Philippa Mary Cassidy v Estia Health

[2022] FWC 1714

[2022] FWC 1714

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Philippa Mary Cassidy
v

Estia Health

(U2022/6065)

COMMISSIONER PLATT ADELAIDE, 5 JULY 2022

Application for an unfair dismissal remedy – request for an extension of time – application refused. 

Introduction

1. The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 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]

1. This decision concerns whether I should exercise my discretion to allow Ms Philippa Cassidy (the Applicant) a further period for her unfair dismissal application (Application) to be made against Estia Health (Estia or the Respondent).

1. At the conclusion of the Extension of Time Hearing on 5 July 2022, I determined not to grant an extension of time. These are the reasons for that decision.  

Background

1. Ms Cassidy has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Estia which her form F2 Unfair Dismissal Application advised took effect on 9 May 2022.

1. The application was lodged on 6 June 2022, and as such, is seven days out of time.

1. The application did not recognise that it was made beyond 21 days from the date of dismissal.

1. On 8 June 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 5 July 2022. 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.

1. On 10 June 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 9 May 2022 and pressed the jurisdictional objection that the application was lodged out of time.

1. Ms Cassidy filed a short statement by email on 14 June 2022. The Respondent did not file any material and relied on the information contained in its form F3 Employer Response.

Hearing

1. A Hearing was conducted by way of telephone conference on 5 July 2022. A sound file record of the telephone conference was kept. Ms Cassidy represented herself and Mr Nicholas Gold represented the Respondent.  

1. Ms Cassidy gave evidence at the Hearing. Her position is summarised as follows:

·   The Applicant suffered a non-work-related injury on or about 4 December 2021.

·   The Applicant was unfit for work from 4 December 2021 until 21 June 2022.

·   The Applicant did not have enough personal leave to cover the entire period of her absence from the workplace.

·   The Applicant’s brother was admitted to hospital on 2 February 2022, and after surgery stayed in rehabilitation care until mid-April 2022. Upon leaving rehabilitation care, the Applicant’s brother moved back to his own home.

·   On 21 March 2022, the Applicant’s mother was hospitalised for periods, and she remained in rehabilitation care until on or around 7 April 2022. Upon leaving rehabilitation care, the Applicant’s mother also moved back to her own home.

·   Whilst neither the Applicant’s mother nor brother lived with the Applicant after leaving rehabilitation care, the Applicant continued to care and provide support for them.

·   The Applicant received notice of termination on 2 May 2022. The Applicant’s dismissal took effect on 9 May 2022.

·   The Applicant sent an email to Ms Kerry Jachmann (Executive Director of the Respondent) on 5 May 2022, challenging the circumstances of her dismissal.

·   On 6 June 2022, the Applicant received advice from the Working Women’s Centre about the unfair dismissal application and the statutory time limit for applications and made the Application later that day.

·  The Applicant contended that she prioritised her family’s needs above her own.

1. The Respondent relied on its position put forward in its form F3 Response and contended that Ms Cassidy had been unable to put forward any position that could be regarded as exceptional circumstances such that an extension of time could be granted.

Applicable Law

1. Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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 similar position.”

1. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]

1. I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

“[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 394(3)(a) - reason for the delay

1. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5]

1. 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.”

1. 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]

“[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.”

1. It is note in dispute that the Applicant was dismissed on 9 May 2022.

1. The Applicant put two broad reasons forward for the late lodgement of her application. The first being her lack of knowledge of the lodgement timeframe for unfair dismissals, and the second being the effect of her caring responsibilities.

1. In respect of the ignorance of the lodgement timeframe, it is a well-established principle that ignorance of the lodgement timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.[9]

1. In respect of her caring responsibilities, the events replied upon predated the dismissal by a significant period. The Applicant was clear in her evidence that she chose to prioritise the caring of her mother and brother over the lodgement of her application. The Applicant provided no evidence as to how the caring responsibilities prevented her from completing an application within the time permitted. Whilst I acknowledge that the Applicant was feeling some stress as a result of her employment situation and her extra caring responsibilities, I am not satisfied that the circumstances were exceptional such to prevent her from lodging an unfair dismissal application.

1. In my view the Applicant has not provided a credible reason for the delay in filing the Application. This factor weighs against the granting of an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

1. Ms Cassidy was aware of the dismissal a week before it took effect.

1. This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

1. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]

1. The Applicant sent an email to Ms Jachmann on 5 May 2022 disputing the merits of her dismissal. Whilst technically this was action taken before the dismissal took effect, I accept that it was action taken to dispute the dismissal. This factor weighs slightly in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

1. Prejudice to the employer will weigh against granting an extension of time.[11] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[12]

1. A long delay gives rise “to a general presumption of prejudice”.[13]

1. The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[14]

1. There is no submission that the granting of an extension of time represents prejudice to Estia.  

Paragraph 394(3)(e) - merits of the application

1. 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.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

1. The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[15] 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.”

1. 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

1. 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. The Application is dismissed.   

COMMISSIONER

Appearances:

P Cassidy, the Applicant.
N Gold for the Respondent.

Hearing details:

2022.
Adelaide:
July 5.

[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] Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[11] Ibid

[12] Ibid

[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

[14] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

[15] [2016] FWCFB 6963

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