Susannah Koch v Families Tasmania Inc
[2023] FWC 2101
•23 AUGUST 2023
| [2023] FWC 2101 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Susannah Koch
v
Families Tasmania Inc
(U2023/6560)
| COMMISSIONER CIRKOVIC | MELBOURNE, 23 AUGUST 2023 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances – extension granted.
This is an edited version of a decision delivered ex tempore and recorded in transcript on 22 August 2023.
Introduction
Ms Susannah Koch (Applicant) commenced employment with Families Tasmania Inc (Respondent), in or around 9 June 2016. She was employed in the position of North and North West Regional Coordinator.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act). There is no dispute that the application was lodged on 18 July 2023.
In essence, the Respondent contends that the Applicant’s position was made genuinely redundant due to the loss of a grant in the Burnie region in Tasmania and that it complied with its consultation obligations under clause 8 of the Social, Community, Home Care, and Disability Service Award (SCHADS Award). The Applicant disputes this contention and says that she was unfairly dismissed.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
There is no dispute between the parties that the effective date of termination was 26 June 2023 and that the application for unfair dismissal was received by the Commission at 5.00pm on 18 July 2023. Based on a termination date taking effect on 26 June 2023, the application should have been lodged by no later than 17 July 2023.
The application was therefore lodged 1 day outside of the time prescribed. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
• the reason for the delay;
• whether the Applicant first became aware of the dismissal after the date it took effect;
• any action taken by the Applicant to dispute the dismissal;
• prejudice to the Respondent including prejudice caused by the delay;
• the merits of the application; and
• fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
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.
In essence, the Applicant cites the following reasons for the delay:
The effects of the events on her mental health, including that she suffered shock and distress.
She consulted her clinical psychologist Ms Susan Crave on 22 June 2023.
She experienced further stress in the weeks following her termination as her elderly parents who live in South Australia contracted COVID-19. Her mother, aged 80, is the full-time carer of her father, aged 81, who also suffers dementia. Further, on or about 13 July 2023, her father was hospitalised with complications leading to him becoming immobilised. On or about 18 July 2023, he was discharged into the care of her mother.
She only became aware that the Respondent had hired others and engaged outside organisations to fulfil her duties on 17 July 2023.
She had difficulty accessing appropriate support and information in a timely manner, including that she contacted the Fair Work Ombudsman on the afternoon of 17 July 2023. At this time, she was informed that she had just exceeded the 21-day unfair dismissal limit and referred her to Job Watch for advice.
The Respondent submits that:
The Applicant was expressly advised of the 21-day timeframe to lodge her application at a meeting on 23 June 2023. At this time, she indicated that she had not yet been able to obtain legal advice, she believed she had a legal case and that she had looked it up under the Act. This indicated that she was clearly alive to the possibility of a claim against the Respondent.
Even the most basic Google search for ‘redundancy’ arrives at the Fair Work Ombudsman website, alerting the Applicant to a 21-day time limit for filing an application with the Fair Work Commission.
In response to the Applicant’s assertion that she became aware that some of her duties would be outsourced to another organisation on 17 July 2023, there is no credible explanation for the delay in filing until 5.00pm 18 July 2023.
Contrary to the Applicant’s assertions, she had all of the information required to make an informed decision but elected not to act on that information until after the timeframe had passed.
Shock and distress of a dismissal does not constitute grounds justifying an extension of time. There is no evidence of any incapacity of the Applicant from the period of 26 June 2023 until 17 July 2023.
The health concerns of the Applicant’s parents do not constitute exceptional circumstances, noting that there is no evidence that the Applicant actually travelled to South Australia to provide support or care for her parents.
On the material before me, I find that the reasons for the delay are the Applicant’s mental health, including the health of her parents and the hospitalisation of her father, the difficulty of accessing appropriate support in a timely fashion, lack of familiarity with the process, and becoming aware of others fulfilling her duties on 17 July 2023.
I note that in considering whether there is an acceptable reason for delay, the delay required to be considered is the period beyond the 21-day statutory limitation period. The circumstances from 26 June 2023 must also inform the inquiry in assessing the credibility or the reasonableness for the delay given.
