Priscilla Kickett v Kaata-Koorliny Employment & Enterprise Development Aboriginal Corporation (Keedac)

[2021] FWC 764

[2021] FWC 764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Priscilla Kickett
v
Kaata-Koorliny Employment & Enterprise Development Aboriginal Corporation (KEEDAC)
(U2020/15344)

DEPUTY PRESIDENT BEAUMONT PERTH, 19 MARCH 2021

Application for an unfair dismissal remedy.

[1] Ms Priscilla Kickett applied for an unfair dismissal remedy after her employment with the Kaata-Koorliny Employment & Enterprise Development Aboriginal Corporation (the Respondent) came to an end. Her application was filed with the Fair Work Commissionon 27 November 2020. Section 394(2) sets a 21-day timeframe in which an unfair dismissal application must be filed. Having been notified of her dismissal on 8 October 2020, Ms Kickett’s application had been filed late. This decision addresses whether Ms Kickett will be provided with a further period in which to file her application.

[2] Whilst Ms Kickett initially pressed that her application had been made in time because her dismissal took effect on 25 November 2020, during the hearing of the matter, Ms Kickett conceded that her dismissal took effect on 8 October 2020, and she no longer sought to agitate the issue. It is, therefore, the case that if Ms Kickett’s application is to now proceed, it is necessary for her to obtain an extension of time in which to make the application.

[3] Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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

[4] The issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[5] In short, Ms Kickett advanced several reasons why I should find that there were exceptional circumstances. She attributes the delay to several factors, which include:

a) the overwhelming stress of becoming unemployed;

b) the hospitalisation of her brother, who was informed he had not long to live and subsequently passed away;

c) family issues arising from Ms Kickett’s brother’s passing;

d) ‘sorry time’ on the passing of her son-in-law’s mother;

e) caring for her grandchildren whilst her son-in-law organised his mother’s funeral;

f) management of her own disability;

g) an inability to change focus from grieving to focusing on her dismissal;

h) awaiting the outcome of a meeting on 15 October 2020 as to whether the Respondent would allow her to return to her position;

i) not being notified of the outcome of the meeting on 15 October 2020 until 25 November 2020;

j) fear arising from being unemployed; and

k) a culmination of all of the abovementioned factors.

[6] For the reasons that follow, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed.

Background

[7] It should be said from the outset that this matter was plagued by a paucity of cogent evidence. The Respondent did not file witness statements, an outline of submissions, or any other material save a one page letter. Contact with its officers had proved difficult as its offices had been closed for a period, and key office personnel had been on leave.

[8] At hearing, permission was therefore provided to Ms Kickett and the Respondent’s witnesses, Ms Phillips, its Compliance Officer and Ms McGuire, the Chairperson of the Board of the Respondent, to provide oral testimony. No objection was taken to this course.

[9] In addition, Ms Kickett, Ms McGuire and Ms Phillips were provided with much guidance in an attempt to allow them to bring forward their best evidence whilst attempting to avoid an emotionally charged encounter. While guidance was provided, at times, they displayed an inclination to talk over the top of each other, therefore necessitating several interjections in an attempt to bring them back on track. However, at all times, the parties were responsive to such guidance.

[10] Ms Kickett commenced employment with the Respondent on or around 17 February 2017. It appeared from the evidence led that she would often provide support to clients of the Respondent who were experiencing problems with illicit drugs.

[11] Ms Phillips gave evidence of having been told by Mr Jetta, the Acting Chief Executive Officer, that he had believed that Ms Kickett had been using illicit drugs which was against the policy and rule book of the Respondent.

[12] On 6 October 2020, Mr Jetta had attended the Narrogin Pathwest testing centre with Ms Kickett for a drug test. Whilst driving to the testing centre, Ms Kickett purportedly informed Mr Jetta that she knew it was going to be positive. The drug test was positive for illicit drugs. Ms Kickett took no issue with this evidence and admitted that she had made a mistake.

