Mrs Teniel Watts v Sunraysia Community Health Services Limited
[2024] FWC 2388
•13 SEPTEMBER 2024
| [2024] FWC 2388 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Teniel Watts
v
Sunraysia Community Health Services Limited
(U2024/8594)
| COMMISSIONER WILSON | MELBOURNE, 13 SEPTEMBER 2024 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.
This decision concerns an application by Mrs Teniel Watts for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Watts’ employment with Sunraysia Community Health Services Limited (Sunraysia) ended on Wednesday, 26 June 2024. Ms Watts’ unfair dismissal application was filed in the Fair Work Commission on Tuesday, 23 July 2024.
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 Wednesday, 17 July 2021. The application was therefore filed 6 days outside the 21-day period. Mrs Teniel Watts asks the Commission to grant a further period for the application to be made under s.394(3).
Sunraysia opposes an extension of time for the commencement of Ms Watts’ unfair dismissal application as well as arguing that she has not been dismissed within the meaning of the FW act, having instead resigned. Ms Watts says about the purported resignation that it was a forced resignation and thereby a dismissal within the meaning of the FW act.
This decision considers only the matter of whether an extension of time should be granted to Mrs Watts.
For the reasons set out below, I am satisfied on the material before me that there are not exceptional circumstances in Mrs Teniel Watts’ case. It follows that I must dismiss her unfair dismissal application.
A hearing in respect of the application was held by me on Wednesday, 4 September 2024, at which Mrs Teniel Watts appeared on her own behalf. Sunraysia Community Health Services was represented by Mr Ben Chatfield, its Chief Operating Officer. Mrs Teniel Watts provided written and oral submissions and gave oral evidence about her circumstances. Sunraysia relied on its F3 Employer Response and gave oral submissions.
BACKGROUND
Mrs Watts was employed by Sunraysia Community Health Services from 19 August 2019 until 26 June 2024, in Sunraysia’s Family and Child Hub, providing assistance to parents and their families. Sunraysia is based in Mildura, Victoria and at some stage in late 2023, Mrs Watts and her husband took steps to relocate their family to the Queensland Sunshine Coast.
At that time, Mrs Watts discussed with Sunraysia whether she could continue working for Sunraysia from the Sunshine Coast, working remotely. She anticipated that she could provide the same services to her employer and its clients as she did while living in Mildura, by providing telehealth and text-based consultations to clients and supporting other Sunraysia employees with their caseload.
Sunraysia Community Health Services however did not agree to Mrs Watts’ proposal for her to work entirely remotely and put to her instead that it would support her relocation by allowing her to continue to work by remote means for a limited term only. Conversations between Mrs Watts and the organisation about the subject of her relocation in February and March 2024 lead to the Respondent putting a proposal to Mrs Watts to the effect that, since it could not permanently allow her to work remotely, she could choose to either resign her employment in February 2024 or she could continue working remotely for Sunraysia for a period of three months only. It was explained to Mrs Watts that if she wished to take the latter of these options, it would be necessary for her to provide a resignation in March 2024, taking effect in June 2024.
Mrs Watts elected to take the second proposal, providing a letter of resignation to the Respondent stating, amongst other things, “I regretfully write this letter of resignation, to take effect in June 2024. I’d like to propose my last day of work be Wednesday 26th June”.
The steps taken by Sunraysia, requesting Mrs Watts resign, are what Ms Watts characterises as a forced resignation, being a dismissal within the meaning of s.386(1)(b).
As explained already, this decision does not deal with the subject of whether Mrs Watts’ employment ended either through resignation or dismissal.
It is relevant to note that Mrs Watts became pregnant in late 2023 and gave birth to a child on 28 June 2024. Her baby arrived about five days before the due date, and she was discharged from hospital about three days after giving birth. This was her second child, she also has a toddler, aged about 21 months. While Mrs Watts let her immediate supervisor know that she was pregnant, she did not make any application for parental leave. Mrs Watts has initiated these proceedings principally because she is now concerned that, had her employment continued, she would have been entitled to a period of paid parental leave available to her under the relevant enterprise agreement, the Community Health Centre (Stand Alone Services) Social and Community Service Employees Multi Enterprise Agreement 2022.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
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”. Exceptional circumstances have been defined as 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.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking 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.”
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 consider these matters in the context of the Application.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The Act does not specify whether a particular reason for the delay might tell in favour, or not 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 the circumstances must be considered.[3]
Mrs Watts says that she formed the view that she had been forced to resign a month or so before her employment ended. She dealt with the subject first by making contact with Job Watch on 7 June 2024 and later with the Fair Work Ombudsman. She also contacted the Fair Work Commission about her situation. One of the Fair Work Ombudsman or the Fair Work Commission recommended to her that she make an unfair dismissal application to the Fair Work Commission. Mrs Watts also recalls that either the Fair Work Ombudsman or the Fair Work Commission made it clear to her that the application had to be made within 21 days of the termination of her employment.
