Ms Kylie North v Mercy Community Aged Care Services T/A Mercy Community Aged Care Services
[2024] FWC 1752
•3 JULY 2024
| [2024] FWC 1752 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kylie North
v
Mercy Community Aged Care Services T/A Mercy Community Aged Care Services
(U2024/4522)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 3 JULY 2024 |
Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed
On 19 April 2024, Ms Kylie North made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Mercy Community Aged Care Services (Mercy).
Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.
In summary, I have found that Ms North’s employment ended on 14 March 2024. The application should have been made on 4 April 2024 to comply with s.394(2)(a) of the FW Act. The application was therefore made 15 days outside of the 21-day limit.
I have found that the circumstances in which the application was made are exceptional, according to the factors in s.394(3) of the FW Act. I consider it fair and equitable that time should be extended, and I therefore grant an extension of time to file the application to 19 April 2024.
Case management conference
The matter was allocated to my Chambers and listed for a case management conference on 31 May 2024.
On 31 May 2024, I made directions for the filing and serving of material and set the matter down for hearing/determinative conference by Microsoft Teams at 10:00am on 3 July 2024.
Ms North filed submissions and the following evidence in accordance with the directions on 14 June 2024:
Witness Statement of Ms Kylie North dated 12 June 2024
Witness Statement of Mr Graham Thinee, Organiser, Australian Workers Union (AWU) dated 11 June 2024
On 26 June 2024, Mercy advised that it would not be filing any material in relation to the extension of time issue. Mercy made submissions about the extension of time issue in the Form F3 – Employer response to unfair dismissal application.
Vacation of hearing
On the morning of the hearing, Mercy’s representative advised that she was not able to attend the hearing due to illness. Both parties advised the Commission that they had no objections to the matter being determined on the material filed.
As Mercy has not filed any evidence in this matter, there are no contested facts with respect to the extension of time issue. I am therefore not required to conduct a conference or hold a hearing under s. 397 of the FW Act. Accordingly, I have decided to determine the matter having regard to the material filed.
Was the application made within 21 days after the dismissal took effect?
There is no dispute between the parties and I so find that the dismissal took effect on 14 March 2024.
As the Full Bench has stated in relation to a general protections application, but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As the dismissal took effect on 14 March 2024, the final day of the 21-day period was therefore 4 April 2024 and ended at midnight on that day.
It is not in dispute, and I so find, that the application was made on 19 April 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.
Should the Commission allow a further period for the application to be made?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Ms North first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms North 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 Ms North and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 4 April 2024. The delay is the period commencing immediately after that time until 19 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
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.[6]
Evidence
Ms North provided the following evidence. Ms North was employed by Mercy as a Catering Assistant and is a member of the AWU. Mr Graham Thinee, AWU Organiser, represented Ms North up until the time that the AWU’s Industrial Team undertook the drafting and filing of her Unfair Dismissal Application with the Commission.
On 14 March 2024, Ms North received a text message from Mr Thinee advising that he had spoken his supervisor Mr Craig Sell, Central District Secretary in which he provided his views regarding the matter and sought instructions from Ms North in relation to whether Ms North wanted to pursue an unfair dismissal application. Ms North indicated that she wished to pursue such an application.
On 19 March 2024, Ms North contacted Mr Thinee and advised that she had been dismissed from her employment with Mercy and instructed Mr Thinee to file an unfair dismissal application on her behalf. On 22 March 2024, Ms North sent material to Mr Thinee regarding her matter which Mr Thinee confirmed he had received. On 3 April 2024, Ms North sent an email to Mr Sell and Mr Thinee requesting an update in relation to the unfair dismissal application. The same day, Mr Thinee responded and stated that he had not received any update. On 18 April 2024, Ms North sent another follow-up email to Mr Thinee and Mr Sell enquiring about the status of her unfair dismissal application. Ms North also followed up this inquiry by text message to Mr Thinee.
