Norma May Griffen v Durri Aboriginal Corporation Medical Service

[2021] FWC 6235

[2021] FWC 6235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Norma May Griffen
v
Durri Aboriginal Corporation Medical Service
(U2021/8358)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 29 OCTOBER 2021

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

Introduction

[1] This decision concerns an application by Ms Norma May Griffen (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with Durri Aboriginal Corporation Medical Service (Respondent) took effect on 8 November 2018. The unfair dismissal application was lodged on 16 September 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 29 November 2018. The application was therefore filed about two years and 9.5 months outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 1 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[10] The following written submissions were made on behalf of the Applicant in support of her request for an extension of time:

“1. Ms Griffen’s husband of 36 years passed away in March 2017. They have 5 daughters. Mr Griffen had a significant heart condition throughout his life and Ms Griffen was his carer. She made regular trips to St Vincent’s Hospital in Sydney whilst continuing to work to provide an income for the family.

2. Ms Griffen suffered a heart attack in November 2017 and she continues to have ongoing health issues as a result which require regular doctor visits.

3. After the dismissal from Durri, Ms Griffen suffered depression which resulted in significant weight loss.

4. Ms Griffen is an indigenous woman who, for cultural reasons, struggles to seek assistance in commercial and professional matters. This perceived obstacle extends to the disclosure of private and confidential matters where she lacks confidence and assurance.

Despite the extended delay in making her application, Ms Griffen requests that the Commission find that her circumstances as detailed above be deemed as exceptional for the purposes of enabling her application to be lodged out of time.”

[11] The Applicant’s long term treating doctor, Dr Wendy Olden, provided a short report in the following terms in support of the Applicant’s request for an extension of time:

“I have known Norma Griffen … as a patient for many years.

I can confirm that she was the main carer for her husband Peter Anderson until his death in March 2017. Prior to this he had long term severe cardiac disease and required frequent medical appointments and Norma would attend many of these appointments with him. He was on a disability support pension due to his health conditions and Norma was receiving Carer’s Allowance.”

[12] Dr Olden attached a selection of the Applicant’s medical records to her report. Those records pertain to the Applicant’s admission to the Kempsey District Hospital on 13 November 2017 and her visit to see Associate Professor Kevin Alford, Senior Consultant Cardiologist & Physician, in January 2018. The medical records do not cover the period after January 2018, with the result that there is no medical evidence relating to the period since the termination of the Applicant’s employment with the Respondent in November 2018.

[13] Although I have sympathy for the Applicant’s personal circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the long delay in filing her unfair dismissal application. I am not persuaded on the material before the Commission that the Applicant’s medical condition in the period since her dismissal, or the passing of her husband about 21 months prior to her dismissal, prevented or materially diminished her ability to lodge, or give instructions to lodge, an unfair dismissal application in the Commission prior to 16 September 2021. As to the cultural reasons which are said to have resulted in the Applicant being reluctant to seek assistance in commercial and professional matters, I could understand how they may in a particular case provide the basis of a contention that the Applicant had an acceptable or reasonable explanation for a relatively short delay in lodging an unfair dismissal application. But the extent of the delay in this case is such that I do not consider this reason to provide an acceptable or reasonable explanation for the long delay in filing the Applicant’s unfair dismissal application.

[14] The absence of an acceptable or reasonable explanation for the long delay in lodging the application on 16 September 2021 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] The Applicant was aware of her dismissal on the day it took effect because she was provided with a termination letter by hand on 8 November 2018. The Applicant therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[16] The Applicant did not suggest that she took any action to dispute her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] The Respondent submits that given it is more than two years and nine months since the Applicant’s dismissal, it would be prejudiced if I granted the Applicant an extension of time because the long delay has prejudiced its ability to adduce evidence and statements from individuals because some of them no longer work for the Respondent and the ability of individuals to recollect events is hindered.

[18] When there is a long delay in lodging an unfair dismissal application, I accept that an employer is likely suffer some prejudice in responding to the claim where it involves disputes as to what happened or what was said a number of years ago. In the present case, it is evident from reading the unfair dismissal application and the response to it that there are disputes between the parties as to what happened concerning the Applicant’s attendance at the Respondent’s workplace in the period prior to her dismissal. Recollections as to such events usually fade over time, giving rise to prejudice to the employer. In assessing the extent of such prejudice, it is relevant to note that no evidence or other material was adduced to explain which witnesses no longer work for the Respondent, why a statement could not be obtained from them, or the extent to which any particular witnesses could no longer recall particular events. Having regard to the absence of any such evidence or material, I have decided to attribute a small amount of weight, against the Applicant’s interests, to the question of prejudice to the employer in my consideration of whether there are exceptional circumstances.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[20] The Applicant contends that she was dismissed for (a) returning to work approximately one hour late on one occasion when she was sick and (b) clocking on two minutes early and leaving 10 minutes early. The Applicant submits in her unfair dismissal application that her dismissal was unfair because other members of the organisation often started early, came back late from lunch and clocked off early. In addition, the Applicant says that she did not receive any prior written notices or warnings; she worked for the Respondent for 27 years and was a reliable and loyal employee.

[21] The Respondent contends that in September 2018 it provided the Applicant with a “last and final warning” in relation to what the Respondent regarded to be the Applicant’s poor attendance at work. The warning letter asserted that the Applicant had “only attended work 31.64% of the time over the last 3 months”.

[22] By letter dated 4 October 2018, the Respondent put allegations to the Applicant that she had arrived at work on 3 October 2018 at 8:28am, went to lunch at 12pm and failed to clock-out, took a one-and-a-half hour lunch break without authorisation, returned to work at 1:30pm and failed to clock back in, and failed to rectify or report her non-compliance prior to leaving work for the day at 4:50pm. The Applicant was invited to respond to the allegations.

[23] In a termination letter dated 8 November 2018, the Respondent:

•  accepted that the Applicant did not have an intention to dishonestly obtain a financial advantage by misrepresenting the hours she worked on 3 October 2018;

•  referred to an admission by the Applicant that she had failed to use the time card system twice on 3 October 2018;

•  stated that it did not accept that the Applicant forgot twice on the one day to use the time card system;

•  noted that the Applicant had failed to report her non-compliance to her team leader or manager, and did not rectify her failure to clock in and out;

•  concluded that the Applicant took an unauthorised absence from the workplace, beyond her allotted lunch break, and this was an act of misconduct; and

•  informed the Applicant that her employment was terminated with immediate effect and she would be paid five weeks’ pay in lieu of notice, together with her other entitlements.

[24] On the basis of the limited material before the Commission, I am of the view that the Applicant has an arguable case that her dismissal was harsh in circumstances where she was employed by the Respondent for 27 years and her dismissal arose after she was late back from lunch on one day when she says she was sick. The Respondent’s alleged poor attendance performance on the part of the Applicant over a period of time would be relevant to an overall assessment of the harshness of the dismissal, as would the Applicant’s contention that other members of the Respondent’s organisation often came back from lunch late.

[25] In all the circumstances, I consider the merits of the Applicant’s claim to weigh in her favour on her application for an extension of time.

Fairness as between the person and other persons in a similar position

[26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[28] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the long delay in lodging her application and although the Applicant has an arguable case that her dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[29] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms G Edgar, solicitor, on behalf of the Applicant
Mr A Maher, solicitor, on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
October 28.

Printed by authority of the Commonwealth Government Printer

<PR735358>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   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]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]