Marilyn Kay Oliver v Villa Maria Catholic Homes Inc

[2022] FWC 676

[2022] FWC 676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marilyn Kay Oliver
v

Villa Maria Catholic Homes Inc

(U2022/1865)

DEPUTY PRESIDENT MASSON MELBOURNE, 28 MARCH 2022

Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – extension of time granted.

Introduction

1. This decision concerns an application made by Ms Marilyn Kay Oliver (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Villa Maria Catholic Homes Inc (the Respondent) from 11 October 2018 as a Lifestyle Assistant. Her employment with the Respondent was terminated with effect from 29 December 2021.

1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 29 December 2021 the period of 21 days ended at midnight on 19 January 2022.

1. The Applicant lodged her unfair dismissal application by post, which was received by the Commission on 11 February 2022, 22 days outside the 21-day timeframe. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act. The Respondent opposes this request.

1. The matter was listed for Conference/Hearing on 25 March 2022. The Applicant was directed to file relevant material in relation to the jurisdictional issue by close of business on 14 March 2022. On 16 March 2022 the Applicant’s Representative, Mr Greg Merrett, advised my Chambers that the Applicant would not be filing any further material and wished to rely on the contents of the Form F2 application filed. The Respondent filed its reply on 21 March 2022 in accordance with the directions issued.

1. At the Conference/Hearing on 25 February 2022 I determined to conduct the matter by way of a conference pursuant to s.398 of the Act. The Applicant appeared on her own behalf and gave evidence while Ms Michaela Moloney of K&L Gates was granted permission to appear on behalf of the Respondent pursuant to s.596(2) of the Act.

Background

1. The Respondent is a not-for-profit organisation that provides at-home care, residential aged care, disability services and other services to the community.

1. The Applicant commenced employment with the Respondent on 11 October 2018 and at the time of her dismissal was engaged in the role of Lifestyle Assistant. In that role the Applicant was required to hold an NDIS Worker Screening Check (NDIS Check), a point the Applicant readily concedes.

1. The Applicant says that she provided her completed NDIS Check form to her manager on 31 August 2021 for forwarding to NDIS. She also states that she subsequently followed up with the NDIS on multiple occasions to establish the progress of her application. The Respondent states that it has no record of the Applicant having provided evidence to it that she had submitted her NDIS Check form.

1. On or about 1 December 2021, the Applicant’s husband was diagnosed with a terminal illness and was given a matter of weeks to live. Shortly after the diagnosis the Applicant accompanied her husband on a trip to see relatives in northern Victoria in the period from 3-7 December 2021.

1. Following her husband’s terminal illness diagnosis, and apart from her trip to northern Victoria in the period from 3-7 December 2021, the Applicant continued to perform her normal duties until 16 December 2021 at which point, she was prevented from attending work due to having nor provided her NDIS Check. The Applicant was the sole carer for her husband during the period prior to and after her dismissal.

1. On 17 December 2021the Respondent wrote to the Applicant regarding the above-referred NDIS Check requirement and advised that she was required to provide evidence of her having received her NDIS Check or having made an application by 20 December 2021.

1. On 29 December 2021, the Applicant was notified of her dismissal which was due to the Applicant having failed to comply with the requirement to provide a current NDIS Check.

1. On 28 January 2022, the Applicant wrote to the Respondent disputing her dismissal, citing inaccuracies as well as challenging the fairness of and reason for her dismissal.

1. The Applicant’s husband, to whom she had been married for 30 years, passed away on 2 March 2022.

Consideration

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ 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.[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.[2]

1. The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

(b)   whether the person first became aware of the dismissal after it had taken effect;

(c)   any action taken by the person to dispute the dismissal;

(d)   prejudice to the employer (including prejudice caused by the delay);

(e)   the merits of the application; and

(f)    fairness as between the person and other persons in a similar position.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 19 January 2022. The delay is the period commencing immediately after that time until 11 February 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

1. 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.[4] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

1. The Applicant’s husband was diagnosed with terminal cancer on 1 December 2021 and was advised that his life expectancy would be a matter of only weeks. From the time of his diagnosis the Applicant continued to undertake her normal duties with the Respondent until 16 December 2022, whilst also being the sole carer to her husband at their private residence. While her husband also received treatment as an inpatient at Barwon Health from time to time, his palliative care was delivered at home.

1. The Applicant states that in the period following her dismissal she was focused on providing care to her husband, which included arranging medical appointments and treatment as well as facilitating visits of family members to see her husband. She says her husband’s declining health and increasing care needs were her only focus and that her dismissal by the Respondent was a secondary issue.

