Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd
[2023] FWC 750
•11 APRIL 2023
| [2023] FWC 750 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tayla Brittany Higgins
v
FQM Australia Nickel Pty Ltd
(U2023/1063)
| DEPUTY PRESIDENT BINET | PERTH, 11 APRIL 2023 |
Application for an unfair dismissal remedy
On 10 February 2023 Ms Tayla Brittany Higgins (Ms Higgins) made an application to the Fair Work Commission (FWC) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was unfairly dismissed from her employment as a Paramedic with FQM Australia Nickel Pty Ltd (FQM) on 28 December 2022.
An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.
Ms Higgins has made an application for an extension of time to file the Application. FQM oppose the application.
Directions for the filing of materials were issued to the parties on 7 March 2023 (Directions). The Application was listed for a hearing on 3 April 2023 to determine the application for an extension of time (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
FQM sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to FQM to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Ms Higgins appeared on her behalf and Ms Erica Hartley of HWL Ebsworth (Ms Hartley) appeared on behalf of FQM.
Evidence
In advance of the Hearing Ms Higgins filed witness statements setting out her own evidence in chief [2] and the evidence in chief of the following witnesses:
a.Ms Sophie Osterloh (Ms Osterloh)[3]. Ms Osterloh was treated by Ms Higgins and vouched for the quality of the care delivered by Ms Higgins.
b.Ms Asha Greenway (Ms Greenway)[4]. Ms Greenway worked with Ms Higgins and says that she witnessed Ms Higgins raise concerns about work practices at FQM.
Ms Higgins gave further evidence at the Hearing and was cross examined by Ms Hartley. FQM chose not to cross examine any of Ms Higgin’s other witnesses.
In advance of the Hearing FQM filed a witness statement setting out the evidence in chief of its only witness Ms Belina McCaig (Ms McCaig)[5]. Ms McCaig is a Human Resource Superintendent for FQM. Ms McCaig commenced her employment with FQM on 17 October 2022 after some of the events which led to Ms Higgin’s separation from FQM had occurred.
On the morning of the Hearing Ms Higgins forwarded to Chambers and to FQM’s legal representatives a letter from her treating psychologist Ms Nadia Cunningham (Ms Cunningham) dated 24 March 2023. Ms Higgins says that she received the letter on, or around, 24 March 2023 but could not explain why she did not file it with the FWC earlier. FGM opposed the admission of the letter. Ms Cunningham was not available for cross examination. I admitted the letter and marked it Exhibit A1 but explained to Ms Higgins that in the absence of Ms Cunningham being available for cross examination I would attach less weight to Ms Cunningham’s evidence as set out in the letter.
A digital court book containing the evidence and submissions of the parties was prepared by the parties and filed in the FWC on 30 March 2023 (DCB). The DCB admitted at the Hearing as an exhibit and marked Exhibit DCB1.
An Agreed Statement of Facts was admitted at the Hearing and marked Exhibit A2.
Both parties were invited to make oral closing submissions. Both parties did so.
In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties including these materials, even if not expressly referred to in these reasons for decision.
Background
FQM is a global company that produces copper in the form of concentrate, cathode and anode. It has a large-scale open pit nickel mine and processing plant located in Ravensthorpe, Western Australia approximately 300 kilometers from Albany (Site).[6]
Ms Higgins commenced employment with FQM at the Site on 28 July 2021 in the role of Officer, Emergency & Security – Paramedic in the Emergency Response Team. Prior to commencing employment with FQM she had been performing the role as a contractor. On 3 August 2021 her contract was varied and she commenced working as an Officer, Emergency & Security - Paramedic.[7]
Ms Higgins’ primary responsibility in her role was to provide emergency medical services on-site as part of the Emergency Response Team performing a roster of eight days on and 6 days off.
