Ma Theresa Pangilinan v The Trustee for the DMAP Trust
[2024] FWC 2835
•11 OCTOBER 2024
| [2024] FWC 2835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ma Theresa Pangilinan
v
The Trustee for The DMAP Trust
(U2024/9670)
| COMMISSIONER SCHNEIDER | PERTH, 11 OCTOBER 2024 |
Unfair dismissal application filed out of time –circumstances exceptional – merit of application weak – application dismissed.
Mrs Ma Theresa Pangilinan (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with The Trustee for The DMAP Trust (the Respondent).
It appears that the application may have been lodged outside of the 21-day period prescribed by the Act. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing of the matter was held before the Commission. At the Hearing, the Applicant gave evidence on her own behalf. Ms Mariane Bornelli (Ms Bornelli), Business Manager, and Mr Kieran Curtis (Mr Curtis), Head Chef, provided evidence on behalf of the Respondent.
Dismissal date
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]
The parties agree that the dismissal took effect on 23 July 2024. It is a matter of record that the application was made on 20 August 2024.
The final day of the 21-day period was therefore 13 August 2024 and ended at midnight on that day.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant Law
Under section 394(3) of the 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:
· the reason for the delay; and
· whether the Applicant first became aware of the dismissal after it had taken effect; and
· any action taken by the Applicant to dispute the dismissal; and
· prejudice to the employer (including prejudice caused by the delay); and
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Discussion of criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 August 2024. The delay is the period commencing immediately after that time until 20 August 2024. However, circumstances arising prior to that delay may be relevant to the reason for the delay.[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]
On 14 February 2024, the Applicant was diagnosed with breast cancer. The Applicant states that, on 15 February 2024, she informed her manager, Mr Curtis, of her diagnosis and treatment plan.
The Applicant commenced a period of personal leave (both paid and unpaid) until the termination of her employment on 23 July 2024.
The Applicant provided several medical reports from treating doctors which confirm her diagnosis and treatment plan. Most notably, a document from Dr Azim Khan (Dr Khan) of the Breast Cancer Research Centre WA, dated 6 June 2024.
This document confirms that the Applicant is unfit for work for the period of 25 April 2024 up to 23 July 2024. This document also confirms the side-effects of the Applicant’s treatment, including; fatigue, nausea, and immune system suppression. The document advises such side effects may impact the ability to fulfil work tasks.
At the Hearing, the Applicant provided a further medical document from Dr Khan, dated 8 October 2024.
The Respondent did not object to the submission of this document.
The document provided further confirms that the Applicant was likely to have been suffering from temporary cognitive impairment following receiving chemotherapy.
Having regard to the above, I find that the reasons put forth by the Applicant would understandably cause delay in lodgment and weigh heavily in favor of a conclusion that there are exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, 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.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any action to dispute their dismissal prior to making the application on 20 August 2024.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The bulk of the Respondent’s submissions on the extension of time issue concern the merits of the application.
The Respondent highlights that the venue that the Applicant had been working at has been sold. Accordingly, the Respondent submits that there is no job available for the Applicant to return to should the matter proceed with success and reinstatement be considered.
The Respondent’s primary operations are the brewing and distribution of beverages. The Respondent confirms that it still has one venue operational at this time, however, at present, there would be no suitable position for the Applicant to return to.
The Respondent notes that, prior to her termination, the Applicant had been on paid and unpaid personal leave due to her breast cancer. The Respondent notes that the Applicant left the workplace on 15 February 2024 and was on paid personal leave until 8 March 2024.
The Respondent confirms that the Applicant was on unpaid personal leave from 9 March 2024 until her termination on 23 July 2024. The Respondent submits that it had a valid reason to terminate the employment relationship as a result of the Applicant’s extended 3-month absence from work.
The Respondent submits that at the time of terminating the employment relationship there was nothing that suggested the Applicant was likely to be fit for work in the foreseeable future.
Upon review of the medical evidence provided, it is evident that the Applicant is unfit to perform the inherent requirements of her previous position with the Respondent. The medical evidence filed in this matter supports the conclusion that the Applicant’s fitness for work is unlikely to change in the short term. It is well established that incapacity to perform the inherent requirements of a position may give rise to a valid reason for the termination of an employment relationship.
I note the Applicant has not filed any substantive submissions in relation to this item of the consideration. However, on the submissions before the Commission as filed by the Respondent, I have formed the view that the likelihood of the matter resolving in a manner that is in any way beneficial to the Applicant is low.
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.
Consideration
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the criteria under the Act.
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.[7] 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.[8]
In light of the diagnosis and treatment the Applicant was undergoing from February 2024 onwards, I am satisfied that there are exceptional circumstances at play in this matter. There is no doubt that this period of time would have been highly stressful and horrible in general for the Applicant.
It is reasonable to conclude that the Applicant was still impacted by the side effects of her treatment following her dismissal and that this had a notable impact on her ability to file within the 21-day time period. Such a conclusion is only further supported by the medical evidence presented by the Applicant at the Hearing on 9 October 2024.
Having regard to all of the matters at section 394(3) of the Act, I am satisfied that there are exceptional circumstances.
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Notwithstanding that I am satisfied that there are exceptional circumstances, I am not satisfied that it is appropriate for me to exercise my discretion to extend the period for the application to be made for the following reasons.
Having considered the submissions of the Respondent in relation to the merit of the application before the Commission and the facts before me regarding any possible remedy if the application were to proceed, I have come to the unfortunate view that the application would, in all probability, either fail at the next stage or result in very limited recourse, if any, to the Applicant in the case of success. Therefore, it is not an efficient use of the parties’ time to continue these proceedings.
From the evidence provided, it is apparent that the Applicant is still receiving on-going medical treatment related to her breast cancer. I do not feel it is appropriate for me to exercise my discretion to grant and extension of time and provide the Applicant with false hope when, on assessment of all that is before me, there is limited scope for success or remedy down the line. This is especially so in the circumstances where the Applicant is already in an unenviable position in life and undergoing vital yet taxing treatment. The process of pursuing an unfair dismissal remedy in the Commission is not an enjoyable pursuit, and granting an extension in such circumstances would merely deepen the existing challenges the Applicant is currently facing. It is my hope that the Applicant can understand the reasons for this conclusion and wish her nothing but the greatest success in the face of her recent diagnosis.
Conclusion
Despite there being exceptional circumstances, I have determined not to exercise discretion and extend the timeframe in which to apply. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[9]
COMMISSIONER
Appearances:
M T Pangilinan, Applicant.
M Bornelli on behalf of the Respondent.
Hearing details:
2024.
Perth:
October 9.
[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] Ibid; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] [2018] FWCFB 901, [39].
[6] Ibid, [40].
[7] [2011] FWAFB 975, [13].
[8] Ibid.
[9] [PR780156].
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