Maria-Pia Tunga v L'Arche Perth Inc
[2023] FWC 1646
•11 JULY 2023
| [2023] FWC 1646 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maria-Pia Tunga
v
L’Arche Perth Inc
(U2023/5187)
| COMMISSIONER LIM | PERTH, 11 JULY 2023 |
Application for an unfair dismissal remedy
Introduction
This decision concerns Ms Maria-Pia Tunga’s (Applicant) application for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
The Applicant’s employment with L’Arche Perth Inc (Respondent) commenced on 19 December 2022 and concluded on 11 May 2023. The Application was lodged with the Fair Work Commission (Commission) on 12 June 2023.
It is noted that with the consent of the parties, I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act.
Section 394(2) of the FW Act provides that such an application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.
As the Applicant was terminated on 11 May 2023, the period of 21 days in this case ended at midnight on 1 June 2023. It was not contested that the Application was filed 11 days after the 21-day limit.
The Applicant requests the Commission grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, the Application is dismissed.
The detailed reasons for my decision are outlined below.
Observations on the evidence
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was conducted on 6 July 2023 via MS Teams to determine the extension of time matter. The Applicant provided a written summary of her position and gave sworn evidence. The Respondent also provided a written summary of their position and Ms Bell, the House Coordinator for the Respondent, gave sworn evidence.
I found that the Applicant gave her evidence openly and honestly. To the extent that she made statements about the reasonableness or otherwise of her dismissal, I have treated these as submissions.
I found that Ms Bell also gave her evidence openly and honestly.
It was clear from the evidence from both parties that both the Applicant and Ms Bell are both dedicated to caring for vulnerable people, and that they are both passionate about the work that they do.
Events associated with the dismissal and leading to lodgement of this application
The evidence from both parties largely concerned the events that led up to the Applicant’s dismissal along with the reason for dismissal.
The Respondent is a faith-based and not-for-profit organisation that provides support to intellectually and physically disabled people. The Respondent is the Perth branch of an international organisation, with branches in other Australian states. The Respondent only operates one premise in Western Australia, which is a house in Dianella that provides accommodation and in-house support to residents with disability (Dianella House). The Respondent refers to the residents as Core Members and the support workers as Assistants.
The Applicant commenced employment as an Assistant on 19 December 2022. The Applicant was employed on a casual basis, where she regularly worked two shifts a fortnight, with additional shifts on an operational needs’ basis.
It was Ms Bell’s evidence that early in the Applicant’s employment with the Respondent, there were personality clashes between the Applicant and other employees. These personality clashes led to increasing tensions in the Dianella House over several months. The decision to dismiss the Applicant was made after a Core Member went to Ms Bell to express their discomfort with the Applicant. The Core Member informed Ms Bell that they would leave the Dianella House if the Respondent continued to employ the Applicant.
The Applicant in her evidence disputed the cause of the personality clashes and tension with other staff, as well as the reason for her dismissal. The Applicant’s evidence was that the Respondent ended her employment so that they could replace her with different Assistants.
It was not disputed between the parties that Ms Bell met with the Applicant on 11 May and explained to her that she was being dismissed, effective immediately. The Applicant subsequently lodged the Application on 12 June 2023.
The Applicant gave the following reasons why her application had been lodged late:
a)she did not know about the 21-day limit;
b)Ms Bell had promised to help her transition into another role; and
c)her mental health had been affected by the dismissal.
Should an extension of time be granted?
Under s 394(2) and (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. It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[2]
When determining whether there are exceptional circumstances, s 394(3) requires the Commission to take 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.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
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 1 June 2023. The delay is the period commencing immediately after that time until 12 June 2023, although 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]
In the Applicant’s written materials, she submitted that Ms Bell had promised to help her transition into another role. During her sworn evidence, the Applicant clarified that Ms Bell told the Applicant she would help the Applicant find a job outside of the Respondent’s business.
Ms Bell’s evidence was that on 11 May 2023, she told the Applicant that she would be a reference for her for future employers. I find that Ms Bell’s evidence on this point is to be preferred to the extent that it conflicts with the Applicant. However, I am more inclined to find that the Applicant misinterpreted Ms Bell’s words, and perhaps placed more weight on them than she should have.
The Applicant submitted that she did not know about the 21-day time limit for lodging unfair dismissals. The Applicant further gave evidence that after she was terminated, she suffered from high levels of stress and anxiety. Her evidence was that it had taken at least two days for the dismissal to sink in and that she had sought medical treatment due to her distress. When giving her evidence, the Applicant was asked how this factor had prevented her from lodging the Application on time but did not provide further particulars.
I find that the reason for the delay was a combination of the Applicant’s mental health and her lack of awareness about the statutory time limit.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[7]
It is also well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[8]
I find that the Applicant’s personal circumstances were genuine and provide some of the context for the steps taken to consider making the application. However, based on the evidence provided, I am not satisfied that her personal circumstances, when considered as a whole and in context, are such that the Applicant was unable to make reasonable inquiries and lodge the application on time.
Accordingly, I consider that the Applicant has not provided a satisfactory explanation for most of the period of the delay in making the unfair dismissal.
Whether the person first became aware of the dismissal after it had taken effect.
During the hearing, the Applicant’s evidence was that she understood what happened during the meeting on 11 May 2023 and that she had been dismissed on that day. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not provide any evidence of action taken to dispute the dismissal. This factor is not conducive to a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Neither side advanced arguments on this point. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[9] Further, the primary consideration is whether the Applicant has an arguable case.[10]
In the Applicant’s Form F2 and confirmed during her sworn evidence, she commenced employment on 19 December 2022 and was dismissed on 11 May 2023. During her evidence, I asked the Applicant if she accepted that this period of employment is less than six months. The Applicant agreed that it is.
Section 382 of the Act provides that a person is protected from unfair dismissal at a time if:
a)they have been employed for the minimum employment period; and
b)they are either covered by a modern award, an enterprise agreement, or in the absence of coverage by a modern award or enterprise agreement, earn less than the high income threshold.
Section 383 of the Act provides that the minimum employment period is one year for a small business employer and six months for employers that are not small business employers.
The Applicant has not completed the minimum employment period required under the Act, and accordingly, she is not protected from unfair dismissal. This is a significant factor against finding exceptional circumstances.
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.
Conclusion
I have found that the considerations in s 394(3) of the Act do not favour a finding of exceptional circumstances, or in some cases are, in effect, of neutral significance in this matter.
Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances. The merits of the application were given significant weight in my decision. As the Applicant has not completed the statutory minimum employment period, she does not have an arguable case and thus her application is without merit.
As the Application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the Application and an Order[11] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
M Tunga, Applicant
S Bell for the Respondent
Hearing details:
2023.
Perth (via Microsoft Teams):
6 July 2023
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[8] Nulty v Blue Star Group [2011] FWAFB 975 and Miller v Allianz Insurance Australia [2016] FWCFB 5472.
[9] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[10] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
[11] PR764011
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