Ms Higgins reports that she suffers from ADHD and that her symptoms include poor time management and difficulty maintaining attention to detail.[8] She says that her ADHD is normally well managed by medication and reports that prior to November 2022 she had no performance issues, provided a high level of care and was the recipient of a safety award.[9]
Ms Higgins alleges that she was subjected to bullying, sexual harassment and emotional abuse when she changed crews.[10] She also alleges that she was micro managed by supervisors who did not have medical or emergency response backgrounds and that her concerns about workplace safety were not acted upon.[11]
Ms Higgins says these matters led her to have a mental breakdown requiring her to take leave from the workplace in September 2022 and seek medical treatment.[12] Ms Higgins has been treated by Ms Cunningham since this time. Ms Higgins has not lodged a workers compensation claim in relation to the injuries which she says occurred to her mental health in the workplace.
Sometime between September 2022 and 7 November 2022 Ms Higgins reported to FQM that she could not access FQM’s Employee Assistance Program (EAP). FQM made inquiries with the EAP Provider who reported that:[13]
“Overall, communications with Tayla has been difficult and I am uncertain as to why she is reporting difficulty accessing the EAP.
Following her initial contact to WL (12/9/2022) the psychologist, on multiple occasions, attempted to contact Tayla. Contact was eventually made, with the Psych able to offer and schedule a time to speak with Tay/a at short notice (<24hrs). To date, Tayla failed to attend 1x session (14/9/22) and attended 1 session (15/9/22).
The psych again reached out to offer a follow up appointment. It was left with Tayla to contact WL/Psych should she want to schedule another apt.
There has been no further contact from Tayla since.”
On 9 November 2022 after a period of absence from work Ms Higgins sent an email to her supervisor reporting concerns about her treatment in the workplace and complaining that the EAP Provider was non responsive. She attached a medical certificate to her email certifying her unfit for work from 3 November 2022 until 24 November 2022. In the email she indicated that she was uncertain when she would return to the workplace but anticipated that it would not be until the new year.[14]
On 10 November 2022, Ms McCaig emailed Ms Higgins to obtain further details about her concerns so that the concerns could be investigated and addressed.[15]
On 24 November 2022, Ms McCaig emailed Ms Higgins. Ms McCaig noted that Ms Higgins’ medical certificate was due to expire that day but that Ms Higgins had not confirmed whether or not she would be returning to work. Ms McCaig sought further information about the nature of Ms Higgins’ medical condition in order to establish whether Ms Higgins was in fact fit to return to work. Ms McCaig informed Ms Higgins that if she was unfit to return to work she would be required to provide medical evidence. Ms McCaig encouraged Ms Higgins to inform FQM if her medical condition prevented her from engaging with the FQM and to make a workers compensation claim if she believed her medical condition was work related. Ms McCaig again requested further details about Ms Higgin’s concerns about her treatment in the workplace so that they might be addressed.[16]
Ms Higgins responded later on 24 November 2022. She reported that she was currently suffering from either covid or a sinus infection but that she was also seeking mental health treatment. Ms Higgins went on the state that: “I understand my role is critical” and “I don't understand why I'm not allowed to take personal leave on my own terms without such a kick up.”[17]
On 25 November 2022, Ms Higgins obtained a medical certificate certifying her unfit for work from 25 November 2022 until 21 December 2022.[18]
On 25 November 2022, in response to an email from FQM asserting she appeared to be using medical certificates as a means for taking leave for holidays without the relevant approvals, Ms Higgins claimed that she had informed Ms Lily Newman through email and on the phone of her intentions. FQM say that Ms Newman subsequently denied this.
On 28 November 2022, FQM received an email from Ms Amanda Grauze (Ms Grauze) of Medial Training Solutions (MTS). MTS is an external training provider for FQM employees. Ms Grauze's email stated:[19]
“Unfortunately, last week, we received a call from a registrant, (Tayla Higgins), one hour after the course start time, informing us that she would be unable to attend and would like to be transferred to another course date. When she was told that this would incur a full registration cost, she became very angry, rude, abusive and threatening to my staff. Her name has been highlighted for future registrations.”
FQM sought further details of the alleged incident from MTS and were told that:[20]
“Tayla was really rude and would not listen and said FQM will cancel all registrations with us and she will go to the consumer court!
