Ms Maree Maher v
[2024] FWC 909
•9 APRIL 2024
| [2024] FWC 909 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ms Maree Maher
v
Garry Nash Real Estate Pty Ltd
(C2024/1064)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 9 APRIL 2024 |
Application to deal with contraventions involving dismissal – extension of time.
On 21 February 2024, Ms Maree Maher made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent to the application is Garry Nash Real Estate Pty Ltd. The Application proceeded to hearing before me on 8 April 2024.
This decision reflects the decision I delivered during the course of the hearing. At the conclusion of the hearing, I informed the parties that I would publish in writing my reasons for dismissing Ms Maher’s application.
Ms Maher commenced employment with the Respondent on 16 October 2023. Ms Maher was dismissed from her role as a Commercial Property Administrator on 29 January 2024, the dismissal took effect on that day.
Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Ms Maher’s application was made 2 days after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.
Alleged Contravention
Ms Maher contends that she was dismissed by the Respondent in contravention s.340 of the Act. In her application Ms Maher submits she was dismissed for raising complaints about bullying in the workplace.
The Respondent denies that it contravened the general protections provisions of the Act, and submits it dismissed Ms Maher during her probation period because she was ‘not the right fit’ for the organisation. The Respondent further submits that during Ms Maher’s employment it did not receive any complaints about the alleged bullying conduct.
Legislation
Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are “exceptional circumstances”. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1] The test of “exceptional circumstances” in relation to granting an extension of time to lodge an application under s.365 establishes a “high hurdle”.[2] A decision whether to extend time under s.366(2) involves an exercise of discretion.[3] The longer an Applicant delays making an application the more difficult it will generally be to overcome that hurdle. [4]
In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Ms Maher’s application for an extension of time is set out below.
Reason for the delay –s.366(2)(a)
For this consideration there must be an acceptable or reasonable explanation for the delay.[6] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, this will tend to weigh against a finding of exceptional circumstances.[7]
In her application Ms Maher submits the reason for the delay was because she had contacted legal support and was on a waiting list. Ms Maher submits she contacted several other legal firms however they declined to assist her. She therefore completed and submitted her application to the best of her ability.
During the hearing, Ms Maher gave evidence that she sought legal advice the week after she was dismissed. On 15 February 2024, Ms Maher sought the assistance of Job Watch and was provided with a copy of the Form F8 application and was informed she had 21 days from her dismissal to lodge her application. Ms Maher did not file her application at that time.
Ms Maher also submits that her application was completed and lodged shortly after midnight on 20 February 2024. This Commission does not have any record of receiving an application at that time and Ms Maher has not provided any evidence in support of her submission.
Further, Ms Maher says she has three children that she looks after (a teenager aged 16 and two adults aged 18 and 22). In addition, Ms Maher has aging parents who she spends time with assisting them on their property. Ms Maher is currently studying and attends classes most Wednesdays.
Ms Maher filed submissions on 28 March 2024. She submits that the reason for the delay in lodging her application was due to computer and internet problems at her residence. Ms Maher submits that computer and internet problems at her residence delayed the lodgement of her application. Ms Maher also filed a series of emails which record her complaints to Telstra and the Telecommunications Industry Ombudsman about her internet.
Ms Maher submits her internet issues were ongoing for some time. The evidence relied on by Ms Maher are emails in which she makes complaints to her telecommunications provider. The earliest timestamp on these emails is 25 January 11:33am which is several days after Ms Maher filed her application. Further, during the hearing Ms Maher said she thought she could file her application on the Saturday or Sunday prior to filing her application but she had internet trouble. I am not satisfied that Ms Maher provided adequate reasons for why she was unable to file her application on either the Monday or Tuesday prior to the making of the application.
Whilst I accept that like many others juggling the raising of a family and providing care for elderly parents can be stressful, it is not something that is out of the ordinary or exceptional. Ms Maher’s internet issues were known to her, and I accept that she may have had issues on the Saturday and Sunday prior to making her application. However, the evidence does not provide a reasonable explanation for why she did not file her application within the 21 day period allowed. Ms Maher was aware her internet could be unreliable however she has not provided any evidence that would persuade me that she could not have filed her application within time or prior to 21 February 2024. I am not satisfied that the matters Ms Maher relies upon as reasons for the delay in making her application are exceptional circumstances. This weighs against the granting of an extension of time.
Action taken by Ms Maher to dispute the dismissal – s.366(2)(b)
Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[8]
Other than making this application Ms Maher took not other steps to dispute the dismissal. In the circumstances, this weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
Prejudice to the employer will go against the granting of an extension of time.[9]
Neither party contends there is prejudice to the Respondent caused by the delay. The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. However, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were to be granted and consider this criterion to be neutral.
Merits of the application – s.366(2)(d)
Ms Maher commenced her employment with the Respondent as a Commercial Property Management Administrator on 16 October 2023. On 29 January 2024 Ms Maher was notified in person that she was being dismissed from her employment. Ms Maher was provided with a letter of termination that same day advising she was being dismissed during her probation period.
In her application Ms Maher submits she was dismissed for raising concerns about bullying and how she had been spoken to in a meeting with one of the managers. Ms Maher says she believes that the Respondent decided “she was just to hard to deal with” because of the complaints she raised.
The Respondent submits Ms Maher was not the right fit for the business and was dismissed within her probationary period.
A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so and I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.
Fairness as between the person and other persons in alike position – s.366(2)(e)
This consideration concerns consistency with other relevant cases to ensure fairness as to how Ms Maher’s case is decided relative to how other matters of a similar kind have been decided in the past.
Neither party made submissions about any circumstances that are relevant to the question of fairness as between Ms Maher and any other person who may have had similar circumstances. I therefore consider this criterion to be neutral.
Conclusion
A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. Having considered the evidence and submissions as they relate to each of the criteria set out in s.366(2), I am not satisfied that there are exceptional circumstances, either individually or when considered together, warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
An order[10] to that effect will be published separately to this decision.
COMMISSIONER
Hearing details:
2024.
Melbourne (by Video):
8 April.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] [2014] FWCFB 2288 at [21].
[3] Halls v McCardle and Ors [2014] FCCA 316.
[4] [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].
[8] [2018] FWCFB 901 at [45].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.
[10] PR773305.
Printed by authority of the Commonwealth Government Printer
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