Rebecca Morley v Larrakia Bilirra Group Pty Ltd

[2024] FWC 1243

[2024] FWC 1243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Morley
v

Larrakia Bilirra Group Pty Ltd

(U2024/4339)

DEPUTY PRESIDENT COLMAN MELBOURNE, 13 MAY 2024

Unfair dismissal application – whether to extend time – application dismissed

1. Rebecca Morley (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The application stated that the dismissal occurred on 17 March 2024. At the determinative conference, the applicant stated that her dismissal took effect on 13 March 2024, because on that day her employer sent her a message purporting to accept her resignation, when she had not in fact resigned. I proceed on the basis that the dismissal occurred on 13 March 2024. The 21-day period therefore ended on 3 April 2024. The application was lodged on 16 April 2024, and was out of time. In order for her application to proceed, the applicant requires the Commission to grant an extension of time.

1. The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression found in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in ss 394(3)(a) to (f): the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position.

1. As to the reason for delay (s 394(3)(a)), the applicant said that she had had a breakdown due to bullying and harassment at work. She submitted a certificate of incapacity from a Dr Kannangara which stated that she was not fit for employment from 21 March 2024 to 11 April 2024, and that the diagnosis was ‘mental health distress aggravated during work’. She submitted a further certificate from the same doctor indicating no capacity for employment from 12 April 2024 to 2 May 2024. However, while I accept that the applicant was unwell over this period and was not fit for employment, I do not accept that she was prevented or seriously impeded from lodging an unfair dismissal application. For one thing, despite her incapacity for work, she did in fact lodge an unfair dismissal application. For another, incapacity for work does not necessarily imply incapacity to undertake other tasks, such as lodging a form F2. Very little is required in order to lodge this brief form. I am not persuaded that there was a good or acceptable reason for the delay in this case. This weighs against an extension of time.

1. As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following. First, the applicant does not contend that she became aware of the dismissal after it took effect (s 394(3)(b)). This is a neutral factor. I accept that the applicant took other action to dispute her dismissal by protesting to the employer (s 394(3)(c)). This weighs in favour of an extension. There is no prejudice to the employer (s 394(3)(d)). I consider this to be a neutral factor. If it should weigh in favour of an extension, I afford it little weight. And in my view there are no matters that are relevant to the question of fairness between the applicant and other people in a similar position (s 394(3)(f)).

1. As to the merits (s 394(3)(e)), the applicant said in her F2 application that she was working 12 to 16 hours a day and being treated unfairly at work, and that her manager told her that she would be dismissed if she lied to him. In frustration, she messaged her manager and said that she would quit, but she did not submit a formal letter of resignation, nor did she receive formal notification of her dismissal. The applicant said that she had been bullied and harassed and forced out of her position, and that she believed that she ought to still be employed by the respondent, and be on mental health leave. The respondent submitted that the applicant resigned in a telephone conversation with her manager on 12 March 2024 and was therefore not dismissed. It denied that she had been subjected to bullying. The merits of this application would depend on factual findings made at the final hearing. Based on the information before me, I consider the merits to be a neutral consideration.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. I accept that the applicant has been in poor mental health, but this is not an exceptional circumstance, nor are the other matters referred to by the applicant exceptional, either individually, or when they are considered together. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

R. Morley for herself
J. Kinder for the respondent

Conference details:

2024
Melbourne
13 May

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