Sondra Lively v Gindaja Treatment & Healing Indigenous Corporation
[2022] FWC 1599
•23 JUNE 2022
| [2022] FWC 1599 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sondra Lively
v
Gindaja Treatment & Healing Indigenous Corporation
(U2022/5682)
| COMMISSIONER PLATT | ADELAIDE, 23 JUNE 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
The issue in question is whether I should exercise my discretion to allow Ms Sondra Lively a further period for her unfair dismissal application (Application) to be made against Gindaja Treatment & Healing Indigenous Corporation (Gindaja). At the conclusion of the Hearing held on 22 June 2022, I dismissed Ms Lively’s unfair dismissal application. The reasons for this Decision are set out below.
Background
Ms Lively lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Gindaja which her form F2 Unfair Dismissal Application advised took effect on 31 January 2022.
The application was lodged by Ms Lively on 24 May 2022, and as such, was made 92 days out of time.
On 1 June 2022, the Applicant sent an email to the Commission with reasons as to why her application had been filed out of time.
On 2 June 2022, I issued directions and advised that the extension of time issue would be considered at a Hearing, by teleconference, on 16 July 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Acknowledging that Ms Lively had provided reasons for the late lodgement in her Form F2 Application and by email on 1 June 2022, she was provided with further opportunity to file material addressing the factors of s.394(3) of the Act. The Applicant did not file any further material.
On 6 June 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal occurred on 31 January 2022 and pressed the jurisdictional objection that the application was lodged out of time. The Respondent did not file any evidence or written submissions in respect of the extension of time issue.
Hearing
A Hearing was conducted by way of teleconference on 22 June 2022. A sound file record of the teleconference was kept. Ms Lively represented herself at the Hearing, whilst Ms Sue Blake, a paid agent, was granted permission unopposed to represent the Respondent on the basis of s.596(2)(a) – complexity and efficiency.
Ms Lively gave evidence at the Hearing and was cross-examined. Her position is summarised as follows:
· Ms Lively had been on a period of unpaid leave from the Respondent since June 2020 and was due to return to work on 4 January 2022.
· In late November 2021, the Respondent began discussions with the Applicant surrounding the requirement for the Applicant to be vaccinated against COVID-19 to attend work as a result of a Queensland State Government Direction (COVID Direction).
· As a result of health concerns, the Applicant was unable to comply with the COVID Direction such that she could return to the workplace.
· On 31 January 2022, the Respondent sent a letter in which it claimed to “accept (the Applicant’s) resignation” as a result of her inability to attend the workplace.
· The Applicant understood at the time of receiving the letter on 31 January 2022 that the effect of the letter was that her employment had ceased.
· Whilst the Applicant understood that her employment with the Respondent had ceased on 31 January 2022, the Applicant was confused by the characterisation of the cessation, given that she was clear that she had not resigned from her employment.
· On 7 February 2022, the Applicant emailed the Respondent acknowledging the receipt of the termination letter but challenging the assertion that she had resigned. In this email, the Applicant states:
“I am not disputing or challenging the outcome of employment status by Gindaja.”
· The Applicant did not receive a reply to her email of 7 February 2022.
· The Applicant sent a follow-up email to the Respondent on 22 April 2022 requesting a separation certificate.
· The Applicant received a separation certificate from the Respondent on 23 May 2022. The separation certificate stated that the Applicant had resigned voluntarily from her employment with the Respondent on 31 March 2022.
· Upon receiving the separation certificate which stated that she had resigned, the Applicant decided to lodge an unfair dismissal application, which she did on 24 May 2022.
· The Applicant contends that the reason for the delay in filing her application was her confusion as to the characterisation of the cessation of her employment, and the failure of the Respondent to provide clarification until they sent her the separation certificate on 23 May 2022.
The Respondent did not make any submissions or provide evidence, but noted at the Hearing that the characterisation of the cessation of employment as a resignation was an administrative error on the part of the Respondent. It is unfortunate that the Respondent characterised what is clearly a dismissal at its initiative as a resignation. I do not accept this this was an administrative error. At the Hearing, the Respondent stated that it would provide the Applicant an amended separation certificate which properly characterised the cessation of employment as a dismissal.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6] It is not in dispute that the application was filed 92 days out of time.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The only explanation for the delay provided by the Applicant was that she believed that she had not resigned, and she was waiting for a reply from the Respondent to the email sent on 7 February 2022 confirming that she had not resigned.
The delay in filing is lengthy. The Applicant confirmed at the Hearing that she understood at the time that the effect of the letter on 31 January 2022 was that her employment had ceased. Whilst the mischaracterisation of the cessation of employment as a resignation was incorrect and the failure of the Respondent to communicate with the Applicant was unfortunate, it did not prevent her from filing an unfair dismissal application. Any unfair dismissal application filed could have disputed both the merits and the characterisation of the cessation of employment.
In my view, the Applicant has not provided a credible reason for the delay in filing her application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
At the Hearing, Ms Lively confirmed that she was aware of the cessation of her employment on the date it occurred. Whilst confused as to the characterisation of the cessation, there was no doubt that she was no longer employed by the Respondent.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]
The Applicant did not take any action to contest the dismissal outside of lodging the unfair dismissal application, and this factor is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[11] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[12]
There is no submission that the granting of an extension of time represents prejudice to Gindaja, and as such this is considered a neutral factor.
Paragraph 394(3)(e) - 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 as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[13] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The Application has been dismissed.
COMMISSIONER
Appearances (by telephone):
S Lively, the Applicant
S Blake for the Respondent
Hearing details:
2022.
Adelaide:
June 22.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
[7] 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]
[8] [2016] FWCFB 349
[9] [2018] FWCFB 3288 at [35]-[45]
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[11] Ibid
[12] Ibid
[13] [2016] FWCFB 6963
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