Sheneica Baldacchino v Western Health

[2024] FWC 3307

[2024] FWC 3307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sheneica Baldacchino
v

Western Health and another

(C2024/7810)

DEPUTY PRESIDENT COLMAN MELBOURNE, 28 NOVEMBER 2024

Application under s 365 made out of time – application dismissed

1. Sheneica Baldacchino has made an application under s 365 of the Fair Work Act 2009 (Act). The application was lodged outside of the 21-day period required by s 366(1)(a). Ms Baldacchino seeks an extension of time under s 366(1)(b). The Commission can only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 366(2)(a) to (e).

1. In October 2021, Ms Baldacchino commenced a period of absence following a WorkCover claim for a psychological injury. Western Health submitted that by letter of 9 June 2023, it dismissed her on the ground that she could not perform the inherent requirements of her position. Ms Baldacchino states, and I accept, that she did not receive the letter of 9 June 2023 until 18 September 2024, and that this was when she learnt that she had been dismissed. For its part, Western Health was not able to produce any evidence that the letter of 9 June 2023 was sent to Ms Baldacchino prior to 18 September 2024. Ms Baldacchino submits that her dismissal took effect on 18 September 2024 because this was the date on which she learnt about the letter of 9 June 2023. I agree. The dismissal took effect when it was communicated to Ms Baldacchino. The 21-day period therefore ended on 9 October 2024. However, the application was not lodged until 31 October 2024.

1. As to the reason for the delay (s 366(2)(a)), Ms Baldacchino said that she was waiting for further information to be provided from Western Health about how the termination letter was allegedly provided to her, and that she had engaged a lawyer to do this. She said that Western Health took time to respond to her lawyer and that this caused delay in lodging her application. Ms Baldacchino also stated that she has a mental health injury for which she is obtaining treatment. I am not persuaded that these matters provide a good reason for the delay in lodging the application (i.e. the period from 10 October to 31 October 2024). I note that Ms Baldacchino did not allege that her lawyer had been at any fault. And in the present matter, Ms Baldacchino is representing herself. This is not a case of representative error causing the delay. I do not accept that Western Health caused the delay because Ms Baldacchino did not need to wait for further information about the letter of 9 June 2023 in order to lodge her claim. She could have simply stated that she only heard about the dismissal on 18 September 2024. Indeed, that is what she did say in her application when she eventually filed it. Further, I am not persuaded that Ms Baldacchino’s mental health prevented or seriously impeded the timely lodgement of the application. She was able to successfully lodge the application herself but did so outside the 21-day period. I accept that Ms Baldacchino was unaware that she was able to bring a s 365 application until she finally did so, but unawareness of the law is not a good reason for delay. There is ample explanatory material available to the public on the Commission’s website. The reason for the delay weighs against an extension of time.

1. As to the other mandatory considerations, Ms Baldacchino took action to dispute her dismissal by requesting further information from Western Health about why it claimed to have dismissed her on 9 June 2023 (s 366(2)(b)). This weighs marginally in favour of an extension of time. There is no evidence of any prejudice to the employer (s 366(2)(c)), nor are there any matters relevant to the question of fairness between Ms Baldacchino and other persons in a like position (s 366(2)(e)). I assess these matters as neutral factors.

1. As to the merits of the application (s 366(2)(d)), Ms Baldacchino indicated in her application that she believes she was dismissed because of her absence from work due to illness or injury. At the hearing, Ms Baldacchino stated that she had not had a fair opportunity to discuss her ongoing employment with the respondent. Western Health submits that Ms Baldacchino had been on leave of absence since late 2021 and that it eventually terminated her employment because she was not able to return to work and do her job as an administrative assistant. Based on the material before the Commission, I consider that the merits of Ms Baldacchino’s application are weak. The reason for dismissal appears to me to have been a legitimate one: Ms Baldacchino was absent for a very long period of time and was unable to do her job. I appreciate that Ms Baldacchino believes that her dismissal was unfair, but a claim under s 365 is not concerned with whether a dismissal was unfair: it alleges that the dismissal was in contravention of Part 3-1 of the Act. The application contains a reference to s 352 (termination because of temporary absence due to illness or injury), but regulation 3.01(5) appears to me to preclude a claim based on this provision in the present circumstances.

1. Taking into account the matters in s 366(2), I am not satisfied that there are exceptional circumstances. While it is unusual that Ms Baldacchino did not become aware of her dismissal until long after the termination letter was sent, I do not consider this to be an exceptional circumstance, or one that has any logical bearing on whether to extend time, given that I have accepted that she only became aware of the letter on 18 September 2024. Poor mental health is also not an exceptional circumstance. Neither is a lengthy absence from work. My overall assessment of the circumstances of this case is that they are not exceptional, either when they are considered individually or together. But even if I had concluded that the circumstances were exceptional, I would nevertheless have declined to exercise my discretion to extend time, because the merits of the application are weak. I decline to grant an extension of time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Baldacchino for herself
Y. Roberts for Western Health

Hearing details:

2024
Melbourne (by telephone)
28 November

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