I repeatedly informed Tayla that our cancellation policy applies to all participants and 2 weeks' notice is required for transfer to another date. As she was cancelling on the day of the course MTS will still need to invoice for the training. Tayla said "2 weeks! A lot can happen over 2 weeks. I have done training at many other places, and they are all flexible. Your policy is disgusting. You can get someone else to take the place and you won't lose any money. But you don't want to let go of the $500 so you are going to lose thousands of dollars worth of business from my company. You will be hearing from them. I'm going to go to consumer court. This is disgusting.”
Ms Higgins alleges that in early December 2022 FQM ‘hacked’ her personal email inbox and removed emails key to evidencing her allegations.[21]
On 6 December 2022 FQM sent Ms Higgin’s a letter inviting her to respond to the allegation that she had been abusive to MTS employees and that she had lied about her interactions with the EAP provider (Allegation Letter).[22]
On 7 December 2022 Ms Higgins provided a response to the matters contained in the Allegation Letter and also requested to not speak to FQM until 20 December 2022 when she returned from holidays.[23]
On 9 December 2022 Ms McCaig acknowledged Ms Higgins response. Ms McCaig noted that Ms Higgins medical certificate indicated that she was unfit for work until 22 December 2022 and informed Ms Higgins that in those circumstances the business would delay meeting with her until 22 December 2022. Ms McCaig explained that at that meeting Ms Higgins would have the opportunity to respond to the allegations contained in the Allegation Letter as well as:[24]
a.explaining the inconsistencies between her recollections of the exchange with the MTS staff member and the staff member’s recollections;
b.responding to evidence from her team members that Ms Higgins did not routinely cry at work contrary to her assertion that she did; and
c.providing a statutory declaration to explain diary entries in evidence provided by Ms Higgins which suggest that she had a second employer.
On 21 December 2022, Ms Higgins attended an appointment with her doctor and reported symptoms of anxiety and insomnia. She completed a DASS 21 to assess her mental state. She says that her symptoms were caused by her treatment in the workplace.[25]
On 22 December 2022, Ms McCaig and Mr John Hemsley HSET Manager (Mr Hemsley), met with Ms Higgins via phone. Mr Hemsley advised Ms Higgins that her complaints had been investigated and that none of them had been substantiated. Ms Higgins was also invited to respond to the Allegation Letter.[26]
On 28 December 2022, Ms McCaig and Mr Hemsley met with Ms Higgins to inform Ms Higgins that after consideration her response to the Allegation Letter the decision had been made to terminate her employment. This information was subsequently confirmed in writing by email the same day (Termination Letter).[27]
The Termination Letter identified the grounds of dismissal as:[28]
a.an inappropriate interaction with MTS employee;
b.breaches of confidentiality; and
c.making unsubstantiated allegations about her colleagues.
Ms Higgins denies that she breached any confidentiality obligations asserting that she was simply seeking evidence to substantiate her allegations. She insists that her allegations can be substantiated and that misconduct allegations were brought against her to prevent her ventilating her complaints.[29]
Ms Higgins says that the show cause process further aggravated her symptoms of anxiety and depression along with the anniversary of her mother’s death on 24 December.[30]
On 28 December 2022, Ms Higgins developed severe abdominal pain. On 1 January 2023 she attended the Emergency Department at the Peel Health Campus. She was referred for radiological scans. The scans eventually occurred on 16 February 2023. Ms Higgins says that during this period she suffered from physical and mental symptoms that were so severe that she was unable to attend important medical appointments including one with her psychiatrist on 5 January 2023.[31] Ms Higgins psychologist reports that Ms Higgins was unable to secure an appointment with her between 23 December 2022 and 16 February 2023.[32]
On 3 January 2023 Ms Higgins contacted the Department of Mines, Industry Regulation and Safety (DMIRS) to request that they investigate her allegations. On 18 January 2023 she was advised by DMIRS that her case had been closed. She says that she requested that the decision be reviewed and was told that she would be informed of the outcome of that request but did not hear back from DMIRS.[33]
On 30 January 2023, Ms Higgins began exploring the option of pursuing a remedy for unfair dismissal and discovered that a 21 day time limit applied. She says that she contacted the Office of the Fair Work Ombudsman the same day to get advice and was told that she could apply for an extension of time to make the application.[34]
Ms Higgins said that she then undertook her own research and contacted two legal firms and the FWC pro bono legal service to obtain legal advice. She says that when she was informed of the likely delay in obtaining an appointment she decided to prepare the Application herself.[35]
FWC records reveal that Ms Higgins initially lodged a Form F2 - application for an unfair dismissal remedy (Form F2) close to midnight on Thursday 9 February 2023. The document lodged indicated that she was represented by a local legal firm. In the early hours of Friday 10 February 2023 Ms Higgins lodged a second Form F2 – which did not identify a representative. On 16 February 2023 Ms Higgins confirmed that she was not presently legally represented.