[13] On 8 October 2020, a meeting was held with Ms Kickett. She was informed that testing positive for illicit drugs was contrary to the obligations Ms Kickett had under the Respondent’s rule book and policy. Ms Phillips, who was present in the meeting, gave evidence that Ms Kickett was offered two options. The first, that her employment would be terminated with payment in lieu of notice. Ms Phillips said that this option was provided as it was not viable to have Ms Kickett remain at the service when she was responsible for discouraging illicit drug use amongst the Respondent’s clients, when she, herself, was using ‘crystal meth’. The second, that Ms Kickett could resign, and she would be provided with 12 weeks full-time pay if she did not dispute her dismissal. Ms Phillips said that this option was provided as Ms Kickett had been a good worker and the Respondent wanted to support her. Further, she was encouraged to attend Holyoake, a drug rehabilitation program.

[14] According to Ms Phillips, Ms Kickett signed the resignation letter but thereafter sought to dispute her dismissal by asking for a Committee of the Board to convene to hear her dispute her dismissal. Ms Kickett gave evidence that she was of the view that her employment had ended as of 8 October 2020. However, she felt that she had been bullied into signing the letter of resignation.

[15] The Committee, consisting of three persons, including Ms Phillips, Ms Davies and a Mr Slater, convened on 15 October 2021 to hear Ms Kickett’s reasons why her dismissal should not stand and why she should be provided with her job back. Ms Kickett said that during the meeting, Mr Slater had asked her if she wanted her job back. Ms Phillips gave evidence that while Mr Slater may have asked that question, it was not his decision to make; it was for the Committee to make that decision. It followed, that having heard Ms Kickett’s case for her to be reinstated into her former position, the Committee ended the meeting and thereafter deliberated. Ms Kickett was notified on 25 November 2020 that the decision to dismiss her remained unchanged.

Consideration

[16] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 2

[17] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty), 3 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.4 Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[18] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 5 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, can be considered exceptional.6

[19] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 7 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

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. 8

[20] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

Reasons for the delay in filing the application

[21] Consideration turns to whether Ms Kickett has provided a credible reason for the period that her application was delayed. 9 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.10 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.11

[22] Ms Kickett provided several reasons for the delay in lodging her application. The delay was some 29 days.

[23] First, Ms Kickett gave evidence of experiencing great stress in the period between the dismissal and the lodging of her unfair dismissal application. Inevitably, losing employment may cause distress. I appreciate that Ms Kickett’s circumstances were difficult. However, in this respect, they are not exceptional. Further, Ms Kickett was not so incapacitated by such stress that she was unable to attend a subsequent meeting on 15 October 2020, where she pleaded her case to the Respondent’s Committee to secure her re-employment. No medical certificate was provided at hearing to show that Ms Kickett had been unfit during the delay period.

[24] Second, Ms Kickett spoke of the news of her brother and his passing. Whilst one cannot underestimate the significance of Ms Kickett’s loss and sympathy is extended, on any objective level, the evidence does not demonstrate that Ms Kickett’s grieving was so all-encompassing that she was incapable of complying with the requisite statutory deadline. As it was, Ms Kickett’s caring responsibilities for her grandchildren, the illness of her brother and his passing and the stress of her job loss, did not preclude her from seeking out a meeting with the Committee. Further, it is noted that Ms Kickett provided this Commission with no temporal reference as to when her brother’s illness and subsequent loss occurred during the relevant period.

[25] Ms Kickett’s evidence also encompassed that the delay period included a period of ‘sorry time’ and grieving. Again, while Ms Kickett appeared to have faced several challenges during the delay period, including the loss of both her brother and another relative, and depression, there was no evidence given concerning the timing, either approximate or precise, of the period of ‘sorry time’, or that she was unfit during that period.

[26] Reference was made to awaiting the outcome of the meeting held on 15 October 2020. While I appreciate that Ms Kickett may have saw fit to have delayed making her application because she was awaiting the outcome of the mid-October meeting, it nevertheless remained the case that as of the time of the meeting, and thereafter, – Ms Kickett had been dismissed. The meeting may have resulted in the Respondent deciding to employ Ms Kickett again, yet there was no guarantee of that. Further, insofar as waiting for the outcome of the meeting, there was nothing to preclude Ms Kickett from filing her application for an unfair dismissal remedy. No suggestion was made that to do so might have prejudiced Ms Kickett concerning the dispute she had raised with the Respondent over her dismissal.

