Ms Lili Dorward v Australian Taxation Office
[2025] FWC 446
•14 FEBRUARY 2025
| [2025] FWC 446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Lili Dorward
v
Australian Taxation Office
(C2024/8534)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 14 FEBRUARY 2025 |
Application alleging contravention of General Protections provisions – extension of time – whether exceptional circumstances exist – application dismissed.
This decision concerns the issue of whether there are ‘exceptional circumstances’ such that the applicant in this matter, Ms. Lili Dorward (Applicant), should be permitted to proceed with a late application under Part 3-1, General Protections of the Fair Work Act 2009 (Cth) (Act). For the reasons which follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.
Background
On 27 November 2024 the Applicant filed an application under s.365 of the Act against her previous employer, the Commonwealth of Australia as represented by the Australian Taxation Office (Respondent) alleging that her employment had been terminated by the Respondent in breach of Part 3-1 - General Protections – of the Act.
Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant’s dismissal took effect on 10 September 2024 and that the application was therefore out of time by a period of 57 days.
The Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.
Legislation
Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:
(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.
I deal with each of the matters referred to in s.366(2) below.
Section 366(2)(a) – reason for the delay
The Applicant argued that her application had been delayed because she was not mentally well enough to file the application within time. The Applicant gave uncontested evidence that her mother was critically ill in palliative care at the time of her dismissal and for the period from then until 2 November 2024 when the Applicant’s mother passed away. The Applicant said that her mother was in the final stage of advanced dementia during this period. The Applicant said that she attended the hospital on a regular basis to assist with the care of her mother.
The Applicant also said that she suffered from a mental crisis because of the investigation process that had been undertaken that eventually led to the termination of her employment. The Applicant said this manifested in sleeplessness, a lack of focus on daily tasks, migraines and chest pains. The Applicant provided three medical certificates relating to her medical situation. The certificates are dated 8 and 15 August 2024. The first describes the Applicant’s state of mental health and certifies her as being unfit for work from 8 to 14 August. The second describes various physical and mental conditions in greater detail and the third describes the Applicant as experiencing significant stress, panic attacks and poor sleep. Those conditions are cited in the third certificate as reasons for the Applicant to be given further time, until 21 August 2024, to respond to the allegations that ultimately led to the termination of the Applicant’s employment.
The Applicant said that her medical condition also included amnesia caused by the workplace investigation. She said during this period she had forgotten to vote in an election as well as not filing the present application within time. In oral submissions she appeared to say she was not relying on amnesia as a reason for the delay.
The Respondent said that the Applicant had failed to provide sufficient documentation, in particular medical evidence as to the Applicant’s mental health, to adequately explain the delay of some 57 days in lodging the application. They pointed out that the Applicant was apparently in a well enough state to file two other applications in the Commission in August 2024 relating to the allegations that are the subject of the present application.
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 an applicant has not provided any reason for any part of the delay.[1] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[2] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[3]
I am satisfied on the evidence that the Applicant was facing extremely stressful and difficult circumstances immediately following the termination of her employment. As well as losing her job, the Applicant was preoccupied with her mother’s deteriorating health. She was attending hospital on a daily basis to be with her mother and to do whatever she could to assist. This would have taken a huge mental and physical toll on the Applicant. The loss of her mother on 2 November would have undoubtedly had an impact on the Applicant’s capacity to deal with other matters, including the preparation and filing of an application of this kind. Even though she was no longer physically attending at the hospital after that time, the Applicant was grieving and attempting to deal with her loss at the same time as making arrangements for the funeral and attending to her responsibilities as a single mother.
The Applicant said her condition was at least in part connected to the investigation process that was underway in her workplace. I also note however that formal medical evidence as to the Applicant’s health after her termination was not provided. The absence of such evidence makes a firm assessment of the Applicant’s overall state of health over the period of the delay difficult. The Applicant also submitted that the worst stage of her mental crisis was in August and that she was gradually getting better after that. I cannot be satisfied on the evidence that the conditions referred to in the August medical certificates persisted from 10 September until the lodgement of the application on 27 November. Nor am I satisfied that the Applicant’s alleged amnesia provides a credible reason for the delay.
In the circumstances I think the evidence as to the Applicant’s mother’s health and ultimately the loss of the Applicant’s mother, provides a partial explanation for the delay, but I cannot be satisfied that it explains the entirety of the 57-day period of the delay. The failure to account for part of the delay weighs against a conclusion that there are exceptional circumstances.
Sub sections 366(2)(b) – Any action taken by the person to dispute the dismissal
The Applicant said that she attempted to dispute the dismissal by calling the ATO People Helpline. The Applicant provided screenshots of inbound and outbound calls to support her claim. Many of these calls were made after the time limit for an application had passed. I do not consider that these calls assist the Applicant. There was a record of one outbound call to the Respondent on 11 September, being the date after the dismissal.
The Respondent submitted that the only record they had of contact from the Applicant through this line after her dismissal was on 28 October regarding an alleged bullying claim and 19 December to advise that an application had been lodged.
I am prepared to accept that the Applicant made at least one attempt to contact the ATO in relation to her dismissal after or on the day it occurred but before the time period had expired. However, the evidence as to what was said was insufficient for me to conclude that the Applicant had put the Respondent on notice that the dismissal was disputed or that proceedings might follow. I do not consider there is sufficient evidence for this consideration to weigh in the Applicant’s favour in the assessment of exceptional circumstances.
Sub sections 366(2)(c) - Prejudice to the employer
There was no evidence about prejudice to the Respondent, including prejudice caused by the delay. I am unable to conclude that such prejudice exists here. This is a neutral consideration in the assessment.
Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position
There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.
Section 366(2)(d) – Merits of the application
As to the merits of the application, the Applicant has asserted a contravention in the application which the Respondent denies. The Applicant says that she was terminated for reasons related to her alleged disabilities, national extraction and/or social origin. The Respondent contended that the Applicant was terminated solely for reasons related to her conduct including her failure to comply with conditions of employment and in particular, a Chief Executive Instruction relating to sexual harassment. The Applicant contended that the offending text messages upon which the Respondent had relied had not been sent by her. The Respondent pointed out that during the investigation process, the Applicant had not denied the alleged conduct and apologised for it.
The determination of these issues would require a full hearing on the evidence should the matter proceed. It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[4] However on the material available, I am of the view that Applicant’s prospects of establishing that the termination was related to one or more of the attributes referred to in the application and Part 3-1 of the Act, as opposed to the matters referred to in the letter of termination, are weak. I do not consider that the merits of the application support an overall conclusion that exceptional circumstances exist.
Exceptional circumstances – conclusion
In circumstances such as these the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.
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. 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.[5]
Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms L Dorward for the Applicant.
Ms M Prpic for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2:00pm AEDT on Thursday, 30 January 2025.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
[2] Ibid at [39].
[3] Stogiannidis op cit at [45].
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[5] Ibid at [13].
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