Miss Jacinta Skinner v Guardian Community Early Learning Centres Pty Ltd
[2024] FWC 2938
•23 OCTOBER 2024
| [2024] FWC 2938 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Miss Jacinta Skinner
v
Guardian Community Early Learning Centres Pty Ltd
(C2024/6266)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 23 OCTOBER 2024 |
Application alleging contravention of General Protections provisions – extension of time – whether exceptional circumstances exist – application dismissed.
This decision concerns the question of whether there are ‘exceptional circumstances’ such that the applicant in this matter, Ms. Jacinta Skinner (Applicant), should be permitted to file a late application under Part 3-1, General Protections of the Fair Work Act 2009 (Cth) (Act). For the reasons which follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.
Procedural Background
On 3 September 2024 the Applicant filed an application under s.365 of the Act against her previous employer, Guardian Community Early Learning Centres Pty Ltd (Respondent) alleging that her employment had been terminated by the Respondent in breach of Part 3-1 - General Protections – of the Act.
Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). According to the application, the dismissal of the Applicant took effect on 6 March 2024. This date was confirmed by a letter of termination provided by the Applicant.
The Respondent objected to the application on the basis that it was not made within the 21-day time period.
The Applicant acknowledged that the application had not been filed within the 21-day time limit prescribed by s.366 of the Act. As it was not in issue that the termination took effect on 6 March 2024, it is apparent that the present application was out of time by a period of 160 days.
After the filing of the application and the employer response, the parties were directed to file material to deal with the issue of whether the time for the filing of the application should be extended on the basis that there were exceptional circumstances within the meaning of s.366(2) and a date was set for the hearing of the matter. The Applicant did not file any further material beyond what had already been provided in the application.
The Respondent advised prior to the hearing that having regard to the fact that the Applicant had not filed any material in response to the Commission's directions, they were content for the matter to be dealt with on the papers. Notwithstanding that submission and the limited material that had been filed, the matter was listed for hearing on 22 October 2024. The Applicant did not appear. The Applicant’s parents attended on her behalf and made brief oral submissions. The Respondent’s representative also made a brief oral submission. I proposed to take those submissions into account and otherwise determine the matter on the papers.
Legislation
Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:
(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.
I deal with each of the matters referred to in s.366(2) below.
Section 366(2)(a) – reason for the delay
In the application form the Applicant was asked to explain the reason for the delay in filing the application. The reasons provided by the Applicant may be summarised as follows:
(i)The Applicant approached her union about her case, but they took a long time to work on the case and ultimately advised the Applicant not to pursue the matter;
(ii)The Applicant has a learning difficulty which makes reading, writing and searching for and relaying information difficult;
(iii)The Applicant suffered from shock and was diagnosed with depression after losing her job;
(iv)The Applicant contacted the Fair Work Commission telephone number on the ‘deadline page’ but was told advice could not be given about individual circumstances and she needed to seek her own independent advice. When the applicant sought advice, she was directed to contact ‘Fair Work’.
(v)The Applicant was advised on 5 August 2024 by the Queensland Department of Education that the accusations that had resulted in the termination of her employment had not been substantiated given that there was insufficient evidence.
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.[1] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[2] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[3]
In the absence of further and more detailed evidence, I do not consider that the written statement from the Applicant provides a satisfactory explanation for the delay. There was no medical evidence as to the state of the Applicant’s health or when, how or to what extent any health condition had an impact on the applicant’s capacity to file.[4] There was no further information provided as to how any learning difficulties affected the Applicant’s capacity to file an application within the specified time period. There was no evidence about when the Applicant approached her union. There was insufficient evidence to conclude that representative error caused or contributed to the delay. There was limited information about the Applicant contacting the Commission, but it is unclear when this occurred. There was no evidence about who the Applicant sought independent advice from, when this occurred or how it might have contributed to any delay.
It is not clear whether the Applicant consciously decided to postpone the filing of the application until the outcome of the Departmental investigation was known. However, the fact that the Applicant did not receive Departmental advice about the outcome of the investigation until August did not prevent or impede the Applicant from taking steps to file an application. Even allowing for the fact that the Applicant did not receive this advice until on or about 5 August 2024, the application was not made until some 29 days after that advice was provided.
Overall, I do not think the evidence establishes that the reasons given, separately or in combination, adequately explain the delay or any particular part of the delay, in the filing of the application. I am of the view that the reasons provided weigh against a conclusion that there are exceptional circumstances.
Sub sections 366(2)(b), (c) and (e) – Any action taken by the person to dispute the dismissal, prejudice to the employer and fairness as between the person and other persons in a like position
There is no evidence that the Applicant disputed the dismissal or that there was any prejudice to the Respondent, including prejudice caused by the delay. These are neutral considerations in the assessment. Nor was there any evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.
Section 366(2)(d) – Merits of the application
As to the merits of the application, the Applicant has simply asserted a contravention in the application which the Respondent denies. The Applicant says that she was falsely accused of improper behaviour in the workplace and that the Departmental letter recording the outcome of the Department’s inquiries vindicates her assertion that she had not done anything wrong. The Respondent says that while the Department’s inquiries concluded that the Applicant’s conduct had not established a statutory contravention on the part of the Applicant, the Respondent maintained that her conduct was nonetheless unacceptable and in breach of company policy. They said the alleged conduct justified the termination of the Applicant’s employment.
On the limited material available, I am unable to form a view as to the merits of the application. I regard this as a neutral consideration.
Exceptional circumstances - conclusion
In circumstances such as these the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.
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. 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.[5]
Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mrs K. Skinner for the Applicant.
Mr B. Cooper for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2:00pm AEDT on Tuesday, 22 October 2024.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
[2] Ibid at [39].
[3] Stogiannidis op cit at [45].
[4] See for example Higgins v. FQM Australia Nickel Pty Ltd[2023] FWCFB 113.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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