Noelene Mengel v Club Glenvale Toowoomba Hockey Association
[2023] FWC 1793
•24 JULY 2023
| [2023] FWC 1793 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Noelene Mengel
v
Club Glenvale - Toowoomba Hockey Association
(U2023/5149)
| DEPUTY PRESIDENT LAKE | BRISBANE, 24 JULY 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application dismissed.
Ms Noelene Mengel (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to her dismissal at Club Glenvale – Toowoomba Hockey Club (the Respondent).
On the Form F2, the Applicant states that she commenced her employment with the Respondent on 11 November 2022 and was notified of her dismissal on 15 May 2023. The dismissal was effective on the same day.
The Applicant lodged her application on 10 June 2023. The application was lodged 5 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is whether an extension of time pursuant to s.394(3) of the Act should be granted.
Directions were issued and materials were filed by each party regarding whether the Application should be granted an extension of time. A hearing was held before me on 18 July 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“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 reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6] The Applicant states that the reason for delay were:
She had been suffering from COVID-19 and had a difficult time recovering. The Applicant had supported this with confirmation of a positive test on 16 May 2023 (one day after the dismissal)
She was a sole parent and required to care for her two mentally ill children,
She had been taking painkillers and these affected her significantly.
She was suffering from depression and anxiety.
She had contacted a number of agencies to get advice, but it took a while for her to process what was said to her at the date of dismissal and felt overwhelmed.
She was focused upon getting a new job as she needed the money to pay her mortgage, making applications going for interviews and taking work trials.
She had discovered that she had a degenerative hip disorder that would require surgery.
She had suffered from a past brain trauma and was suffering from PTSD.
She did not understand that she could submit the just the form with minimal details.
The Applicant states she was only able to lodge the Application once she was informed by Working Women Queensland about the process.
The Respondent asserts that:
No evidence was provided to support the Applicant’s exceptional circumstances although there were several requests by Chambers that she submit evidence for her extension of time.
She was able to complete job application, attend for interviews and undertake a job trial during the 3 weeks and yet was unable to complete a simple form.
The Applicant did not establish any other medical evidence besides a positive COVID-19 test. The Applicant was able to attend job interviews and undertaking a work trial within the 21-day timeframe indicating that she was able to lodge an unfair dismissal form within the same time period. Even if accepting that the Applicant had difficulties filling out the form, a call could have been made to the Fair Work Commission.
I am not satisfied that the Applicant’s reasons for delay were sufficient. This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant states that she was dismissed on 15 May 2023 on her Form F2 and that she was not aware of the 21-day time frame at the time of dismissal. The Applicant knew that she was dismissed on this date, but states that she attempted to contact the employer to obtain her job back.
The Applicant was aware of her dismissal and therefore this consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take to dispute the dismissal. This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not raise any prejudice of granting an extension of time. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[7] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8]
In Gaelene, Manson v Marthakal Homeland Resource Centre Inc [2015] FWC 2880, Commissioner Bissett found that anxiety that did not totally incapacitate the Applicant was not a sufficient reason for an extension of time and stated at [13]
“It is not unusual for a person to suffer anxiety following a dismissal… It is also not unusual for a person to be under the care of a doctor for that anxiety”.
In McBride v JA Krieger Forestry Services[2021] FWC 6284 at [5], Deputy President Colman found that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay. The Applicant in this matter was also unwell around the time of her dismissal and was able to deal with other matters.
I accept that the Applicant was unwell during this period and had stress and anxiety from the loss of her job. However, the Applicant was also able to demonstrate she was able to function by applying for different jobs and undertaking a work trial.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances have been established in this matter.
I Order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
N. Mengel for the Applicant
J. Van Gorp from Clubs Queensland for the Respondent.
Hearing details:
18 May 2023
Hearing via Microsoft Teams
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
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