On 22 February 2023, the Chambers of Vice President Catanzariti wrote to Ms Higgins explaining that the Application had been lodged out of time and that an extension to file the Application could only be granted in exceptional circumstances. In the same correspondence Ms Higgins was directed to provide the following information:
“Tayla, please respond in writing (with a copy to the respondent) by 5:00 pm on Monday the 27th of February, explaining why you consider your circumstances are exceptional and provide any supporting evidence. For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time. Please consider the matters that the Commission must take into account which are set out above and address them in your written statement, if you can”
Ms Higgins did not respond to the email from the Vice President’s Chambers. On 28 February 2023 the Vice President’s Chambers wrote to Ms Higgins again and informed her that if a response was not received by 5pm Thursday 2 March 2023 the Application may be dismissed without further notice.
Ms Higgins did not provide a response until a few hours before the 2 March 2023 deadline was due to expire.
The Application was subsequently allocated to my Chambers for determination.
Consideration
Subsection 394(2) of the FW Act provides 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 FWC allows pursuant to subsection 394(3) of the FW Act.
The 21 day period does not include the day on which the dismissal took effect.”[36]
If the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[37]
It is not in dispute, and I so find, that the dismissal took effect on Wednesday 28 December 2022. [38]
The date 21 days after the dismissal took effect was Wednesday 18 January 2022.
It is not in dispute, and I so find, that the Application was made on Thursday 9 February 2023.
The Application was therefore filed 22 days out of time.
The FW Act allows the FWC 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.[39] 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.[40]
Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:
- the reason for the delay;
- whether the person first became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer (including prejudice caused by the delay);
- the merits of the Application; and
- 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.[41]
The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[42]
Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[43]
The requirement that there be exceptional circumstances before the time for the lodgement of an application can be extended under section 394(3) of the FW Act contrasts with the broad discretion conferred on the FWC under section 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.
Were there reasons for the delay?
The onus is on Ms Higgins to provide a credible reason for the delay.
While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal may be relevant in determining whether the reason for the delay constitutes exceptional circumstances.[44]
In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[45] the Full Bench explained the correct approach by reference to the following example:
“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.”
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[46]
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.[47]
The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation. Ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.[48]
The Ms Higgins submitted that the delay occurred because:[49]
a.Her experiences in the workplace caused harm to her mental health. The show cause process and the anniversary of her mother’s death further aggravated her symptoms of anxiety and depression.[50]
b.She developed severe abdominal pain resulting in the need for emergency hospital assessment on 1 January 2023.
c.Between from 1 January for three weeks her physical and mental symptoms were so severe that they prevented her:
o functioning on daily basis;
o caused her to miss important medical appointments; and
o cease taking her ADHD, sleep and anti depression medication causing a further deterioration in her mental and physical health.
d.She had initially endeavored to pursue her grievances with DMIRS by contacting them on 3 January 2023 but was eventually told on 18 January 2023 that the investigation had been closed causing her suffer further feelings of anxiety and depression.
e.She contacted the FWO on 30 January 2023 and was informed of the 21 day time limit to lodge her application.
f.She then endeavored to contact two legal firms and the FWC’s Workplace Advice Service to secure assistance in making an application but was unable to secure timely assistance so she lodged the application herself.
I consider the evidence before me provides a reasonable explanation why Ms Higgins did not file the Application between 28 December 2023 and 3 January 2023.
I am not satisfied that the evidence before me provides a reasonable explanation why Ms Higgins did not file the Application between 3 January 2023 and 9 February 2023.
