Silvia Murphy v Australian Multicultural Community Services
[2025] FWC 643
•5 MARCH 2025
| [2025] FWC 643 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Silvia Murphy
v
Australian Multicultural Community Services
(U2025/1256)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 5 MARCH 2025 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application (Application) made by Ms Sylvia Murphy (Applicant) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The Applicant, who was employed by Australian Multicultural Community Services (Respondent), alleges she was dismissed on 13 January 2025. The Application was lodged on 5 February 2025. The Respondent raises a jurisdictional objection in its Form F3 that the Application was not made within the 21-day statutory period required by s 394(2)(a) of the Act.
Section 394(2) of the Act states an application for unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect; or within such further period as the Fair Work Commission (Commission) allows…’. The period of 21-days after the alleged dismissal ended at midnight on 3 February 2025. The Application was filed 2 days outside the 21-day period. The Applicant requests the Commission grant a further period for the Application to be made under s 394(3) of the Act.
The Application was listed for a Determinative Conference/Hearing (the Hearing) on 4 March 2025 to determine whether an extension of time to file the Application should be granted. In advance of the Hearing, the parties filed material in accordance with directions issued. At the Hearing, the Applicant appeared and gave evidence, while the Respondent was represented by Ms Alison Starkey, Manager – People and Culture, for the Respondent. Ms Starkey gave evidence and also called Ms Aneta Antczak, Senior HR Coordinator, to give evidence for the Respondent.
Background and evidence
The Applicant commenced employment with the Respondent as a casual Personal Care Worker on 4 September 2017. She transitioned to a part-time Personal Care Worker role on 14 November 2022, in which role she remained until the termination of her employment.[1] Ms Starkey states the Applicant’s performance and conduct was unacceptable during her employment and that she was subject to several disciplinary meetings and related processes. The various matters raised with the Applicant regarding her performance and conduct included; not undertaking her duties, working outside the scope of her responsibilities, breaching boundaries, borrowing money from a client and breaching documented policies and procedures.[2]
Ms Starkey provided the following summary of the Applicant’s disciplinary record;
·On 24 January 2024, a disciplinary meeting was held in relation to allegations that the Applicant was ‘working outside the scope of responsibilities’ and had engaged in a ‘breach of boundaries’. The Disciplinary Meeting Documentation records that the Applicant was to be ‘given a final opportunity with benefit of the doubt’ after having received two previous written warnings in 2023.[3]
·On 13 June 2024, a disciplinary meeting was held in relation to allegations that the Applicant had overstepped professional boundaries, had engaged in gross misconduct by borrowing money from a client and had breached the terms of her position description. The Disciplinary Meeting Documentation records that the allegations were sustained, that the Applicant received a third and final warning and was advised that any further breaches of policies/procedures would result in the termination of her employment.[4]
·On 19 December 2024, a disciplinary meeting was held at which a number of matters were discussed including the following: improvements from the last disciplinary meeting, compliance issues, professional boundaries, breaches in code of conduct, uniform standards, availability, discussions in front of client – including a voice message received, medication given to clients and wound dressing. The meeting concluded with the Respondent advising it would consider the Applicant’s responses and that she would be stood down on pay pending the outcome.[5]
The 19 December 2024 disciplinary meeting arose from a telephone voice message left by the Applicant on 13 November 2024 while she was at a client’s home. The fact that the Applicant called regarding scheduling of client services while at the client’s house was in itself atypical as such discussions are usually conducted in the office according to Ms Starkey. More concerningly from the Respondent’s perspective, the recorded message inadvertently captured the Applicant talking to the client in an increasingly agitated. Ms Starkey gave evidence that she had listened to the 13 November 2024 voice message recording and had played it to the Applicant during the 19 December 2024 meeting. Ms Starkey confirmed the recorded voice message included the Applicant getting angry and yelling at the client during an exchange.
The Applicant gave evidence that the events that led to the 13 November 2024 voice message recording provide an important context, being the cancellation of a client’s shift, agreed to by the Applicant with her supervisor for which she (the Applicant) was subsequently blamed for by the client. She denied calling the Respondent from the client’s residence on 13 November 2024 regarding the shift cancellation, discouraged the client from doing so and only took the phone from the client because she says she was asked to. When questioned on whether her emotions had escalated during an exchange with the client as alleged by the Respondent, the Applicant conceded she had become agitated during the recorded exchange.
