Taylor McMillan v Congress of Aboriginal and Torres Strait Islander Nurses and Midwives Ltd
[2021] FWC 6525
•9 DECEMBER 2021
| [2021] FWC 6525 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Taylor McMillan
v
Congress of Aboriginal and Torres Strait Islander Nurses and Midwives Ltd
(U2021/9470)
DEPUTY PRESIDENT DEAN | CANBERRA, 9 DECEMBER 2021 |
Application for an unfair dismissal remedy – extension of time.
[1] Ms Taylor McMillan (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of her employment with Congress of Aboriginal and Torres Strait Islander Nurses and Midwives Ltd (the Respondent).
[2] Section 394(2) of the 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 Commission allows pursuant to s 394(3). The Applicants employment ended on 21 May 2021 and the present application was made on 21 October 2021, some 132 days outside the 21 day period.
[3] The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
[4] The matter was listed for hearing by telephone on 8 December 2021. Both the Applicant and the Respondent were granted permission to be represented at the hearing. The Applicant was represented by Ms K Scott and the Respondent was represented by Ms R Richardson.
[5] 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’. 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 nor unprecedented, nor even very rare.1 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.2
[6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
[7] 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;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[8] 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 this application.
Reason for the delay
[9] The Act does not specify what reason for the 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.3
[10] The Applicant’s submissions cited the following as the reason for the delay:
“The Applicant submits the reasoning for her delay in filing the unfair dismissal application was due to relying on amicable discussions that were taking place with the Respondent with the aim of resolving the issues she had raised with her dismissal. During the period 25 May 2021 to 10 June 2021 multiple pieces of correspondence were exchanged on a without prejudice basis.
Throughout this period, and during the 21-day limitation period, the Applicant had also drafted a Form F8 General Protections Claim with the intention of filing if the discussions did not progress in any meaningful manner.
It was clear to the Applicant that the correspondence exchanged between the parties up to and including 10 June 2021 was showing that it was likely the parties were going to be able to reach a middle ground. The Applicant had followed up the Respondent multiple times seeking a response to on the letter that had been sent on 10 June 2021. The Respondent replied on 12 July 2021, which was after the limitation period to lodge the Form F8 had expired.
The Applicant believed that the parties were going to be able to agree on resolution of the matter, and on that basis did not file either a General Protections Claim or an Unfair Dismissal Claim with the Commission within 21 days of her dismissal.”
[11] In her oral evidence, the Applicant said that the delay was also attributable to her being busy, dealing with the trauma of being dismissed, and prioritising her new job and unexpected pregnancy.
[12] The Applicant in cross examination confirmed she was aware of the 21 day time limit for unfair dismissal applications and also confirmed she was legally represented during that period.
[13] The Respondent opposed the application for an extension of time and submitted that there are no exceptional circumstances in this case justifying an extension of time. It submitted that settlement negotiations between parties do not ‘stop the clock’ on the statutory time limit and the Applicant, who had been legally represented since the dismissal, was aware of the time limit but chose not to bring her claim within time. It was further submitted that the Applicant failed to adequately explain the subsequent period of delay after the conclusion of the settlement discussions.
[14] I am not satisfied that the Applicant has provided an acceptable reason for the delay in making her application. This is particularly so given she was aware of the 21 day time limit and had the benefit of legal representation. There is nothing in her explanation which could be considered exceptional. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[15] The Applicant was notified on or about 11 May 2021 of her dismissal which was to take effect on 21 May 2021. The Applicant therefore had the full 21 day period to lodge her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
[16] The Applicant submits that she sought legal advice on the day of receiving the notice of her redundancy and took considerable steps to dispute the dismissal through various correspondence directly with the Respondent and its legal representatives.
[17] The Respondent submits that the Applicant took no action to dispute the dismissal other than taking part in the settlement negotiations.
[18] Despite indicating she intended to lodge a general protections claim, the Applicant did not do so. The last correspondence between the parties was in July 2021, and her application was not made until 21 October 2021.
[19] Overall, I consider that this criterion weighs slightly in favour of a finding of exceptional circumstances.
Prejudice to the employer
[20] The Respondent submitted that the lengthy delay gives rise to a general presumption of prejudice against the employer.
[21] The Applicant made no submissions as to any prejudice to the Respondent.
[22] I accept the delay is a lengthy one. However, in the absence of any evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
[23] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
[24] The Applicant claims that her case has merit on the following basis:
1. Her dismissal was not a case of genuine redundancy.
2. She was not consulted at any point about the redundancy.
3. Her dismissal occurred after she made a complaint about the CEO of the Respondent.
4. She had no performance issues during her 4 years’ employment with the Respondent.
[25] The Respondent contends that the termination of the Applicant’s employment was on the grounds of a genuine redundancy and the Applicant’s substantive case is weak.
[26] The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[27] 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.
[28] Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
[29] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
K Scott of Snedden Hall & Gallop Lawyersfor the Applicant.
R Richardson of BAL Lawyers for the Respondent.
Hearing details:
2021.
By telephone:
December 8.
Printed by authority of the Commonwealth Government Printer
<PR736481>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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