She travelled ‘out of town’ between 21 and 24 December 2022, and visited her sister in Queensland on or about 27 December 2022;
e)Between 19 December 2022 and 27 January 2023, she was active on Linkedin, posting various comments and interacting with other social media posts; and
f)By her own admission, she was able to rely on friends to assist her with tasks.
CAC submitted that this demonstrated Ms Walton had capacity to file her application within time.
Given CAC’s evidence, and the lack of medical evidence supporting Ms Walton’s submissions as to ill health, I am satisfied that she was not incapacitated to such an extent that she was unable to make her application within time.
This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
Ms Walton confirmed she did not take any steps to contest her dismissal until the filing of this application.
This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that CAC would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time for Ms Walton to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
Ms Walton contends that her dismissal was not a genuine redundancy. She submitted that the redundancy was not appropriate because CAC needed someone to perform her role. She further submitted that her redundancy was unfair because it occurred close to Christmas, and CAC threatened to call the police when the parties were unable to agree on arrangements for the return of company property, including a motor vehicle. She said CAC disregarded her mental health issues.
CAC denies the allegations and submits that her dismissal followed the sale of three residential aged care facilities it operated in or about June 2022. The sale reduced CAC’s ‘bed licence’ by 54% and it no longer required the position held by Ms Walton to be performed by anyone.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] 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 between 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.’[6]
Neither party made submissions on this criterion and I therefore find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, 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 Walton are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
L Walton on her own behalf.
M Bowe of Dunn & Bowe Lawyers for Christadelphian Aged Care.
Hearing details:
2023.
By telephone:
March 20.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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