Ms Hope Felicety Jones v Boandik Lodge Incorporated
[2024] FWC 2999
•29 OCTOBER 2024
| [2024] FWC 2999 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Hope Felicety Jones
v
Boandik Lodge Incorporated
(U2024/11694)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 29 OCTOBER 2024 |
Application for an unfair dismissal remedy – extension of time – recusal sought on ground Member had allegedly not studied Holy Bible – recusal application dismissed – delay in filing attributable to seeking withdrawal of misconduct allegations – whether exceptional circumstances – extension refused – application dismissed
On 27 September 2024, Hope Jones (Ms Jones or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. The application related to a dismissal by Boandik Lodge Incorporated (Boandik Lodge, the respondent or the employer) which took effect on 1 February 2024.
The application is 218 days outside the statutory 21-day period for making unfair dismissal claims. Ms Jones seeks an extension of time. The respondent opposes an extension.
This decision determines that question.
I issued directions on 17 October 2024 and heard the extension matter (by video) on 25 October.
Ms Jones was self-represented. Boandik was represented, with permission, by a legal practitioner. I heard evidence from Ms Jones and from Boandik’s Human Resources Manager Mr Antonio D’Agostino.
Recusal
In written submissions prior to the hearing Ms Jones raised three issues:
that the extension of time hearing, which had (without objection during the 17 October directions hearing) been listed by video, be heard in person at Mount Gambier;
that Ms Jones be permitted to give evidence on oath taken on the Holy Bible; and
that “you have no standing, no authority to judge when you have not studied the Holy Bible”. According to Ms Jones “to be a judge it is written that you have to have studied the Holy Bible written by Almighty God [Holy Trinity/Almighty God/Jesus Christ/ Holy presence/spirit Male]”.
Prior to the hearing, I rejected the request to relocate the hearing in person to Mount Gambier. This was neither necessary or appropriate for an extension of time matter, nor having regard to timeliness, cost or efficiency.
I agreed to allow Ms Jones to give evidence on an oath taken on the Holy Bible provided, over the video, I could verify that Ms Jones had in her possession a copy of the text. In doing so I sought to accommodate the applicant’s request and vary my regular practice of taking video evidence on affirmation.
The third request I take as a recusal application, made on the ground that I am allegedly not qualified to determine matters on Ms Jones unfair dismissal application because I am required to have first studied the Holy Bible.
I gave Ms Jones an opportunity at the commencement of the hearing to make an oral submission on the question, after advising that I would regard her written submission as a recusal application.
After hearing Ms Jones, I indicated that I had decided to dismiss her request that I not hear the matter and would deliver my reasons for doing so in due course. I now do so.
To the extent Ms Jones made a recusal application, it is meritless. The principles governing the determination of recusal applications are well established and need not be repeated.[1]
The Commission is a civil tribunal created under statute by the Commonwealth parliament exercising legislative powers under the Australian Constitution. That founding document is premised upon church being separate from State. Controversial though the Commission and its predecessors may occasionally be or have been since the Court of Conciliation and Arbitration was first formed in 1904, the Commission has no inherent jurisdiction, let alone anything akin to the ecclesiastical courts of the medieval era. Members, like Australian courts and tribunals, sit under the Australian coat of arms. The coat of arms, and the oath administered upon taking office, represents that a Member sits under the authority of the Commonwealth and the Crown, not divinity.
The authority I hold to deal with Ms Jones’s application derives from the fact of my appointment as a Deputy President of the Commission under s 626(1) of the FW Act, and that her application (U2024/11694) has been assigned to me.
Qualifications for appointment as a Deputy President are set out in s 627(2). None refer to religious texts. Ms Jones appears not to challenge the instrument of appointment that appointed me as a Deputy President, or that the Governor-General did so consistent with these statutory provisions, or that I met those qualifications.
Rather, Ms Jones submits that a different or additional criteria applies; that is, to exercise the power to determine her unfair dismissal application, I must have studied or be versed in the Holy Bible, a Christian religious text.
The submission is a nonsense and the less said about it the better. Irrespective of whether it is justiciable for a court to look behind an instrument of appointment to test whether a Member’s qualifications align to those in s 627 (a proposition of significant legal doubt), nothing in the FW Act requires a Member to have studied a religious text of any faith.
To the extent Ms Jones is suggesting, as a matter of discretion but not law, that I should stand aside until such a pre-condition exists that too is equally an affront to the proper administration of the FW Act and the oath taken by Members to faithfully and impartially perform the duties of office according to law.
Accordingly, it is unnecessary to interrogate whether I have knowledge of the Holy Bible or have studied it. I decline to do so.
The recusal application, to the extent that this is what Ms Jones’s submission was, is dismissed.
I now deal with the extension of time issue.
The facts are largely not in dispute.
Facts
Boandik Lodge provides aged care and disability services in the south-east of South Australia. It is based in Mount Gambier.
Ms Jones is a local resident. She commenced employment in April 2022 as a personal care assistant.
She was dismissed by letter dated 1 February 2024. The dismissal took effect that day.