The Respondent concluded following its investigation that the Applicant’s conduct constituted serious misconduct and warranted her dismissal. This was communicated to the Applicant in a meeting held on 13 January 2025 at which a support person accompanied the Applicant. The Applicant was also notified in writing of her dismissal on the same day in the following terms;
“…
I am writing to formally notify you of the termination of your employment with AMCS, effective immediately. This decision follows a meeting held on 19 December 2024, during which allegations of serious misconduct were discussed.
Since that meeting, you have been on paid leave while AMCS conducted a further risk assessment. After careful consideration, AMCS has decided to terminate your employment in accordance with the AMCS Support Worker Policy and Procedures Manual December 2024. We believe continuing with your employment poses a significant risk to the reputation of AMCS.
As part of this process:
·AMCS will provide you with a further two weeks’ pay in lieu of notice.
·Your final pay, including any accrued leave and other entitlements, will be processed and provided to you by Friday, 24 January 2025.
Please ensure that all AMCS property and equipment, including mobile phone, uniforms, first aid kits, PPE, and safety switches, is returned by Friday, 17 January 2025. If you have any questions regarding your final pay or the return of AMCS property and equipment, please contact Tamara Oakley on XXXX XXX.
You will also continue to have access to the Employee Assistance Program (EAP) to provide you with any support you may need during this transition.
We appreciate your contributions to AMCS during your time with us and assure you this decision was not made lightly. We wish you all the best in your future endeavours.
…”[6]
On 16 January 2025, the Respondent provided the Applicant with a Letter of Service (First Letter of Service) at the request of the Applicant.[7] The First Letter of Service simply states the Applicant was employed by the Respondent as a Personal Care Worker from 4 September 2017 to 13 January 2025.[8]
On 26 January 2025, the Applicant emailed Ms Antczak in the following terms;
“Hi Aneta
I worked for the organisation for seven years.
During the last three years I have been subjected to bullying and harassment from the
SWO that was acting at the time.
I was vulnerable because the organisation does not support the Support Worker but the “ ones above “ and for that reason they use that vulnerability to constantly rise complaints against me.
I have been dedicated and passionate about my work.
I did a lot of training in dementia.
I bought a lot of material to work with clients
I tried to give quality care to the people I care for.
However I have been a victim of discrimination and I have accumulated so many “disciplinary meetings “ that I can prove to you that was above the mental well-being of any person that is subjected to such experience.
I was terminated on the bases of “ misconduct “ and I am on the process to investigate the “ recording “ , that was presented to me at the last meeting. I am not able to apply for a job and ask for references, referees with the organisation.
I need to apply for work again as I am not financially secured.
I have no choice than to claim “ unfair dismissal “, unless you are willing to support my applications as I need experience, references, referees to obtain work again.
Please reply to my email so I know what steps to take next.
Your sincerely
Silvia Murphy”[9]
At 1.19pm on 28 January 2025, Ms Antczac replied to the Applicant’s email of 26 January 2025 in the following terms;
“Dear Silvia
Thank you for reaching out. While your time at AMCS concluded due to specific circumstances, we remain committed to supporting you in finding suitable employment opportunities.
We are willing to provide a general reference for your future job applications. Please let us know if there are specific roles or industries you are applying for, so we can tailor our references to highlight your strengths and contributions during your time with us.
We wish you all the best in your job search and hope you find a role that aligns with your skills and aspirations.
Kind Regards
…”[10]
At 6.43 pm on 28 January 2025, the Applicant responded to Ms Antczak via email. In her response the Applicant continued to complain of the injustice she had suffered by her dismissal and pressed the Respondent for references. In doing so, she relevantly stated as follows;
“…
I can start over finding work in the industry that I enjoy only if you offer me positive references.
I need references and a referee from the organisation that I gave seven years of my life in full
If I apply to jobs are you willing to give positive feedback?
I can then start over and forget the injustice that your organisation has done.