1. I note that the Applicant wrote to the Respondent on 28 January 2022 challenging her dismissal and says she prepared the correspondence with the assistance of a family friend. Beyond stating she was busy in that period; no explanation was offered by the Applicant as to how she was able to communicate with the Respondent on that date but was unable to file her unfair dismissal application at the same time or for a further period of several days after 28 January 2022.

1. It is said by the Respondent that the Applicant demonstrated by her correspondence to the Respondent on 28 January 2022 that at least at that point she could file an application for an unfair dismissal remedy. That of course was, as I have stated above, with the assistance of a family friend. I also note that the unfair dismissal application was dated 3 February 2022 although it was not received by the Commission until 11 February 2022. The explanation of the delay beyond 28 January 2022 is, in the circumstances of the 28 January 2022 correspondence, less compelling than the period preceding that correspondence.

1. Notwithstanding the correspondence sent by the Applicant to the Respondent on 28 January 2021, I accept that being the sole carer of her terminally ill husband undoubtedly contributed to the delay in the Applicant lodging her application. While no medical evidence was provided, I accept the Applicant’s evidence that in the wake of her dismissal, her primary if not sole focus was on providing care to her terminally ill husband of 30 years. This of course was in addition to the Applicant managing her own anxiety and grief at the imminent loss of her husband. As has also been noted above, the Applicant’s husband sadly passed away on 6 March 2021.

1. Having regard to the foregoing, I am satisfied that the Applicant has provided an acceptable reason for the delay in filing her unfair dismissal application. This weighs strongly in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant claims in her Form F2 that she was notified of her dismissal verbally on 16 December 2021 and subsequently received a confirmation letter on 29 December 2021. The Respondent contends that the Applicant was informed of her dismissal in writing on 29 December 2021 and that the prior correspondence dealt with the requirement of the Applicant to provide evidence of her NDIS Check.

1. While there is some difference between the parties in relation to the nature of the communication to the Applicant on or about 16 December 2021, any doubt as the Applicant’s employment status was removed on 29 December 2021. I find that the Applicant was aware that her dismissal took effect on 29 December 2021 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant states that she forwarded a letter to the Respondent on 28 January 2022 disputing the accuracy and challenging the fairness of the reason for her dismissal. The letter was prepared with the assistance of a family friend. The letter was sent after her dismissal took effect on 29 December 2021 and after the 21-day timeframe prescribed by the Act to file her application had lapsed on 19 January 2022. It is not apparent that the Applicant took any further action to contest her dismissal after it took effect, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. The application was filed 22 days outside of the 21-day period. While some prejudice may arguably accrue to the Respondent if an extension of time were to be granted, the delay in the filing of the application was a relatively brief period. In the circumstances I regard this factor as a neutral consideration.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time.

1. The Applicant submits that her dismissal for failure to provide an approved NDIS Check by 20 December 2020 was unfair for several reasons. She says she forwarded her completed application to the Respondent’s Residential Services Manager on 31 August 2021 for forwarding to NDIS and made several attempts to subsequently contact the NDIS via phone to establish the progress of her application. She also says she produced her completed application upon request to the Respondent’s Residential Services Manager on 16 December when reminded that she was required to obtain an NDIS Check by 14 December 2021.

1. The Respondent contends that the Applicant was dismissed due to her inability to fulfil the inherent requirements of her role. That is, she did not hold an NDIS Check, and had not provided evidence that an application for such a check had in fact been submitted by 20 December 2021. The Respondent says the Applicant was advised and was aware of the requirement to obtain a valid NDIS Check by 20 December 2021, and it was not advised of any action the Applicant had taken to follow up with the NDIS regarding the status of her application.  

1. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration. 

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

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.  

1. 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

1. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances in this case when the various circumstances are considered. The reason for the delay, that being the terminal illness of the Applicant’s husband, was compelling in the circumstances of this case and outweighed other factors.

1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[6] I am satisfied that it is appropriate to extend the period for the application to be made to 11 February 2022.

1. Directions will be shortly issued to the parties in relation to determination of the application for an unfair dismissal remedy by the Applicant.

DEPUTY PRESIDENT

Appearances:
M Oliver, Applicant.
M Moloney for the Respondent.

Hearing details:

2022.

Melbourne (by Microsoft Teams):
March 25.

Printed by authority of the Commonwealth Government Printer

<PR739726>

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[5] Ibid at [40].

[6] Fair Work Act 2009 (Cth) s.577.

Printed by authority of the Commonwealth Government Printer

<PR739726>