Melanie Ping v Biripi Aged Care Service
[2023] FWC 3060
•21 NOVEMBER 2023
| [2023] FWC 3060 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melanie Ping
v
Biripi Aged Care Service
(U2023/9630)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 NOVEMBER 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Melanie Ping (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Biripi Aboriginal Corporation Medical Centre (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
The Applicant clarified in her oral evidence that the termination of her employment with the Respondent took effect on Wednesday, 23 August 2023 when she was provided with a letter of termination. The Applicant lodged her unfair dismissal application in the Commission on 4 October 2023.
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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 September 2023. The application was therefore filed 21 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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]
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.
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.
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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of 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.[5]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3
Relevant facts
In her unfair dismissal application, the Applicant gave the following explanation for her delay:
“Due to the stress of being terminated I made an error and forgot to press send on my application. I’m therefore kindly asking that this be dealt with even though it is outside the 21 day period.”
The Applicant provided the Commission with a letter from her doctor dated 13 November 2023. It states:
“This is to certify that Ms Melanie Ping … was seen by myself at the Health Hub Taree Practice on 31/08/2023.
At the time she stated that she had recently been discharged from employment and had been experiencing significant mental stress in the preceding 1-2 weeks. She reported significant Mental stress at the time.
Unfortunately I did not see Ms Melanie Ping after this visit and can not comment further on her mental and physical health subsequent to the initial visit.”
In her oral evidence, the Applicant explained that:
she commenced the preparation of her unfair dismissal application on 24 August 2023 with the assistance of a friend. She also electronically signed and dated the application on that day, but did not lodge it in the Commission because she says that it was not completed at that time;
she logged in and worked on her unfair dismissal application “little bit by little bit” after her dismissal;
she attended a meeting with the Respondent on 15 September 2023 to hopefully resolve her concern that she had been unfairly dismissed. The Applicant attended this meeting with her father (who also works for the Respondent) and a support person. At the meeting the Applicant made a number of points to Ms Angela Stewart, CEO of the Respondent. Ms Stewart informed the Applicant that the Respondent had investigated the matter and had evidence against her. Ms Stewart encouraged the Applicant to file an unfair dismissal application if she was unhappy with the outcome. The Applicant believes that she told Ms Stewart that her unfair dismissal application was underway, although she became unsure about that when it was suggested to her that she told Ms Stewart at the meeting on 15 September 2023 that she had submitted her unfair dismissal application;
she attended an appointment with her general practitioner on 31 August 2023. She told her general practitioner that she was stressed and not sleeping well. The Applicant’s general practitioner prescribed some tablets to help her sleep but did not prescribe any other medication for her. This was the only occasion on which the Applicant saw her general practitioner in the period between her dismissal and lodging her unfair dismissal application in the Commission;
she had high levels of stress and anxiety following her dismissal. As a result, she only left her house to take her children to and from school and relied on assistance from friends and family to buy groceries;
she communicated with Centrelink on some occasions following her dismissal to report her hours of work, but did not do so on other occasions; and
she started applying for jobs in late September 2023 and commenced work with a new employer on 4 October 2023.
Ms Stewart gave evidence that at the meeting on 15 September 2023 she strongly encouraged the Applicant to lodge an unfair dismissal application if she was unhappy with the outcome. Ms Stewart also gave evidence that the Applicant told her at the meeting on 15 September 2023 that she had submitted an unfair dismissal application.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. I accept that the Applicant suffered from elevated levels of stress and anxiety in the period following her dismissal. However, these conditions did not prevent the Applicant from at least commencing the preparation of her unfair dismissal application on 24 August 2023, attending a meeting with the Respondent on 15 September 2023 to raise her concerns, and applying for jobs in late September 2023. The Applicant’s doctor did not express any opinion that the Applicant was incapable, by reason of any deterioration in the Applicant’s mental health, of preparing or lodging an unfair dismissal application prior to 4 October 2023. This is consistent with the Applicant’s evidence that the only medication prescribed by her doctor on 31 August 2023 was tablets to assist her to sleep. Of further relevance is the undisputed fact that Ms Stewart encouraged the Applicant, on 15 September 2023, to lodge an unfair dismissal application in the Commission if she was unhappy with the outcome. Notwithstanding this encouragement, the Applicant did not lodge her unfair dismissal application for a further 19 days. Although I have sympathy for the Applicant’s circumstances, I do not consider that she has provided an acceptable or reasonable explanation for the 21 day delay in lodging her unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 4 October 2023 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant says that on 23 August 2023 she was provided with a letter which informed her that she was being dismissed with immediate effect.
I am therefore satisfied that the Applicant became aware of her dismissal at the time it took effect and not afterwards. Accordingly, this is a neutral consideration.
Action taken to dispute the dismissal
The Applicant took action to dispute her dismissal by attending a meeting with the Respondent on 15 September 2023 to challenge the fairness of the decision to terminate her employment. This action on the Applicant’s part to dispute her dismissal weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Respondent dismissed the Applicant because it contends that she engaged in ‘lateral violence’ in the workplace by spreading rumours or misinformation to staff and Aged Care clients. The Respondent says that it undertook an investigation into these allegations and gave the Applicant a chance to respond to them before making a decision to terminate the Applicant’s casual employment with the Respondent.
The Applicant says that a manager lodged a complaint against her, which accused her of talking about his extra marital affairs and stalking his wife at her workplace. The Applicant says that she has never met the manager’s wife, nor has she stalked her or confronted her in relation to the manager’s extra marital affair. The Applicant contends that the allegations against her are untrue and unfounded, and there is no evidence to suggest that the Applicant did what is alleged against her. When asked by the Respondent about the manager and his alleged relationship with a staff member, the Applicant says that she answered honestly and informed the Respondent that inappropriate behaviour was observed between the manager and the staff member.
The Applicant says that her dismissal has caused her significant physical and financial distress.
It is not possible at this interlocutory stage of the proceedings to make an assessment as to the likelihood that the Applicant would succeed in her claim that she was unfairly dismissed. The outcome would depend on an assessment of the credibility of the Applicant’s evidence on the issues in dispute, together with the credibility of other witnesses called to give evidence in a final hearing. Having regard to all the circumstances, I consider the merits of the application to be a neutral consideration in my assessment as to whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took steps to challenge her dismissal, the balance of the matters under s 394(3) are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms M Ping, on behalf of herself
Ms A Stewart, for the Respondent
Hearing details:
2023.
Newcastle (by telephone):
15 November.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
Printed by authority of the Commonwealth Government Printer
<PR768509>
0
0
0