Silvia Murphy”[11]
Independently of the Applicant’s post dismissal engagement with the Respondent, she also contacted the Office of the Australian Information Commissioner (OAIC) regarding her concern about an alleged privacy breach arising from the recorded voice message. First contact by the Applicant with the OAIC appears, based on an email thread produced by the Applicant, to have been made prior to 23 January 2025. The Applicant states she was advised by an OAIC representative during a telephone conversation on 29 January 2025 that the OAIC was unable to assist her with her concerns. She says it was at this point she resolved to make an unfair dismissal application.[12]
On 5 February 2025, the Applicant filed her unfair dismissal application. In doing so the Applicant agreed that she had gone onto the Commission’s website using her phone and completed the unfair dismissal on-line application form. When questioned on whether she had read any of the information on the Commission’s website on the unfair dismissal application process and 21-day filing period, the Applicant conceded that she had not read any of the information. When further questioned, the Applicant also conceded that she did not contact and seek advice or support from her union in the wake of her dismissal.
On 11 February 2025, the Applicant again emailed Ms Antczak requesting two referees for a job application. In requesting the two referees the Applicant stated ‘I would like to leave all behind if I am able to obtain work again. I need two referees for a job application. Please let me know your decisions’.[13] On 12 February 2025, the Respondent provided the Applicant with a more expansive Letter of Service (Second Letter of Service) that included details of the Applicant’s responsibilities in her role.[14] The Applicant then replied to Ms Antczak following receipt of the Second Letter of Service on 12 February 2025 in the following terms;
“I applied for work with Omnicare.
I will find out if that letter is helpful.
I need a job.
I don’t want litigation but if I can’t get work, what choice do I have?
Silvia”[15]
Should an extension of time be granted?
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.’ 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.[16] 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.[17]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) of the Act 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; 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.
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 now consider these matters in the context of the Application.
Reason for the delay
The Application needed to have been made by midnight on 3 February 2025 to be within the 21-day filing period. The delay is the period commencing immediately after that time until 5 February 2025, although circumstances arising prior to 3 February 2025 may be relevant to the reason for the delay.[18]
The reason for the delay is not required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[19] An applicant does not need to provide a reason for the entire period of the delay, however, the absence of explanation for any part of the delay usually weighs against an applicant in assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay usually weighs in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[20]
The Applicant states that she is self-represented, was not aware that weekends counted for the purpose of meeting the 21-day filing deadline and also that she was unfamiliar with the process. The Applicant also relies on her efforts to secure assistance from the OAIC during the relevant period in relation to her privacy breach concerns over the 13 November 2024 voice message recording. The Applicant says the combination of these factors explain the Application filing delay.
Dealing firstly with the Applicant’s claim the delay in filing the Application was due in part to unfamiliarity or ignorance regarding the Act. That explanation must be rejected as it is well established that ignorance of the statutory time period does not weigh in favour of a finding of exceptional circumstances. The Full Bench in Nulty v Blue Star Group Pty Ltd[21] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter on appeal before it;
“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances.” In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
As to the Applicant’s submission that she is self-represented, this must also be rejected as an explanation for the delay in filing the Application. The Commission provides various on-line resource on its website[22] including benchbooks for Unfair Dismissal and resources for self-represented applicants. The Commission also has a Workplace Advice Service which allows unrepresented applicants to receive free legal advice. Information regarding the statutory time period is readily available on the Commission website. The Applicant’s case is not assisted by her concession that while she completed her on-line Application by going to the Commission’s website, she failed to read any of the supporting information on the website at the time of filing the Application.
Turning to the Applicant’s contact with the OAIC, it is unclear when the Applicant first made contact with the OAIC although it appears from the email thread that it was sometime prior to 23 January 2025. To the extent that the Applicant may have been confused about where to obtain support in relation to her dismissal, any confusion about whether the OAIC could assist the Applicant was resolved on 29 January 2025 when the Applicant was advised in a telephone conversation that the OAIC were unable to assist her. At that point, the Applicant was still able to file her application within the 21-day period that ended at midnight on 3 February 2025. The Applicant’s contact with the OAIC does not provide an acceptable reason for the two-day filing delay.
