Rebecca Morris v Queensland Police-Citizens Youth Welfare Association
[2023] FWC 1782
•20 JULY 2023
| [2023] FWC 1782 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rebecca Morris
v
Queensland Police-Citizens Youth Welfare Association
(U2023/5104)
| COMMISSIONER DURHAM | BRISBANE, 20 JULY 2023 |
Application for an unfair dismissal remedy – whether to extend time – application dismissed?
On 9 June 2023 Ms Rebecca Morris (Ms Morris/the Applicant) made an application to the Commission for an unfair dismissal remedy. She contends that she was officially dismissed by Queensland Police-Citizens Youth Welfare Association (the Respondent) on 9 May 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 section 394(3). As the Applicant lodged her application on 9 June 2023, and the date of the dismissal was 9 May 2023, she was 10 days out of time.
In order for the application to proceed, Ms Morris requires the Commission to grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a Determinative Conference on 18 July 2023. The Applicant gave oral evidence and sought that the material they had already filed be received into evidence, excluding statements provided from people who were not present during the Determinative Conference.
Apart from the statements mentioned above, the entirety of the Applicant’s filed material was received into evidence, alongside the statement of Ms Lisa Ellis, Chief People and Culture Officer for the Respondent, tendered by the Respondent’s representative. Appropriate weight has been given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
All the material relied upon by both the Applicant and the Respondent has been taken into consideration.
Extension of Time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
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.
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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.[2]
Ms Morris raised several factors to explain the delay in lodging her application:
that she experienced significant impacts on her mental and physical well-being caused by stress relating to the dismissal by the Respondent; and
that she was compelled by her family obligation to travel to New Zealand for her mother-in-law’s traditional Māori unveiling; and
difficulties she had experienced in seeking legal advice.
With respect to the first argument, though it is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit. [3] In any event, Ms Morris has not provided any other substantive evidence, medical or otherwise to demonstrate that her condition during the relevant times would have incapacitated her to the extent that she was incapable of making an application within the prescribed time period.
No further explanation was provided with respect to the Applicant’s capacity during the 21 days after 9 May 2023, nor any evidence to suggest that her condition prevented her from lodging her application within time.
Whilst I accept that the show cause process, and ultimately the dismissal would have been challenging for Ms Morris, and may well have caused her significant stress, such stress, shock, confusion and similar conditions are not exceptional circumstance in and of themselves.[4] On the basis of the information before me, I am not convinced that Ms Morris was medically incapacitated to the extent that she would have been incapable of lodging her application within the prescribed time period.
Turning to the Applicant’s second argument, Ms Morris submitted that one of the reasons for the delay in lodging her application was the need for her to travel to New Zealand to attend her Mother in Law’s traditional Maori unveiling.
During cross examination Ms Morris confirmed that she travelled to New Zealand on 31 May 2023, returning 6 June 2023. Given that the dismissal took place on 9 May 2023, the last day for Ms Morris to lodge her application within the prescribed period was 30 May 2023. Ms Morris also confirmed that the travel was pre-planned and that the tickets had been booked around three weeks before the travel.
Given that this travel was not urgent and that it took place after the 21 day period had passed, I do not consider that it provides a reasonable explanation of the delay.
With regards to the third argument, Ms Morris submitted that she had experienced difficulties in accessing legal advice and described having to talk to three different parties to get the advice she needed. In answer to direct questioning regarding this point, Ms Morris confirmed that the legal advice she had sought was with respect to the “show cause” process. Ms Morris also confirmed that she had not sought any additional legal advice after she had been dismissed. While no direct evidence was provided to suggest that Ms Morris had been provided any specific advice regarding her options if she was dismissed, it would seem reasonable to assume that, at the very least, she had the opportunity prior to her termination to ask questions about her rights and responsibilities as they related to any future claim for unfair dismissal. Having considered the evidence, I do not consider that Ms Morris’s difficulties seeking advice before the dismissal provide a reasonable explanation of the delay.
Considering all of the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
Evidence provided by both parties confirms that Ms Morris was suspended on full pay on 13 March 2023. Following an investigation she was provided the opportunity to “show cause” as to why she should not be terminated. After considering her response, which she provided on 5 May 2023, the Respondent terminated her employment on 9 May 2023. On the basis of the above, it is clear that not only did Ms Morris become aware of her formal dismissal on 9 May 2023, but she also had advance knowledge that it was a possible outcome. This consideration weighs against an extension of time in this case.
Action to Dispute the Dismissal
As explored above, Ms Morris’s dismissal followed a lengthy process which provided her with the opportunity to dispute the dismissal before a decision was made. It is noted however that no evidence was provided to indicate that Ms Morris took any steps to dispute the dismissal after it had taken effect. I have treated this matter as a neutral consideration.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration.
Merits of the Application
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 to be a neutral consideration in this case.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.
As there are no exceptional circumstances, no additional time can be allowed for Ms Morris to make her application. This means that Ms Morris is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
R. Morris for herself
S. McCartney for the Respondent
A. Discipio for the Respondent
L. Ellis for the Respondent
Hearing details:
2023
Brisbane
18 July
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[3] Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903 at [24].
[4] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [15].
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