Ricki Mitchell v Taree Indigenous Development and Employment
[2023] FWC 2433
•20 SEPTEMBER 2023
| [2023] FWC 2433 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ricki Mitchell
v
Taree Indigenous Development And Employment
(U2023/6960)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 20 SEPTEMBER 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
This decision concerns an application by Ms Ricki Mitchell (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Taree Indigenous Development & Employment Ltd (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
The unfair dismissal application was lodged on 29 July 2023.
Section 394(2) of 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 s 394(3). The Applicant contends that she was dismissed and her dismissal took effect on 30 June 2023. The Respondent denies that it dismissed the Applicant and says that the Applicant’s employment with the Respondent came to an end by the effluxion of time on 30 June 2023. On the basis that the alleged dismissal took effect on 30 June 2023, the period of 21 days ended at midnight on 21 July 2023. The application was therefore filed 8 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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.[5]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3
Relevant facts
By contract dated 16 January 2023, the Applicant was employed on a part-time, fixed term written contract which provided that the Applicant’s contract and employment would terminate automatically by the effluxion of time on 30 June 2023.
By letter dated 19 June 2023, which the Applicant says she received on 27 June 2023, the Respondent reminded the Applicant that her “fixed term contract is coming to an end and will cease on 30th of June 2023”.
On 26 June 2023, the Applicant filed an incomplete general protections application with the Commission to deal with a dispute involving a dismissal (Form F8).
At 1:16pm on 27 June 2023, the Applicant sent a text message to Ms Zoe Brasington, Community Services Manager, in the following terms:
“thanks for the letter in the mail, in fairwork nsw it says i am supposed to get a warning letter first, and the letter is supposed to be delivered in person, you will be hearing from my lawyer”
Ms Brasington responded to the Applicant by sending her a text message in the following terms:
“Hi Ricki,
Your contract is a fixed term contract. It has an end date of 30th of June 2023. It is not a letter of termination. As it states in your contract, it will end on that date. I will send you a copy if you do not have one. As a courtesy Uncle John sent you a letter. As you are aware I was trying to have a sit down discussion with you but you did not turn up to these attempts or make yourself available.
Please call Fair Work if you need clarification on this matter. We thank you for your service and contribution to TIDE…”
On 29 June 2023, the Applicant filed a completed general protections application for the Commission to deal with a dispute involving a dismissal (Form F8).
On 6 July 2023, the Applicant had a telephone conversation with an employee of the Commission in relation to her general protections application for the Commission to deal with a dispute involving a dismissal. It was explained to Ms Mitchell that her general protections application involving a dismissal could potentially be objected to by the Respondent on the basis that the application was premature because it was filed before the alleged dismissal took effect. It was further explained to Ms Mitchell that she could choose to continue with her current application or she could discontinue it and relodge a new application within 21 days of the dismissal taking effect. Ms Mitchell confirmed that she would like to discontinue her current application and relodge a new application. It was explained to Ms Mitchell that if she did discontinue her current application then it could not be reopened. Ms Mitchell said she was okay with that. Ms Mitchell also informed the employee of the Commission that she would relodge a new application on Monday, 10 July 2023. Ms Mitchell was told that if she left it until after 21 days from the dismissal taking effect, she may be classed as out of time, so she should make sure to file her new application as soon as possible. Ms Mitchell was also provided with information concerning where to access the Workplace Advisory Service through the Commission’s website.
In her unfair dismissal application, the Applicant gave the following explanation for her delay:
“Because of my mental health status, and appointments with a psychologist and Work cover insurance interviews.”
The Applicant gave a further explanation for her delay in her email to the chambers of Vice President Catanzariti on 31 August 2023:
“The reason behind my late application is because I had appointments with psychologist and psychiatrist because I was dealing with very bad anxiety and depression and insomnia.”
The Applicant provided the Commission with a letter from her psychologist dated 8 September 2023. It states:
“To whom it may concern,
As the treating psychologist under Workcover for Ms Ricki Mitchell I am writing this letter to confirm that Ms Mitchell has had a number of appointments with me in the past few weeks and has presented with elevated levels of anxiety and stress with low mood.
Ricki has also reported having various appointments with caseworkers from EML, the insurance company, and doctors’ appointments as a result of the termination from her work place. As a result, the culmination of all of these appointments in addition to a marked deterioration in her mental health, contributed to her late application to Fair Work Australia. Could you please provide some leniency in the matter as a result of the above factors being the reasons for the delay in her application.”
The Applicant also relied on a letter from Ms Angie Fernance, a previous employee of the Respondent, in the following terms:
“To whom it may concern,
My name is Angie Fernance, and I am a previous worker at TIDE, my role was the PaCE (Parenting & Children’s Engagement) Coordinator and Ricki Mitchell was my colleague since November 2022.
I have been engaging with Ricki since her departure from TIDE, and she was very distressed when she received the termination letter in the mail 2 days prior to her last day at TIDE. Ricki really enjoyed her job as Family Caseworker, she felt like she was making a difference in her community as a community worker, and I witnessed her on the job, and she was thriving and happy.
When she worked her last day on June 29, I saw her, and she was so sad and very angry at the decision of having no job at TIDE anymore.
1 week went by and she called me asking how she can resolve what TIDE had done as there was NO reason for her termination, and she was mentioned she wasn’t in a good place at the time, but she did mention that she had appointments with the Psychologist and a Psychiatrist, and they were happening every fortnight, and she still was very upset at this time.
