Mrs Mary Okumu v Uniting Agewell Ltd
[2024] FWC 1598
•20 JUNE 2024
| [2024] FWC 1598 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Mary Okumu
v
Uniting Agewell Ltd
(U2024/5504)
| COMMISSIONER LEE | MELBOURNE, 20 JUNE 2024 |
Application for an unfair dismissal remedy-application lodged outside the statutory time frame-consideration of exceptional circumstance-not satisfied exceptional circumstances-application dismissed.
Introduction
Mrs Mary Okumu commenced employment with Uniting Agewell Ltd, on or about 27 May 2019. She was employed in the position of a cleaner.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was that she was unable to undertake the inherent requirements of her role as a result of an injury.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). That application was lodged on 15 May 2024.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant submitted on her Form F2 that the effective date of termination was 20 December 2023. However, this is clearly an error, and it is apparent that the Applicant was not informed of her termination until 22 April 2024. A dismissal does not usually take effect until it is communicated to the employee. The effective date of the dismissal was therefore 22 April 2024. The Respondent agrees with that proposition[1].
Based on the termination date taking effect on 22 April 2024, the application for a remedy should have been lodged by no later than 13 May 2024.
The application was therefore lodged outside of the time prescribed in the Act. The application was made in effect, 2 days after the last date on which it could have been made[2]. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
A hearing was conducted on 14 June 2024 by Microsoft Teams. An Acholi interpreter was engaged to assist the Applicant. The Applicant gave evidence on her own behalf. Evidence was also given by her support person Ms Cecilia Jordan. Ms Gen Toop represented the Respondent with Ms Tracy Semmens.
Before dealing with the evidentiary matters, I will set out the key principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the above matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[3]
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 or unprecedented, nor do they need to be very rare.[4] I must be satisfied that, taking into account section 394(3) of the Act, there are exceptional circumstances.
I now consider these matters in the context of the application.
a) Reason for the delay
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]
The only reason given by the Applicant for the delay is that she did not know she could take action until after she was told by a friend. The Applicant did not, despite having the opportunity to do so, articulate any other reason for the delay at the hearing[6].
Generally speaking, a lack of knowledge as to the statutory requirements for lodging an application for an unfair dismissal remedy is not an acceptable reason[7].
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 22 April 2024 that her employment would end on 22 April 2024[8].
Therefore, the Applicant was aware from that time and had the full benefit of the 21-day period. In the circumstances, that is a matter that is neutral.
c) Action taken by the Applicant to dispute her dismissal
Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence was that there was no other action taken[9].
In the circumstances, that is a matter that I consider neutral in the circumstances of this case.
d) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent made no submissions to the effect that they were prejudiced by the delay. The delay is short, and I’m not satisfied that there is any prejudice.
In the circumstances, that is a matter that is neutral in the instant case.
e) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant injured her wrist at work in November 2020. A WorkCover claim was accepted. The Applicant was provided with modified duties for a substantial period of time. The Applicant underwent further surgeries. In October 2024 the Respondent sought medical advice to understand the Applicant’s incapacity to work. A medical report on 11 January 2024 said that the condition was such that she was unable to perform the inherent requirements of her role in the foreseeable future. The Applicant agreed there was a medical report in these terms[10].
The Respondent submits that there was significant consultation that followed and a decision to dismiss the Applicant due to being unable to perform the inherent requirements of the role was made on 22 April 2024. The Applicant did agree there were two telephone calls made but did not wholly agree with the claimed procedure followed by the Respondent[11]. The Respondent submitted, and the Applicant agreed, that she was represented by her Union throughout the process[12].
The Applicant feels her “case has been dragged out since 2020. [She] felt like no one was listening to [her] (neither workplace nor the workers insurer). [She] was trying to explain [herself], but [she] felt [she] was never the time or the opportunity to have an interpreter to help explain [herself].”[13]
The Applicant submitted that “[she] feels like they have been treating [her] differently from others that has dealt with workplace injury previously/currently since [her] injury. These co-workers have been able to keep their positions with adjustments to accommodate their injury. [She] feels that [she] was not given the same opportunity as [she] feels people saw [her] as a burden. E.g. [she] was asked to help in the laundry. The people working in the laundry told [her] that they have nothing for [her] to do and [she] was made to feel like [she is] an obstacle.”[14]
In summary, the Respondent’s submissions are that there was a long period of modified duties provided to the Applicant, there was medical evidence indicating the Applicant was unable to perform the inherent requirements of here role in the foreseeable future and that a fair process was followed to affect the dismissal. The Applicant does not dispute key elements of those submissions and that would weigh against a finding that the dismissal was unfair. The Applicant does submit that there were procedural deficiencies, including a lack of interpreter services and that she was treated differently to other workers. These factors may weigh in the Applicants’ favour. However, overall, the Applicant’s case is not particularly meritorious.
It seems to me therefore, that her claim is, on preliminary assessment, weak. That is not to suggest that it will fail, but overall, the application lacks significant merit. However, in the circumstances, where the evidence is not at this point tested, I have determined that it is appropriate on fine balance to consider this as a neutral consideration.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like 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.
The Applicant’s submission as to the Respondent on this point is really directed at the merits and are not particularly relevant. Ultimately, 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
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period of time. Weighing all of the matters that I must consider and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period of time.
As I have indicated, I am not satisfied there is an acceptable reason for the delay. This weighs against the Applicant. All the factors are neutral considerations. There are no factors weighing in favour of granting an extension of time.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order[15] to that effect will separately be issued.
COMMISSIONER
Appearances:
Mrs Mary Okumu, Applicant
Ms Cecilia Jordan, support person for the Applicant
Mr Gabriel Paul Oyoo, Acholi interpreter
Ms Gen Toop, on behalf of the Respondent
Ms Tracy Semmens, on behalf of the Respondent
Hearing details:
14 June 2024.
Microsoft Teams.
[1] PN26-27.
[2] PN24-27.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] PN78.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
[8] PN24.
[9] PN71-74.
[10] PN56-57.
[11] PN69-70.
[12] PN47-55.
[13] Digital Court Book at page 8.
[14] Ibid at page 7.
[15] PR776213.
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