Nicole Melgert v The Uniting Church in Australia Property Trust (Q.) represented by Blue Care
[2022] FWC 1365
•1 JUNE 2022
| [2022] FWC 1365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicole Melgert
v
The Uniting Church in Australia Property Trust (Q.) represented by Blue Care
(U2022/3766)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 1 JUNE 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Mrs Nicole Melgert (Applicant) 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 The Uniting Church in Australia Property Trust (Q.) represented by Blue Care (Respondent).
The Respondent has objected to the application on the ground that the application is out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
My chambers issued directions on 16 May requiring the Respondent to file in the Commission, and serve on the Applicant, any written submission in respect of the extension of time issue by 4pm on Friday 20 May 2022 which they did.
The Applicant was also directed to file any written submissions and further evidence upon which she intended to rely upon by no later than 4pm on Friday 27 May 2022. The Applicant did not file any further material.
Whilst there were no contested facts involved, I provided both parties with an opportunity to request being heard. Neither party sought to be heard.
I therefore determined to decide the matter on the papers.
Submissions
The Applicant filed submissions with the Commission on 30 March 2022 in her Form F2 application in which she stated:
“I was unaware of the process and not knowing how it all goes as I was new to the working industry after looking after my children for a number of years.”
Further, and in response to a request from the Chambers of Vice President Catanzariti for the Applicant to explain the circumstances surrounding the late filing of the application and why they should be considered exceptional, the Applicant also made the following submissions on 18 April 2022:
“I am writing to you in regards to my application as yes I was new to the working industry and I honestly did not expect to hurt myself while at work.
I did attempt to go back to work for a few short hours but now I am still suffering with the pain in my back from the injury.
I was not aware of the time limit or process for lodging an application of unfair dismissal.
I really don’t understand how if a person hurts themselves at work and to no fault of their own, is still in pain and unable to return to their employment, that they can be terminated.
I do not think it is fair that my employment was terminated as I injured myself while at work and I wish to continue with my application.”
The Respondent filed submissions in the Commission on 20 May 2022 that did not contest the Applicant’s reasons for her delay however they did refer to relevant case law that supported “mere ignorance of the statutory time limit …. is not an exceptional circumstance”[1] and that it is expected that an applicant “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.” [2] The Respondent made a number of other legal arguments relevant to the matters to be determined by the Commission pursuant to s394(3) that are not inconsistent with my findings so I do not intend to repeat them here.
The Applicant did not file any further submissions in response to the Respondent’s material filed on 20 May 2022.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 8 November 2021.
When was the application made?
It is not in dispute, and I so find, that the application was made on 30 March 2022.
The application was lodged by email.
Where an application is lodged by email, the application is made at the time it was received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[3]
Was the Application made within 21 days after the dismissal took effect?
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.”[4]
As I found above, the dismissal took effect on 8 November 2021. The final day of the 21 day period was therefore 29 November 2021 and ended at midnight on that day. As I found above, the application was made on 30 March 2022, some 121 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
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 the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]
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 needed to have been made by midnight on 29 November 2021. The delay is the period commencing immediately after that time until 30 March 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
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.[7]
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.[8]
Submissions
The Applicant submitted that the delay was that she was unaware of the time frame required for lodgement.
In relation to the reason for the delay, the Respondent submitted that the case law dictates that this is not an exceptional reason (see paragraph 11).
Findings
Having regard to the above, I find that the reason for the delay was that the Applicant was unaware of the time frame or process for the filing of her application.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the 19 October 2021 and that it took effect on 8 November 2021 and therefore the Applicant had the benefit of 20 days prior to the termination taking effect in addition to the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 30 March 2022.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted.
Submissions
Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the following prejudice:
· It had already back filled the Applicant’s position; and
· The delay in time will impact the recall of potential witnesses.
Evidence
No evidence was put before the Commission to support these contentions.
Findings
Having regard to the matters referred to above, I find that prejudice would be suffered by the Respondent if an extension of time were granted for the lodgment of the application on the basis that the Respondent had filled the Applicant’s role although, given the size of the Respondent I find that this weighs against the extension of time, albeit slightly.
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 filed materials.
Having examined these materials, it is evident to me 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)”[9] 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. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Findings
Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make an assessment of the merits of the application.
I therefore find this to be a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Findings
In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.
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 reason for the delay, being that the Applicant was unaware of the timeframes and process required for lodging her application;
(b) the Applicant being aware of the dismissal some 20 days before it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) prejudice to the employer, being the Applicant’s position had been filled albeit given the size of the Respondent I gave this only very slight weight;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant 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.[10] 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.[11]
I note the Applicant’s submission that she was simply unaware of the time frames and process involved to make her application, and that mere ignorance of the statutory time limit is not an exceptional circumstance.[12]
I note that earlier on, the Applicant had injured herself at work however I also note that she put no evidence before the Commission to support the premise that her injury impeded her making of the application at an earlier time. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[13]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[14]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[15] There is no such evidence before the Commission.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
Final written submissions:
Applicant, 18 April 2022
Respondent, 20 May 2022
[1] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[2] Ibid [14].
[3] Fair Work Commission Rules 2013 (Cth) r 14(4).
[4] 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.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[13] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[15] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
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