With her employment having ended on 26 June 2024, Mrs Watts gave birth to her child two days later on 28 June. She had taken about two weeks leave, owing to illness, for about the last two weeks of employment. She does not report any unusual complications in respect of the arrival of her child or the availability of partner support, although she does note that she does not have extended family support in Queensland, as there are none living in the same region. When giving evidence to the Commission, she asked for this circumstance, the fact that she had recently given birth to a newborn, to be taken into account as a reason for her delay.
In Ms Watts’ evidence, the primary reasons she gave for her delay was that she made an error in transferring a reminder about the subject to her calendar. She had in her mind that a period of 28 days was permitted to make an application, which is what she placed in a calendar reminder. It was only when she lodged her application that she realised the error.
I do not consider that this is an acceptable explanation as to the reason for the delay. Creating an inaccurate calendar reminder is not something out of the ordinary course. While it is relevant to note the birth of Mrs Watts child shortly after termination of employment, that occurred sufficiently before the final day for an in-time application to be made, with Mrs Watts reporting no out of the ordinary difficulties in those first three weeks of the birth of her child, meaning it may be discounted as an exceptional circumstance leading to the late lodgement.
I therefore find that consideration of this criterion leans against a finding of exceptional circumstances and the granting of an extension of time for the filing of Mrs Watts’ unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
Noting that the Respondent objects to whether there was a dismissal, it is nonetheless the case that Mrs Watts was aware of the date of termination of employment well before it took place. Ms Watts sent a letter of resignation to Sunraysia on 19 March 2024, proposing her last day of employment be 26 June 2024, so was fully aware of the date her employment would end, a full three months before it ended. As such, consideration of this criterion also leans against a finding of exceptional circumstances.
Action taken to dispute the dismissal
There was no action taken by Mrs Watts to dispute the end of her employment other than through the commencement of this application. Accordingly, consideration of this criterion is a neutral factor in my consideration of whether there are exceptional circumstances for a grant of an extension of time for the making of her unfair dismissal application.
Prejudice to the employer
Sunraysia Community Health Services does not put forward any particular prejudice to it if an extension of time were to be granted, save for the fact that it objects to the characterisation of Mrs Watts’ end of employment being a dismissal. Consideration of this criterion is also a neutral factor in my overall decision.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an Applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[4] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the Applicant; or alternatively, whether it appears an Applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[5]
Mrs Watts argues in respect of the merits of her application that she was forced to resign when she did not wish to do so and that, due to her forced resignation, she was denied the opportunity to receive up to 10 weeks paid parental leave available to her under the enterprise agreement applying to her employment. If this were capable of being found to be a constructive dismissal then the notification date would be 19 March 2024, the date of the resignation letter, and its date of effect would be 26 June 2024, the last day of Ms Watts’ employment.
Against this position, the Respondent argues that there was never any application for parental leave from Mrs Watts and so that this was not a factor in its decision-making about Mrs Watts’ request to work remotely from the Sunshine Coast. It instead argues that its decision-making was consistent with an internal procedure dealing with “Off-Site Working Arrangements”, which set out in some detail the eligibility of employees to work remotely. The procedures include that requests to work remotely on a temporary or permanent basis will only be considered by Sunraysia under exceptional circumstances, defined within the procedure. Sunraysia argues that Mrs Watts does not meet those requirements.
At this stage, the material before the Commission about the merits of the application is insubstantial and at a basic level and so no findings can be made about the parties’ respective prospects. However, in this regard I note there is no evidence before the Commission that Mrs Watts applied for parental leave at any stage, let alone in the period before Sunraysia put to Mrs Watts its proposed choices.
In finality, I consider these matters to be a neutral factor in my overall consideration of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal Applicants, whose applications are either currently before the Commission, or have been decided in the past.[6] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[7]
There is no evidence before the Commission of any person in such a similar position.
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mrs Teniel Watts, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of his application for an unfair dismissal remedy.
As a result of this finding, Mrs Teniel Watts’ unfair dismissal application must be dismissed and an order to that effect is issued at the same time as this decision.[8]
COMMISSIONER
Appearances:
Mrs T Watts, for the Applicant.
Mr B Chatfield, for the Respondent
Hearing details:
4 September.
2024.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975,[13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[5] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[6] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[7] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[8] PR779198.
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