The reason stated for dismissal was an alleged “failure to provide a medical clearance to confirm your fitness for duty, as reasonably directed”.
Two weeks in lieu of notice was paid.
The background to the dismissal was that on 11 August 2023, the applicant was suspended pending an investigation into alleged misconduct. An allegations letter was sent on 12 October 2023. On 18 October and 28 November 2023, the applicant was directed to provide a medical clearance to confirm her fitness for duty. According to the respondent, she did not do so. A show cause letter was sent to the applicant on 23 January 2024. This was followed by the termination letter on 1 February 2024.[2]
The respondent did not hear from Ms Jones for the next 188 days.
On 28 August 2024 Ms Jones emailed the respondent. Amongst other matters, the applicant requested that the respondent allow her to return to work.
Boandik Lodge replied to Ms Jones on 16 September 2024, confirming that the dismissal took effect on 1 February 2024 and declining the applicant’s request to return to work.
Ms Jones filed this application eleven days later, on 27 September 2024.
Submissions
Ms Jones acknowledges in her application that she has filed beyond the 21-day time limit.
She states the reason for the delay being:
“Hope they would revoke accusations and recommence my employment”.
She seeks an extension of time.
Boandik Lodge oppose an extension. It submits that no exceptional circumstances exist.
The respondent submits that if Ms Jones presses her unfair dismissal application it has no reasonable prospects of success and a costs order would be sought.
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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 application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[5]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[6]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[7]
The application is 218 days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[8] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[9]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[10]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[11]
The reasons advanced by Ms Jones are that she is “innocent of the accusations” and “hoped” the respondent would “revoke accusations and recommence my employment”.
An extension of time hearing is not a merit hearing. That an applicant believes, even in good faith, that the reason(s) for dismissal are unjustified is not unusual. Nor does such a belief by Ms Jones in her “innocence” explain, in any sense, the delay.
Further, “hope” or waiting that a dismissal may be reversed, or hope that re-employment after dismissal may occur, or hope that allegations which preceded dismissal may be revoked (or a combination thereof) are not acceptable reasons for delay. There was nothing rational about the “hope” Ms Jones says she had for the nearly eight months following dismissal and before filing her application. Boandik Lodge held out no possibility of re-engagement, either at the time of dismissal nor subsequently.
The reason for delay does not weigh in favour of extending time.
Awareness of dismissal (s 394(3)(b))
Ms Jones was made aware of the dismissal shortly thereafter by letter dated 1 February 2024. This is a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Boandik Lodge knew in 2023 in a general sense that Ms Jones disputed the misconduct allegations and did not believe that she should be required to present medical proof of fitness for work.
However, Ms Jones did not communicate with Boandik Lodge for 188 days following her dismissal. Only then did she indicate that she “will look into taking further action legally to stand up for my reputation in regard to my proven competency in my work ethic”.[12]
That Ms Jones took no action to dispute the dismissal for a prolonged period weighs against a finding that the circumstances are exceptional.
Prejudice to the employer (s 394(3)(d))
Boandik Lodge would incur time and effort in responding to an unfair dismissal claim. The lengthy delay is likely to add a level of prejudice in responding and defending a claim. Notwithstanding, the prejudice to the employer has no particularly unique feature.
However, the absence of prejudice would not itself be a reason to grant an extension.[13]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Ms Jones’s unfair dismissal application concerns whether the direction to provide a medical clearance to confirm her fitness for duty was lawful and reasonable. If the respondent is able to establish the erratic behaviours it allegedly identified following the suspension on which it relies it would be likely to have issued a lawful and reasonable direction, and have a valid reason for dismissal given that no such certificate was provided. The documentary material before me, if established under oath, suggests that procedural fairness was afforded. Equally, Ms Jones’s belief that she is “innocent” of the misconduct accusations would also be relevant to merit but is not a matter on which I am currently called upon to adjudicate. It should be noted though, that the dismissal appears not to have been founded on the earlier allegations of misconduct, but on an alleged failure to provide a medical clearance to confirm fitness for duty.
I have not heard evidence on these issues. Whilst the applicant’s case may be weak, it is not possible to give significant weight to this consideration.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This issue does not arise in this matter.
Conclusion
The delay period is lengthy. The explanation for delay provides no reasonable basis to extend time. Nor does the lengthy period of no contact with the employer following dismissal. All other circumstances are neutral. None weigh in favour.
I do not find the circumstances for the late lodgement to be exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/11694 cannot be extended.
Being out of time, the application must be dismissed.
An order[14] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Ms Hope Felicety Jones, on her own behalf
P. Chessar, of EMA Consulting with permission, on behalf of Boandik Lodge Incorporated, with A. Gosden assisting
Hearing details:
2024.
Adelaide (Video);
25 October.
[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; Woodside Energy Limited v Australian Workers Union[2022] FWCFB 192
[2] R1 Attachment E
[3] Smith v Canning Division of General Practice[2009] AIRC 959
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[6] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[7] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[8] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35]-[45]
[10] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[11] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[12] Email 28 August 2024
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[14] PR780725
Printed by authority of the Commonwealth Government Printer
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