[27] Section 591 of the Act provides that ‘[T]he FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter)’. Although the rules of evidence do not apply in the strictest sense, 12 as a Full Bench noted in the decision in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union:13

While the Commission is not bound by the rules of evidence that does not mean that those rules are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then Industrial Relations Act 1979 (WA):

However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence.

[28] In short, the rules of evidence provide general guidance as to the manner in which the Commission chooses to inform itself. Given the circumstances of the parties and the unfamiliarity with the jurisdiction, assistance was provided to both in an attempt to illicit their evidential cases. However, the onus still sits with a party to make good their evidential case, and as already noted, in these matters, the applicant has a considerable onus to convince the Commission to exercise the discretion. 14 Much of the evidence provided concerning Ms Kickett’s reasons for the delay was unsupported by direct evidence, temporal references – whether approximate or specific, or any corroborative evidence.

[29] Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just. While I appreciate that Ms Kickett’s dismissal came at a difficult time, I am not satisfied that the evidence presented warrants a conclusion that the circumstances, whether considered in isolation or cumulatively, are ‘exceptional’ as that term is used in s 394(3) of the Act - for the abovementioned reasons. It is however very important to note that this conclusion does not in any way seek to minimise the loss that Ms Kickett has endured, the depression she suffered and any hardship encountered.

[30] I have considered the delay as the period beyond the 21-day period. I am not satisfied that Ms Kickett has made out an acceptable or reasonable explanation for the period (or part thereof) of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Whether the Applicant became aware of the dismissal after it took effect

[31] I have considered all of the evidence and submissions and am satisfied that Ms Kickett was notified of her dismissal on the same day that it took effect – 8 October 2020. I am satisfied that this factor is, therefore, a neutral consideration.

Action taken to dispute the dismissal

[32] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 15 I have considered all submissions and the evidence in this respect. Ms Kickett did dispute her dismissal – so much is clear from the meeting on 15 October 2020. This circumstance weighs in favour of granting an extension of time.

Prejudice to the employer

[33] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The Respondent made no submissions in this respect, and neither did Ms Kickett. This is despite both being informed at the commencement of the hearing that this factor would be considered.

[34] As it is, I am unpersuaded that the Respondent would suffer prejudice. I consider this to be a neutral factor in the present case.

Merits of the application

[35] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[36] In Kornicki v Telstra-Network Technology Group, 16 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench 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. 17

[37] Concerning the substantive application, the merits have not been fully tested. However, Ms Kickett did not resile from the Respondent’s assertion that she had tested positive for illicit drug use. Ms Kickett acknowledged that she had made a mistake. The Respondent argued that Ms Kickett’s conduct in this respect was contrary to its policies and rule book. Neither were shown to me at hearing. However, as it is, evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 18

[38] The factual contentions and the merits of the application more generally would need to be scrutinised. This of course would include consideration of Ms Kickett’s contractual obligations and duty to the Respondent in the event an extension of time were granted and the matter proceeded. In all of the circumstances however, I have considered this to be a neutral factor.

Fairness between the person and other persons in a similar position

[39] The Deputy President in Morphett v Pearcedale Egg Farm, 19 considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 20

[40] Neither the Respondent nor Ms Kickett addressed this factor, and as such, in the circumstances of this case, I have considered it a neutral criterion.

Conclusion

[41] Having considered the matters referred to in paragraphs [16] – [40] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Kickett’s application to be made.

[42] Based on the evidence before me, there is no satisfactory explanation for the period of the delay in making the application, and the other factors are predominantly neutral, with the exception that Ms Kickett disputed her dismissal. In this respect, the totality of the evidence is insufficient to ground a finding that the Applicant’s circumstances were out of the ordinary course, unusual, special or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.

[43] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order 21 will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726948>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 3   [2011] FWAFB 975.

 4 Ibid [15].

 5 Ibid [13].

 6   Ibid.

 7   [2018] FWCFB 901.

 8 Ibid [38].

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 10   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 11   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 12   Mr Glen Mackie v BHP Coal Pty Limited[2013] FWCFB 8210.

 13 (2004) 143 IR 354 at [48]-[50].

 14   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 16   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 17   Ibid.

 18   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 19   [2015] FWC 8885.

 20 Ibid [29].

 21   PR727914.