I remember Ricki calling me discussing looking at FairWork and wanting to get some clarity around helping her understand how can TIDE issue her with a letter of dismissal in the mail on June 27th, 2023, and she only had 2 Days’ notice? This bought so much stress on Ricki as, I know she has a mortgage and daycare bills for her 2-year-old son, she was falling into depression fast as her finances were being jeopardized by TIDE’s letter.
I 100% support Ricki on her decision and I wish I had the knowledge of FairWork as well because I, too would have make a complaint about my departure from TIDE. TIDE is a toxic place to work hence why I quit, and so many other left the place due to similar reasons.
Please do not hesitate to contact me on my mobile number below as I would like to help shed light on this situation.
I also, have another previous worker who is willing to be a witness to the actions above if need be.
Thank you”
In her oral evidence, the Applicant:
explained that she spoke to a representative from her workers’ compensation insurer, EML, on a number of occasions in July 2023 in relation to her workers’ compensation claim, which was accepted, and attending medical appointments in connection with her workers’ compensation claim;
stated that she attended appointments with her psychologist on 15 June 2023, 29 June 2023, 24 July 2023, 5 September 2023 and, in the period between late July 2023 and mid-August 2023, the Applicant had two telehealth appointments with her psychologist;
stated that she attended an appointment with her psychiatrist on 17 August 2023, at which time she was prescribed medication for social anxiety and panic attacks;
explained that in July 2023 she was worried about how she would pay her mortgage, child care fees and living expenses;
explained that she was busy in the period from 16 June to 11 July 2023 sorting out her mortgage with the assistance of the Salvation Army. By 11 July 2023, the Applicant had entered into a two-year fixed term agreement in relation to her mortgage repayments;
explained that there were times during July 2023 when she was not able to attend College to complete her studies, as she usually did on a Friday, in which event she notified the College that she was unable to attend;
stated that she spoke to her general practitioner, who suggested that she should go on to the Commission’s website for information;
stated that she spoke to her friend and ex-work colleague, Ms Fernance, on two occasions in relation to potentially lodging a claim in the Commission in relation to her dismissal. Ms Fernance did not know anything about the process of making a claim in the Commission. On the second occasion the Applicant spoke with Ms Fernance, Ms Fernance asked how the Applicant was going with her claim. Ms Mitchell then remembered that she had forgotten to file her new application in the Commission; and
explained that she did not work in her business in the period from 30 June 2023 until 29 July 2023.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. I accept that the Applicant suffered from elevated levels of anxiety and stress with low mood in the period following her dismissal. However, these conditions did not prevent the Applicant from making an initial general protections application to the Commission, speaking with an employee of the Commission on 6 July 2023 and making a decision to discontinue her current application with a view to making a new application within 21 days of her alleged dismissal taking effect, speaking with a representative of her workers’ compensation insurer on a number of occasions, liaising with a representative of the Salvation Army to sort out an arrangement in connection with her mortgage repayments, and notifying the College she attended each Friday when she was not able to attend. In the period between 30 June 2023 and 29 July 2023, the Applicant saw her psychologist once and potentially spoke to her psychologist in a telehealth consultation on a second occasion in late July 2023. The Applicant’s psychologist expressed the opinion that “the culmination of all of these appointments in addition to a marked deterioration in her mental health, contributed to her late application” to the Commission. The psychologist did not express any opinion that the Applicant was incapable, by reason of the deterioration in the Applicant’s mental health, of preparing or lodging an unfair dismissal application prior to 29 July 2023. I accept the Applicant’s evidence that she was very busy dealing with many things in her life in July 2023 and forgot to lodge her unfair dismissal application in the Commission until 29 July 2023. Although I have sympathy for the Applicant’s circumstances, I do not consider that she has provided an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 29 July 2023 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was made aware that her employment would cease on 30 June 2023 by the letter dated 19 June 2023, which the Applicant says she received on 27 June 2023.
I am therefore satisfied that the Applicant became aware of the cessation of her employment with the Respondent before the employment contract and employment relationship came to an end. Accordingly, this is a neutral consideration.
Action taken to dispute the dismissal
The Applicant took action to dispute her dismissal by sending her text message to the Respondent on 27 June 2023. She also lodged an earlier general protections application involving a dismissal in the Commission, which constitutes action to dispute her dismissal. These actions on the Applicant’s part to dispute her dismissal weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant was employed pursuant to an outer term contract which clearly stated that her employment with the Respondent would terminate automatically by the effluxion of time on 30 June 2023. The Applicant had an expectation that her contract would be renewed because she had been told by Uncle John and Ms Brasington that she was doing good work and should ask for a pay rise, but it was never represented to her that her contract would, or would not, be renewed. There is a dispute as to whether the Applicant had taken steps, or indicated that she would take steps, to obtain her Certificate IV qualification in Community Services, which was a requirement for the position, but the Respondent’s reason for not renewing the Applicant’s contract is not relevant in circumstances where her contract stated that her employment with the Respondent would terminate automatically by the effluxion of time on 30 June 2023 and there is no suggestion on the material before the Commission that the Applicant’s contract of employment was vitiated by any relevant factor.[6] The termination of a contract and employment relationship by the effluxion of time at the end of an outer term contract such as the one signed by the Applicant is not a dismissal.[7] For these reasons, I consider that the Respondent has a strong case to support its contention that the Applicant was not dismissed and therefore not unfairly dismissed.[8]
Having regard to all the circumstances, I consider the merits of the application to weigh against the proposition that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took steps to challenge her dismissal, the balance of the matters under s 394(3) are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms R Mitchell, on behalf of herself
Mr D Kensey, Workplace Relations Consultant of the Australian Federation of Employers and Industry, for the Respondent
Hearing details:
2023.
Newcastle (by telephone):
September 12.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75]
[7] Ibid
[8] Ibid
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