Stress, anxiety or low mood and motivation following employment ending is common, not unusual. Without more, they are not exceptional circumstances.[51] The evidence must establish that more exists.
While Ms Higgin’s evidence is that she was feeling unwell until at least 16 February 2023 and that her then unmedicated ADHD impacted on her ability to organise her affairs:
a.she was well enough from 3 January 2023 to contact DMRIS, provide a summary of her concerns to DMIRS and follow up with them.
b.she was well enough on 30 January 2023 to contact FWO and obtain advice from them.
c.she was well enough between 30 January 2023 and 9 February 2023 to identify and approach three legal services; and
d.she was well enough on 9 January 2023 to file a detailed Form F2.
The evidence is that Ms Higgins is, or was during the relevant period, a patient of a General Practitioner, a psychiatrist and a psychologist. None were called as witnesses. Ms Higgins was clearly aware of the steps necessary to obtain proof of her medical condition having been able to obtain multiple medical certificates to support her absence from work during her employment. Both my Chambers and the Vice President’s Chambers recommended that a medical evidence was obtained to support any delay occasioned by ill health. Ms Higgins did not provide any medical evidence in support of her assertions with respect to the nature of medical conditions she says she was suffering and the impact of those conditions on her capacity to file her application.
The letter provided by her treating psychologist does record any medical diagnosis or how such a diagnosis might have prevented Ms Higgins making her application until 9 February 2023. It merely notes that Ms Higgins reports to be suffering from various mental health aliments and that she was unable to secure an appointment during the period from 23 December 2023 till 16 February 2023. While the letter notes that she continues to receive treatment again there is no acknowledgement that the condition for which she is being treated or her treatment could have prevented her from making the Application. Similarly, while there is evidence that Ms Higgins suffers from ADHD there is no medical evidence of the impact of her particular symptoms on her capacity to make the Application.
To the extent that the delay was a result of her exploring what remedies DMRIS might provide to her it was clear from 18 January 2023 that they did not intend to take the matter further. It was not until 30 January 2023 a further 12 days later that Ms Higgins further explored a remedy with the FWO. I am not satisfied that a reasonable explanation exists for all of this period.
Having been informed of the 21 day time limit on 30 January Ms Higgins did not act immediately to file her application. Instead she took a further 10 days to file her application. While she says that she endeavoured to contact several law firms during this period there is no evidence before me that this did in fact occur.
The absence of an acceptable explanation for all of the delay weighs against a conclusion that there are exceptional circumstances.
Did Ms Higgins first become aware of the dismissal after it had taken effect?
Ms Higgins was informed of the termination of her employment verbally and in writing on the day it took effect on 28 December 2022.[52] Ms Higgins was aware of her dismissal as soon it took effect and therefore had the full period of 21 days to lodge the Application. However her dismissal occurred between Christmas and New Year in a period in which family commitments and business, government and community shut downs or restricted hours of work make obtaining support and advice problematic.
FQM point out that Ms Higgins was notified in the Allegation Letter on 6 December 2022 that her employment was at risk. FQM submit that Ms Higgins could have utilised that period to seek legal advice or research what remedies might be available to her in the event she was dismissed.
On balance the submissions and evidence before me with respect to this consideration do not weigh in favour of a finding that exceptional circumstances exist in this Application..[53]
What action was taken by Ms Higgins to dispute the dismissal?
Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time.[54]
Ms Higgins has taken steps to dispute or challenge the circumstances which led to her dismissal in different forums since shortly after her dismissal. She first reported her concerns to DMIRS on the first business day of the new year. When that avenue proved unsuccessful she contacted the Fair Work Ombudsman on 30 January 2023. Eventually she filed the Application with the FWC.
FQM submit that notwithstanding this it remained unaware that Ms Higgins intended to challenge her dismissal.
On balance the submissions and evidence before me with respect to this consideration weigh in favour of a conclusion that there are exceptional circumstances.
What is the prejudice to the employer (including prejudice caused by the delay)?
Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[55]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.
A long delay gives rise “to a general presumption of prejudice”.[56]
FQM submits that it would suffer prejudice if an extension of time were granted because of the impact of duration of the delay on the resources required to deal with the Application.
