Ms Katharine Gardiner v Thamarrurr Development Corporation
[2025] FWC 7
•2 JANUARY 2025
| [2025] FWC 7 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Katharine Gardiner
v
Thamarrurr Development Corporation; Ms Tracey Leo
(C2024/7430)
| COMMISSIONER RIORDAN | SYDNEY, 2 JANUARY 2025 |
Application to deal with contraventions involving dismissal
On 16 October 2024, Ms Katharine Gardiner (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal by Thamarrurr Development Corporation and Ms Tracey Leo (the Respondents) on 24 July 2024.
The Applicant filed her s.365 application 84 days after her dismissal took effect, which is 63 days outside the 21-day statutory timeframe.
A Jurisdictional Hearing was scheduled to be conducted on 20 December 2024. However, based on the evidence filed as per the Directions, my Chambers wrote to the parties on 19 December 2024, seeking confirmation from the Applicant whether she required the Respondents’ two witnesses for cross-examination, and if not, whether the parties sought that the matter be dealt with on the papers.
The Applicant advised that she did not wish to have the Respondents’ witnesses attend for cross-examination, and both parties advised they were content to have the matter determined on the papers.
The Jurisdictional Hearing was vacated accordingly.
Legislative Provisions
The relevant provisions of the FW Act are:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
The meaning of ‘exceptional circumstances’ was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[1] where it was held:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
I now turn to the consideration of the matters set out in section 366(2) of the FW Act to determine whether an extension of time should be granted.
Section 366(2)(a) – reason for the delay
In relation to the delay for filing her s.365 application, the Applicant filed a Medical Certificate completed on 12 December 2024 which provides:
“This certificate is to certify that Ms Katharine Ann Gardiner is receiving medical treatment for the period from 24/07/2024 to 16/10/2024 inclusive.
She will be unfit to continue her usual occupation for this period of time.”
The Applicant submitted that the Medical Certificate was in relation to her:
“… not being able to speak properly after scolding my throat and it affecting the muscles, a minor bells palsy, was my only communication problem.”
In her Form F8 application, the Applicant had provided the following explanation for failing to file within the 21-day statutory timeframe:
“The ceo told me I had no rights as it was within probation period and I believed him, also threatened twice in writing they would get lawyers on to me.”
The Respondents submitted the mere fact the Applicant asserted she was told she had “no rights”, which the Respondents denied, is not an exceptional circumstance. The Respondents submitted that the Applicant had the opportunity to undertake her own research in relation to her ability to present a claim, but failed to enquire about her potential options.
As to the Medical Certificate, the Respondents submitted that by the Applicant’s own admission and her submission, the Medical Certificate was in regard to her “not being able to speak properly after scolding [her] throat and it affecting the muscles, a minor bells palsy, was [her] only communication problem”. The Respondents submitted that the Applicant provided no further submissions, supporting documents or witness statements.
Further, the Respondents noted that the Medical Certificate was backdated and merely stated that the Applicant was ‘unfit to perform her role’. The Respondents submitted that this does not demonstrate any inability to submit a written claim within the 21-day timeframe.
For the above reasons, the Respondents submitted that the Applicant has failed to particularise ‘exceptional circumstances’ in relation to the reason for her delay in filing.
The Applicant submitted that she was homeless as a result of her dismissal and sent to my Chambers a photo of a makeshift dwelling following the Respondents’ Reply Submissions. The photo was sent with the caption – “This is where we live, at the back passed the cooking area is the bathroom shed, I sleep in the sea container on the left.”
