Ms Maren Nickel v The Department of Human Services
[2023] FWC 630
•21 MARCH 2023
| [2023] FWC 630 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Ms Maren Nickel
v
The Department of Human Services
(C2023/603)
| COMMISSIONER PLATT | ADELAIDE, 21 MARCH 2023 |
Application to deal with an unlawful termination dispute – request for an extension of time – application dismissed.
Introduction
Section 774 of the Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unlawful termination dispute pursuant to s.773 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Ms Nickel a further period to lodge her unlawful termination dispute (Application)against The Department of Human Services. I note that the original Application nominated Kurlana Tapa (which was the location at which the Applicant worked) as the Respondent. Having heard from the parties, I have corrected the name of the Respondent pursuant to s.586 of the Act.
Background
Ms Nickel’s application identified that the date of termination was 17 August 2022. Her s.773 application was lodged on 4 February 2023.
The application indicated that it was made beyond 21 days from the date of dismissal.
On 15 February 2023, I issued directions for the filing of material and advised that the extension of time issue would be considered at a telephone conference on 14 March 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.
A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character.
Hearing
A hearing was conducted by way of telephone conference at 10am on 14 March 2023. A sound file record of the telephone conference was kept.
Ms Nickel represented herself. Mr Jack Tatnell represented the Department of Human Services.
Ms Nickels position is summarised as follows;
· Ms Nickel worked for both the Department for Child Protection (DCP) and the Department for Human Services (DHS) under separate Contracts of Employment.
· Ms Nickel was employed with the DCP as a child and youth worker.
· On 14 July 2022 the DCP dismissed Ms Nickels employment pursuant to s.48(3) of the Public Sector Act 2009
· Ms Nickel challenged that dismissal by making a s.365 Application in the Fair Work Commission. The matter was allocated to me. Ms Nickel’s s.365 application against the DCP was withdrawn for jurisdictional reasons, and a s.773 application was lodged, for which I granted an extension of time. The DCP’s s.773 application was subsequently conciliated and resolved before me on 13 October 2022. The settlement was recorded on transcript.
· Ms Nickel commenced casual employment with the DHS as a youth worker on 12 February 2022. The employment contract contained an outer limit of 4 January 2023.
· On or about the 5 May 2022 the DHS became aware of an investigation of Ms Nickel by the DCP.
· On 23 June 2023 the DHS advised Ms Nickel that she would not be engaged to perform work as she was suspended by DCP.
· On 17 August 2023 the DHS advised Ms Nickel that as a result of the findings made by the DCP it would not offer any further work to her.
· Ms Nickel contended that the delay was explained by the fact she was contesting her dismissal by DCP and she wanted to resolve that matter first.
· Ms Nickel also contended that her employment contract continued until 4 January 2023.
· Ms Nickel pleaded that she be permitted to challenge the DHS decision as it was unfair.
The Respondent contends that the Applicant has not provided any reason for the late submission, other than that she did not realise her contract end date, which was 4 January 2023. If the Applicant was terminated on 17 August 2022, then her contract end date is not relevant. If the Applicant is asserting she was not terminated and instead her employment ended on 4 January 2023 at the end of her contract, then there cannot have been an unlawful termination.
Applicable Law
Section 774(2) of the Act states that the Commission may allow a further period for an applicant to lodge an unlawful termination dispute if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(a) the reason for the delay; and
(c) any action taken by the person to dispute the termination; 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 like position.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.774 of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd,[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[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.”
Consideration
Paragraph 774(2) (a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] In my view, the latter dated 17 August 2023 had the effect of dismissing the Applicant who had worked for DHS regularly until that date.
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[6] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[7] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[8] which stated:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
Putting Ms Nickels case at its highest, she has explained the delay from the 7 September (the last day for filing of the Application within time) until 13 October 2022. At that time, her dispute with DCP had been concluded and there was no reason to delay the filing of any dispute with the DHS.
I am not persuaded that the Applicant has a reasonable basis to conclude that her employment continued past 17 August 2022 until the expiration of the outer limit of her casual employment until 4 January 2023. In any event, the application would still have been out of time if this was the date of termination and no explanation has been given in respect of that period, the DCP claim having been finalised 3 months beforehand.
In my view, the Ms Nickel has not provided a credible reason for the delay in filing the application.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 774 (2)(b) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[9]
Whilst Ms Nickel took many steps in respect of the termination of her DCP employment, the only action taken with respect to the DHS was the sending of an email on the day of her dismissal.
This factor is a consideration against the granting of an extension of time.
Paragraph 774 (3)(c) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[10] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[11]
A long delay gives rise “to a general presumption of prejudice”.[12]
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
This factor is a neutral consideration in respect of the granting of an extension of time.
Paragraph 394(3)(e) - merits of the application
In so far as the termination date was the 17 August 2022 in terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor. In the event that the employment end date is the end of the outer limit contract, then the Applicant appears not to have been dismissed and this would be a factor that would weigh against the granting of an extension of time.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[13] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order reflecting this decision will be issued.[14]
COMMISSIONER
Appearances (by telephone):
Ms Maren Nikel on behalf of the Applicant.
Mr Jack Tatnell on behalf of the Respondent.
Hearing details:
2023.
Adelaide:
14 March.
<PR760328 >
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[7] [2016] FWCFB 349
[8] [2018] FWCFB 3288 at [35]-[45]
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[10] Ibid
[11] Ibid
[12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
[13] [2016] FWCFB 6963
[14] PR760478
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