The delay is not exceptionally long. Even in the absence of prejudice I would attribute it little weight in consideration of whether there are exceptional circumstances. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.
What are the merits of the application?
If a claim has merits, this will weight in favour of the grant of an extension of time.[57]
Ms Higgins says that the Application if it were to proceed has merit because there was no valid reason for her dismissal.
In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice.[58]
On the materials before me it would appear that Ms Higgins case is not entirely without merit. I therefore treat this as a neutral consideration.
Fairness as between the Ms Higgins and other persons in a similar position
The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of the same kind; however, cases of the same kind often turn on their own facts.[59]
As Commissioner Bissett observed in Murray v Ambulance Victoria[2022] FWC 215 at [48]:
“In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.”
The FWC has recently denied extension of time applications for claims commenced even if they are one day out of time.[60]
Taking into account the criteria set out in section 394(3) of the FW Act, there is no exceptional circumstance on the evidence before me that differentiates Ms Higgins’s circumstances from the circumstances of other individuals whose extension of time applications have recently been denied.[61]
This weights against the granting of an extension of time.
Conclusion
Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Ms Higgins, I am not satisfied that there are not exceptional circumstances in this case, either when the various circumstances are considered individually or together.
As I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under section 394(3) of the FW Act.
Accordingly, Ms Higgins’s Application for an unfair dismissal remedy must be dismissed.
An Order[62] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms T Higgins, for the Application.
Ms E Hartley, for the Respondent.
Hearing details:
2023
PERTH
3 April
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 41-43.
[3] Ibid 118-119.
[4] Ibid 117.
[5] Ibid 125-159.
[6] Ibid 125.
[7] Ibid 41, 125-126.
[8] Ibid 57.
[9] Ibid 46, 47, 61.
[10] Ibid 41.
[11] Ibid 42-43, 9.
[12] Ibid 43.
[13] Ibid 126, 131.
[14] Ibid 126, 132-133, 91.
[15] Ibid 136.
[16] Ibid 127, 138.
[17] Ibid 127, 140.
[18] Ibid 51.
[19] Ibid 127, 141.
[20] Ibid 127-128, 142.
[21] Ibid 48.
[22] Ibid 128, 144-147.
[23] Ibid 128, 148-149.
[24] Ibid 103-104.
[25] Ibid 64.
[26] Ibid128
[27] Ibid 129.
[28] Ibid 50.
[29] Ibid 9.
[30] Ibid 65, Exhibit A1.
[31] Ibid 44-45, 54, 58.
[32] Exhibit A1.
[33] DCB (n 2) 45, 66.
[34] Ibid 45, 66, 107-113, 7, 66.
[35] Ibid 45, 66.
[36] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[37] Ibid; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[38] DCB (n 2) 129, 44.
[39] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[40] Ibid.
[41] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[42] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16].
[43] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
[44] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic (n 42) at [31].
[45] [2016] FWCFB 349.
[46] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (n 41) [39].
[47] Ibid.
[48] Nulty v Blue Star Group Pty Ltd (n 39)at [14].
[49] DCB (n 2) 44, 65-67.
[50] Ibid 65, Exhibit A1.
[51] Elaine Lousie Sparrow v The Jewllery Group Pty Ltd[2022] FWC 3107 at [41].
[52] Exhibit A2.
[53] Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].
[54] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.
[55] Ibid.
[56] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
[57] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[58] Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].
[59] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[60] See for example Battigelli v Respiratory West Pty Ltd[2022] FWC 25 and Murray v Ambulance Victoria (n 62).
[61] See for example: O’Dea v Grampians Health (n 62); Yates v Dahlsens Building Centres Pty Ltd (n 62), Ainslie v Groot Eylandt Mining Company Proprietary Limited (n 62); Fried v Travel Management Services Pty Ltd ( n 62); Massey v Centrecare (n 62), McIntosh v Barwon Health (n 62); Potapova v Alfred Health (n 62); Murray v Ambulance Victoria (n 62); Scanlan v Aged Care and Housing Group Inc (n 62); Ferrato v Virtus Diagnostics (n 62); Petherick v Estia Investments Pty Ltd (n 62).
[62] PR760974.
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