In considering the reason for the delay, I have taken into account the Applicant’s concession at hearing that she could have filed her application prior to 18 July 2023 and that she was told by Mr Clark of the 21-day time limit. That said, I accept the Applicant’s submission that she first became aware of the Respondent fulfilling her duties by others on 17 July 2023. I also accept that she contacted the Fair Work Ombudsman on the same day and was informed that she had just exceeded the 21-day time limit. In these circumstances, I accept her evidence that she acted promptly and filed her application by 5.00pm on 18 July 2023.
I also accept the Applicant’s explanation given at hearing that her comments made during the 22 June 2023 meeting as to pursuing her legal rights were made off-the-cuff and in response to a situation that was in the heat of the moment in difficult circumstances.
I accept the evidence of the Applicant that she was significantly distressed following the termination of her employment and that this contributed to her stress, mental health and wellbeing. I also accept her evidence that the illness of her elderly parents, including the hospitalisation of her father from 13 July 2023 to 18 July 2023 contributed to her state of mind.
For those reasons, I consider the Applicant has an acceptable reason for the delay in lodging her unfair dismissal claim. The reason for the delay weighs in favour of granting an extension of time.
b) Whether Applicant first became aware of the dismissal after the date it took effect
The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This does not weigh in favour of granting of extension of time.
c) Action taken by the Applicant to dispute their dismissal
The Respondent submits that other than asserting during the consultation process that the Applicant was “contemplating a range of legal options”, the Applicant took no steps to dispute the dismissal until 18 July 2023.
Although it can be inferred that the Respondent was on notice that the Applicant might dispute any termination, the Applicant's statements made during the consultation process and prior to the decision being made to terminate the Applicant’s employment do not constitute “action taken to dispute the dismissal”.
As the Applicant took no action to dispute the dismissal this factor does not weigh in favour of granting an extension of time.
d) Prejudice and f) Fairness
To the extent that there is any prejudice to the employer in this case (s 394(3)(d)), it is minimal. As to the consideration in s 394(3)(f), I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. These matters are neutral considerations.
e) Merits of the application
In essence, the Applicant challenges the genuineness of the redundancy and submits that the consultation process was flawed. In particular, she points to her lack of awareness of the significance of the meeting between herself, Ms Miller, and Mr Clark via Zoom on 22 May 2023, at which she was advised a large portion of the Burnie grant had been lost, and at which she was asked to provide details of her job description. She also points to the lack of time she had between the meetings of 22 and 23 June 2023 to consider her options and provide a response.
The Respondent submits that the organisation was suffering a significant financial deficit following the loss of the Burnie grant and that the Applicant’s role was surplus to the Respondent’s requirements. Further, it submits that it had complied with its consultation obligations both under the Act and clause 8 of the SCHADS Award.
In a proceeding of this kind, which is essentially interlocutory in nature, it is not possible, nor appropriate, to determine the merits of an application in any substantive way. The various competing contentions and the evidentiary disputes are not able to be properly tested as would happen in a full hearing of the merits. Nevertheless, some assessment needs to be made as to the strength of the Applicant’s case, and in my assessment, the Applicant’s case is not without merit. Overall, on the limited material before me, it is evident that the consultation process was hasty and potentially deficient. That this is so, weighs in the Applicant’s favour in assessing whether there were exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s394(3), I am satisfied that there are exceptional circumstances in this case. Whilst some of the factors required to be considered are either neutral or do not point in favour of granting an extension of time, I have determined that there is a credible reason for the delay, and the Applicant’s case is not without merit. For those reasons, I am satisfied that the discretion to extend under s394(3) is enlivened and I consider it appropriate to exercise it.
The Applicant’s unfair dismissal application will shortly be programmed for hearing. I direct the parties to attend a Member Assisted Conciliation conference.
COMMISSIONER
Appearances:
Ms Koch on her own behalf
Ms Dowling of Barry Nilsson, with permission, on behalf of Families Tasmania Inc, the Respondent
Hearing details:
2023
Melbourne (by Microsoft Teams)
22 August 2023.
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