It follows from the foregoing that I am not satisfied that the Applicant has provided an acceptable reason for any part of the delay. This weighs against a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I find the Applicant became aware on 13 January 2025 of her dismissal which took effect on that day. She therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
Following her dismissal the Applicant pressed the Respondent for the provision of referees to assist her efforts to secure alternate employment. She did this in a series of emails between 26 January and 11 February 2025. The tenor of the emails from the Applicant to Ms Antczak, apart from her complaints about her treatment by the Respondent, was that if she was not supported by the Respondent through the provision of the requested referees she may be forced to proceed with the Application filed on 5 February 2025.
While the Applicant sought references from the Respondent, that did not constitute a challenges to her dismissal. It is therefore not apparent that the Applicant took any action to contest her dismissal after it took effect on 13 January 2025, other than lodging the Application. This weighs against a finding of exceptional circumstances.
Prejudice to the employer
The Application was filed 2 days outside of the 21-day period. The Respondent did not contend and nor do I consider that it would suffer prejudice if an extension of time to file the Application was granted. In these circumstances I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[23] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[24] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant disputes the prior warnings issued to her and argues that the conduct that led to those warnings arose from her efforts to assist her clients. She also contends that in relation to the matter that led to her dismissal, she was ‘framed’ over the voice message recording. She further submits that her dismissal was unfair in all the circumstances. That is because her dismissal has left her financially insecure; she begged the Respondent to keep her job and the ‘misconduct’ finding prevents her from securing alternate employment. Compounding the consequences of her dismissal is her inability to obtain references from the Respondent after seven years of employment during which she also claims to have been bullied and subject to discrimination.
The Respondent rejects the Applicant’s claim that she was framed in relation to the 13 November 2024 recorded voice message or that the prior warnings were unjustified. It submits that it reached a conclusion that the Applicant’s conduct on 13 November 2024 when considered along with her prior misconduct and warnings warranted her dismissal having particular regard to the interests of the Respondent’s aged and vulnerable clients. It further submits that the disciplinary process was carried out in a procedurally fair manner in that the Applicant was accompanied by a union representative at the 19 December 2024 meeting, she was placed on paid leave following the meeting on 19 December 2024 to allow the Applicant an opportunity to access EAP and she was accompanied by a Senior Support Worker at the follow-up meeting held in January 2025
While the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, there is a significant history of performance management and misconduct on the part of the Applicant which led to disciplinary action being taken against her. This included a third and final warning issued on 13 June 2024. The prior warnings along with the conduct of the Applicant on 13 November 2024, which she has not denied, provides a strong prima facie defence to the Application. On the limited material before me the Applicant’s case does not appear strong. This weighs against a finding of 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. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the required matters under s 394(3), and all of the matters raised by the Applicant outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
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) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Silvia Murphy, Applicant.
Alison Starkey for the Respondent.
Hearing details:
2025.
Melbourne:
March 4.
[1] Exhibit R1, Witness Statement of Aneta Antczak, dated 20 February 2025, at [6]
[2] Exhibit R2, Witness Statement of Alison Starkey, dated 20 February 2025, at [8]
[3] Exhibit R2, Annexure 1, Disciplinary Meeting Documentation 24 January 2024
[4] Exhibit R2, Annexure 2, Disciplinary Meeting Documentation 13 June 2024
[5] Exhibit R2, Annexure 4 – Disciplinary Meeting Documentation 19 December 2024
[6] Exhibit R2, Annexure 6, Letter of termination, dated 13 January 2025
[7] Exhibit R2, at [9]
[8] Exhibit R1, Annexure 1, Letter of Service, provided 15 January 2025
[9] Exhibit R1, Annexure 2, Email from Applicant dated 26 January 2025
[10] Exhibit R1, Annexure 3, Email from Aneta Antczak dated 28 January 2025
[11] Exhibit R1, Annexure 4, Email from Applicant, dated 28 January 2025
[12] Exhibit A6, Email exchange between Applicant and Office of the Australian Information Commissioner, dated 28-29 January 2025
[13] Exhibit R1, Annexure 5, Email from Applicant, dated 11 February 2025
[14] Exhibit R1, Annexure 6, Letter of Service, dated 12 February 2025
[15] Exhibit R1, Annexure 8, Email from Applicant, dated 12 February 2025
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[17] Ibid.
[18] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[20] Ibid at [40].
[21] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
[22] See Fair Work Commission website at Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[24] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].
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