Mr Thinee provided the following evidence. Mr Thinee commenced employment with the AWU as an Organiser for the Central District on 22 January 2024. Mr Thinee commenced representing Ms North on 24 January 2024. The AWU use a system called ARMS to refer matters which require applications to be made in tribunals and courts to the AWU’s Industrial Team. On 19 March 2024, Ms North instructed Mr Thinee by email to file an unfair dismissal application on her behalf. That day, Mr Thinee referred Ms North’s matter to the AWU Industrial Team to file an unfair dismissal application on Ms North’s behalf. Mr Thinee understood that the ARMS system had accepted Ms North's application. On 11 April 2024, Mr Thinee filed an application on behalf of another member through the ARMS system and received a receipt. He noted that he had not received a receipt for Ms North’s application, but assumed Ms North’s matter had been filed. After Mr Thinee received a follow-up email from Ms North enquiring about the status of her unfair dismissal application on 18 April 2024, Mr Thinee talked to Mr Sell who directed Mr Thinee to contact Mr Barry Watson, the Senior Industrial Advocate for the AWU. On the same day, Mr Thinee again filed Ms North’s matter with the ARMS system and received a confirmation receipt.
Ms North and Mr Thinee provided emails and texts message of the communications between them during the period from 14 March 2024 to 18 April 2024.
Findings
The reason for the delay is because the AWU’s Industrial Team did not receive notification from Ms North’s representative Mr Thinee that Ms North wanted to file an unfair dismissal claim. It is not clear why this occurred. There is no dispute between the parties that Mr Thinee attempted to refer the matter to the Industrial Team through the ARMS system on 19 March 2024. It appears that Mr Thinee either did not correctly submit the matter or that there was a technical issue with the ARMS system. It should be noted that Mr Thinee had only been working at the AWU for two months at the time of Ms North’s dismissal which might explain why Mr Thinee did not take appropriate steps to ensure that the matter was referred.
Regardless of the reason for this, I believe that the AWU should have some mechanism or process to ensure that matters referred to the Industrial Team were in fact received. This is particularly so given that the AWU has previously relied on issues with its ARMS system to seek an extension of time on the grounds of representative error.[7]
It is also very concerning that there was no attempt to follow up the status of the matter with the Industrial Team when Ms North sent an email to Mr Sell and Mr Thinee requesting an update in relation to the unfair dismissal application on 3 April 2024. Had such follow up occurred, Mr Sell and Mr Thinee would have become aware that the Industrial Team had not received Mr Thinee’s referral and steps could have been taken to file the application within the required timeframe.
The AWU has submitted on behalf of Ms North that she should not be disadvantaged due to her representative’s error, as she took all reasonable steps possible to provide the relevant information to the AWU within the 21 day time period.
The AWU relied on Phan v GJK Facility Services[8]where an extension of time was provided in relation to an unfair dismissal application which was lodged 25 days late. In that case, the Applicant submitted that the reason for the late lodgement was ‘wholly the fault’ of his union, as within a week of being dismissed the Applicant attended the union office and instructed the union to lodge an unfair dismissal application on his behalf.
In considering this matter, Commissioner Lee referred to the decision of the Full Bench in Clark v Ringwood Private Hospital[9]which indicates that late lodgement of an application due to representative error may be grounds for an extension of time, however, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee has contributed to the delay. The actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, if an application was delayed simply because the employee left it in the hands of their representative and took no action to follow up their claim then an application might be refused. However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted.[10]
The documentary evidence filed by Ms North shows that she instructed the AWU to file an unfair dismissal application on 14 and 19 March 2024 and that she made further inquiries on 22 March, 3 April and 18 April 2024. Ms North had no reason to believe that the application had not been filed by the AWU on 19 March 2024. In my view, Ms North’s actions did not contribute in any way to the late filing of the application.
Taking all of these matters into account, I believe that the reasons for the delay in making the application weigh in favour of an extension of time being granted.
