Rebecca King v Focused on Care

[2024] FWC 1663

[2024] FWC 1663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Rebecca King
v

Focused On Care

(U2024/4849)

DEPUTY PRESIDENT SLEVIN SYDNEY, 25 JUNE 2024

Application for an unfair dismissal remedy – Extension of time – The application was in the post – Time extended

1. Ms. Rebecca King was dismissed from her employment with Focused on Care Pty Limited (Focused) on 5 April 2024. On 12 April 2024 she posted her application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission). The application was received by the Commission on 30 April 2024.

1. Section 394(2) of the Act provides that an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Focused objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act.

1. It was not in issue between the parties that the dismissal took effect on 5 April 2024, and I accept that the termination took effect on that date. The deadline for the filing of the application was 26 April 2024 and the application was made four days outside the prescribed time limit.

1. Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit. Ms. King has asked the Commission to exercise its discretion under s.394(3) of the Act to extend the time limit. That course was opposed by Focused. This decision deals with the question of whether or not the time for the making of the application should be extended.

Background

1. The relevant background may be shortly stated. Ms. King commenced employment with Focused on 28 February 2022 as a Disability Support Worker. She was dismissed on 5 April 2024. The reason for dismissal was misconduct. In her substantive application, Ms. King contends that her dismissal arose from false allegations and that she had been bullied at work for some time, reported it, and nothing was done to address her complaint.

1. Following her dismissal, Ms. King contacted the Commission to seek assistance. She was directed to the appropriate form (Form F2) and printed a copy out. On 11 April 2024, Ms. King completed the form. Ms. King lives in Warwick in southeast Queensland which is 130 kilometres and approximately 2 hours’ drive from Brisbane. On 12 April 2024, Ms. King posted the application in Warwick. It was addressed to the Commission’s Brisbane address. The form was not received by the Commission until 30 April 2024. The envelope had been stamped by Australia Post. The stamp reads: NMC 944-4 00.28 16/04/2024 indicating that it was received in Australia Post’s sorting centre in Brisbane on 16 April 2024.

1. An application to the Commission must be made in accordance with a prescribed form. A Form F2 is the relevant form for unfair dismissal matters. The form includes instructions. An F2 Form includes the following instruction:

Lodge your application, along with any accompanying documents, with the Commission within

21 calendar days after your dismissal took effect. You can lodge your application online using

the Commission's Online Lodgment Service (OLS) or by post, fax or email, or in person at the

Commission's office in your state or territory.

1. The Commission’s Rules permit the lodgment of documents by post. Rule 15(2) provides that a document must be lodged with the Commission by one of a number of means including sending the document by post to an office of the Commission. 

1. Section 394(3) provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(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. Here, the reason for the delay was the time taken for Australia Post to deliver the envelope which contained the application. The dismissal took effect on 5 April 2024. Ms. King had until 26 April 2024 to lodge her application. She posted it to the Commission on 12 April 2024. It took 18 days for the application to be delivered. The reason for the delay was the length of time it took Australia Post to deliver it. The Respondent accepted that this was an unusual delay.

1. Ms King became aware of the dismissal on 5 April 2024. She took steps to challenge the dismissal by contacting the Commission for assistance and obtaining a copy of the form. She printed it, completed it and put it in the post. Focused contends that the prejudice it suffers if the extension is granted is that it will be required to defend a case that is otherwise statute barred. On the face of the application, Ms. King’s unfair dismissal case has some merit. Determining the merits will require consideration of evidence as to the surrounding facts. As the circumstances are unusual, I do not see that the question of fairness between Ms. King and others in a similar position arises.  

Consideration

1. Focused opposes the application being granted an extension of time, contending that while the circumstances of an 18-day delay in the delivery of post is unusual, it is not uncommon for post to be delayed and Ms. King took some risk in entrusting the lodgment of her application to the postal system.

1. I was referred to cases where the Commission has refused to extend time where the time limit is not met because an application was still in the post at the time lodgment was required. While each case is to be determined on its own circumstances, I note that those cases involved applicants posting their applications within a short time before the statutory time limit expired and/or from places remote from the Commission’s offices. That is not the case here. Ms. King posted her application some 12 days before the time limit expired from a place only 2 hours’ drive from the Commission’s premises.

1. I find the 18-day delay in the delivery of the application to constitute exceptional circumstances. Focused claims that it will be prejudiced by an extension of time as it will be required to expend time and resources in defending the claim. This is not sufficient to outweigh the prejudice that Ms. King will suffer because of the unusual delay in Australia Post delivering her application. Ms. King followed the instructions on the Commission form. She lodged the form in accordance with the Commission rules. The delay was caused by Australia Post. It should not be visited upon Ms. King.

Conclusion

1. In accordance with s. 394(3) of the Act, I extend the time in which Ms. King may apply to the Commission for unfair dismissal remedy to 30 April 2024.

DEPUTY PRESIDENT

Appearances:

Ms Rebecca King (Applicant)

Mr Troy Plummer (Lawyer for the Respondent)

Hearing details:

By Video using Microsoft Teams at 2:00pm AEST on Thursday 6 June 2024.

Printed by authority of the Commonwealth Government Printer

<PR776391>