The Respondent submitted that the Full Bench decision in Ellikuttige v Moonee Valley Racing Club Inc (Ellikuttige)[2] is relevant to this proceeding in so far as that case also involved medical evidence in relation to the capacity of the applicant and evidence of homelessness. The Full Bench upheld the decision at first instance, by saying:
“the Deputy President refers to the medical evidence and evidence of homelessness presented to the Commission at paragraphs [14] and [18] of the Decision. In each case, the Deputy President notes that evidence does not address the question of any link between these matters and the delay in lodging the unfair dismissal application. Mr Ellikuttige’s position appears to be that these factors inherently explain the delay. But this cannot be accepted.”[3]
Whilst I am very sympathetic to the plight of the Applicant if these are her current living conditions, there is no evidence to show any link between this photo and the relevant statutory date for the Applicant to lodge her application. Further, there is no evidence that the Applicant did not have internet access at this point in time.
The unchallenged evidence of the Respondents is that the Applicant made enquiries about her payslips following her termination. On this basis, I find that the Applicant had telephone service during this period of time. There is no record, nor is there any evidence, that the Applicant has sought advice in relation to her industrial situation from either a third party or the Commission’s helpline.
For the reasons stated above, and adopting the obiter in Ellikuttige v Moonee Valley Racing Club Inc,[4] I find that the Applicant has not provided any exceptional circumstances to justify the delay in filing her application, and that this weighs against the granting of an extension of time.
Section 366(2)(b) – action taken to dispute dismissal
The Respondents submitted that the Applicant took no action to dispute the termination of her employment.
The Applicant provided no submissions in this regard.
I find that this is a neutral consideration.
Section 366(2)(c) – prejudice to the employer
The Respondents submitted that if the Commission were to exercise its discretion to grant the Applicant an extension of time for filing her application, it would require the Respondents to defend the application in circumstances which it would otherwise be barred because of the Applicant’s failure to comply with the time limit. The Respondents submitted that this factor weighs against the granting of an extension of time.
The Applicant provided no submissions in this regard.
I do not regard the Respondents’ necessity to defend a s.365 application for a former employee as a reason of itself to suggest the existence of any prejudice. I find that this is a neutral consideration.
Section 366(2)(d) – merits of the application
The Respondents made submissions in relation to the Applicant’s inability to engage with her role with the Respondent Company, and complaints that it had received about the Applicant. The Respondents submitted that for these reasons, the Applicant was dismissed during her 6-month probationary period.
The Applicant made submissions as follows:
“If further evidence about my performance is required there is information held with HR that supports me.
• Information such as the minutes of meetings regarding the coordinator's performance.
• Notes I sent to HR at ceo John's request, regarding the coordinator's detrimental attitude towards the issues regarding the planning, budget, reporting, having the centre open and accessible to all families, booking personal flights and bypassing me as the manager to obtain approval using another worker in a different dept.
…
• Regarding their statement of lack of attendance in the children and family centre, this issue was around long before I started, another organisation had made me aware of the cause of the problem, which was the coordinator, I had meetings planned to resolve this issue.
• The coordinator was on leave interstate when the temporary cancellation was placed on the company credit card.”
While the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[5] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
For the purposes of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.”[6]
I am satisfied that there will be contested submissions in a merits-based hearing. As a result, I adopt the obiter in Kornicki.
For these reasons, I find that the merits of the application are a neutral consideration.
Section 366(2)(e) –fairness between the person and others in a like position
Neither party filed submissions in relation to this factor.
Accordingly, I find this to be a neutral consideration.
Conclusion
I have taken into account all of the submissions that have been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
The evidentiary task for the Applicant was not to prove whether or not she could perform her normal duties. Rather, the Applicant was required to substantiate her claim that there were cogent reasons for not lodging her general protections claim within the statutory timeframe, which could be identified as exceptional circumstances.
For the reasons stated above, I find that the Applicant has not substantiated an ‘exceptional circumstance’. In accordance with the obiter in Nulty, I have decided not to grant an extension of time for the Applicant to file her s.365 application.
The Respondents’ jurisdictional objection is upheld.
The Applicant’s s.365 application is dismissed.
I so Order.
COMMISSIONER
[1] (2011) 203 IR 1.
[2] [2018] FWCFB 4988.
[3] Ibid at [22].
[4] [2018] FWCFB 4988.
[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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