Did Ms North first become aware of the dismissal after it had taken effect?
It is not in dispute, and I so find, that Ms North first became aware of the dismissal when it took effect on 14 March 2024. This is a neutral consideration in this matter.
What action was taken by Ms North to dispute the dismissal?
There is no evidence that Ms North disputed the dismissal directly with her employer. However, the documentary evidence shows that Ms North was proactive in disputing the dismissal with the AWU by instructing it to lodge an application and making follow up inquiries. Taking these matters into account, I believe that the action taken by Ms North to dispute the dismissal weigh in favour of an extension of time being granted.
What is the prejudice to the employer (including prejudice caused by the delay)?
Ms North submits that there is no prejudice to Mercy should the Commission exercise discretion to extend the time to file the application. Mercy is a large organisation with an abundance of resources and operates a very large business.
In the Form F3 – Employer response to unfair dismissal application, Mercy claimed that the delay in the application being submitted has caused it prejudice as currently Mercy is undergoing a significant structural change which results in limited resources to handle the matter.
In my view the matters raised by Mercy in relation to its limited resources to deal with the matter arise regardless of whether or not the application was filed within the required timeframe or not. These matters do not arise specifically because the application was filed out of time. I therefore find that prejudice to Mercy is a neutral consideration in this matter.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the Form F2 – Unfair Dismissal Application, the Form F3 – Employer response to unfair dismissal application and Ms North’s submissions. No evidence has been filed in relation to these matters.
It is evident from this material that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter if an extension of time were granted. It is well established that, ‘it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)’[11] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between Ms North and other persons in a similar position
Mercy also submits that the fairness between Ms North and other person in a like position would be questioned. This is based on another employee submitting an unfair dismissal claim within the required timeframe regarding a similar sequence of events and that Ms North would be able to rely on the outcome of this matter if the Commission allowed Ms North’s matter to be heard. Mercy did not file any evidence in support of this submission so I am unable to determine whether granting the extension would create unfairness between Ms North and the other employee.
More broadly, I note that the Commission has previously granted an extension of time where the delay in filing the application has been caused by representative error and the employee has been ‘blameless’ in relation to the delay. Refusing the extension of time would potentially create unfairness between Ms North and those persons. In relation to this factor, I believe that fairness as between Ms North and other persons in a similar position weigh in favour of an extension of time being granted.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being the AWU’s Industrial Team not receiving notification from Ms North’s representative Mr Thinee that Ms North wanted to file an unfair dismissal claim.
(b) Ms North becoming aware of the dismissal when it took effect;
(c) the absence of any action being taken by Ms North to dispute the dismissal with her employer prior to making the application, but Ms North proactively disputing the dismissal with the AWU by instructing it to lodge an application and making follow up inquiries;
(d) no issue of prejudice to Mercy being identified;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) issues of fairness arising as between Ms North and other persons in a similar position.
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.[12] 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.[13]
The evidence shows that Ms North wished to dispute her dismissal and took steps to ensure that her union representative lodged the application in a timely manner. She provided the AWU with multiple opportunities to check that the application had in fact been lodged but they did not do so until 19 April 2024, by which time the application was 15 days late. It was reasonable for Ms North to rely upon her union representative to file the application on time and they let her down by not doing so, particularly in circumstances where the ARMS system had previously led to the late filing of an application.
The reasons for the delay, the action that Ms North took with the AWU to dispute the dismissal and issues of fairness arising as between Ms North and other persons therefore weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(b), (d) and (e) are neutral considerations.
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 19 April 2024.
The matter will be shortly listed for Directions and Conciliation.
DEPUTY PRESIDENT
Hearing Details
Matter determined on the papers.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Mr Matthew Boakes v St Johns Community Care Limited [2020] FWC 2837
[8] [2017] FWC 60
[9] (1997) 74 IR 413
[10] [2017] FWC 60, [18]-[19]
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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