Traci Touzell v Sport Integrity Australia
[2022] FWC 1410
•21 JUNE 2022
| [2022] FWC 1410 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Traci Touzell
v
Sport Integrity Australia
(C2022/1219)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 JUNE 2022 |
Application to deal with contraventions involving dismissal
Mrs Traci Touzell (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she has been dismissed from her employment with Sport Integrity Australia (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the grounds that the Applicant was not dismissed, and the Application was nonetheless made out of time.
Directions were issued for the Applicant and the Respondent to file materials relating to the issues of whether the Applicant was dismissed and whether the Application should be accepted notwithstanding that it was made out of time. The Applicant relied upon the contents of the Application, an Outline of Submissions, and an Outline of Submissions in Reply containing nine attachments. The Respondent relied upon the contents of their Form F8A response filed in this matter, an Outline of Submissions, and a Statement of Ms Lisa Ann Logue, Assistant Director Human Resources, with annexures.
Background Facts
The Applicant commenced employment with the Australian Sports Anti-Doping Authority (ASADA) in September 2011, pursuant to a document titled “ASADA Terms and Conditions 2008 – 2010” (the Contract). That document provided under the heading “Casual basis of employment”:
4. The employee will perform their duties on the terms and conditions set out in this Agreement from time to time when offered an engagement by ASADA. The terms and conditions of this Agreement apply to each period of engagement of the employee.
5. The employee may refuse to accept an offer of an engagement by ASADA, and ASADA has no obligation to offer a minimum number of engagements.
6. An employment relationship arises between the employee and ASADA at the time the employee commences to perform their duties under an engagement. The employee acknowledges that [he/she] is employed on a casual basis and nothing in this Agreement shall be construed as, or is intended to give rise to, an ongoing employment relationship. (emphasis added)
Between September 2011 and 12 May 2014, the Applicant performed the role of a casual Chaperone, which involved the supervision of athletes providing samples for testing. From 12 May 2014, the Applicant performed the role of Casual Doping Control Officer for ASADA, a role which involved the administration of the testing processes, safeguarding the continuity of the anti-doping tests, and the supervision of the Chaperone.
From 24 August 2012, the Australian Sports Anti-Doping Authority Enterprise Agreement 2012-14 (the 2012 Agreement) applied to the Applicant’s employment with the ASADA. Clause 99 of the 2012 Agreement provided:
“99 Hours of work
99.1 A casual employee will cany out duties at such times and on such days determined by ASADA following acceptance of an offer of engagement by the employee. In accordance with the Fair Work Act employees have the right to decline to work unreasonable hours of work
99.2 Subject to clause 99.4, each separate sample collection session, re-accreditation session, training session or education presentation represents a separate period of engagement and this Agreement does not guarantee any on-going, continuing or further engagement of the employee.
99.3 Period of engagement:
99.3.1 Casual Doping Control Officer (DCO):
(a)Subject to clause 99.4, a period of engagement for a "primary" DCO commences when the employee leaves home bound direct for a sample collection session and finishes when the employee arrives home direct from a testing session. The start and finish times reflect the responsibility of the employee for the security and safe transport of critical materials for sample collection, such as testing kits, paperwork and athlete information.
(b)Where the employee is attending a sample collection session as a "second" DCO and does not have responsibility for the transportation of any kits, paperwork or athlete information, the period of engagement commences at the time the employee is required to arrive at the testing session, irrespective of whether the employee arrives earlier. The finish time is the time that the employee completes the sample collection session. If the employee arrives late to a sample collection session, ASADA may, at their discretion, terminate that engagement period or reduce the period of engagement.
(c)Subject to clause 99.4, if the employee is required for a sample collection session later on the same day as an earlier engagement, the start time for the new engagement will be the time the employee is required to start at the later testing session.
99.3.2 Casual Chaperone
A period of engagement commences at the time the employee is required to arrive at the sample collection venue for duty, irrespective of whether the employee arrives at the sample collection venue earlier. If the employee arrives late to a sample collection session, ASADA may, at its discretion, terminate that engagement period or reduce the period of engagement.
99.3.3 Casual Education Presenter
A period of engagement commences at the time the employee is required to arrive at the education venue for duty, irrespective of whether the employee arrives at the education venue earlier. If the employee arrives late to an education session, ASADA may, at its discretion, terminate that engagement period or reduce the period of engagement.
99.4 Unless otherwise agreed to prior to the commencement of an engagement, if the employee has a two hour or less break between two engagements period, the break will be treated as paid time for all purposes other than time taken for meal breaks which must be at least 30 minutes. That is, the engagement period will be deemed to have commenced at the time of the engagement period prior to the break and will end at the cessation of the engagement period after the break.”
On 12 May 2014, ASADA appointed the Applicant to the position of Casual Doping Control Officer, with the designation that she remained a casual, specifically a Casual (irregular and intermittent) APS employee as defined by the ASADA Enterprise Agreement 2012-2014 and Section 22(2)(c) of the Public Service Act 1999 (Cth).
On 1 February 2018, the 2012 Agreement was replaced by the Australian Sports Anti-Doping Authority Enterprise Agreement 2017 – 2020 (the 2018 Agreement). Clause 77 of the 2018 Agreement was in similar terms to Clause 99 of the 2012 Agreement, and provided:
“77. Hours of work
77.1. A casual employee will carry out duties at such times and on such days determined by ASADA following acceptance of an offer of engagement by the employee. In accordance with the Fair Work Act employees have the right to decline unreasonable additional hours of work.
77.2. Subject to clause 77.4, each separate sample collection session, re-accreditation session, training session or education presentation represents a separate period of engagement and this Agreement does not guarantee any on-going, continuing or further engagement of the employee.
77.3. Period of engagement
77.3.1. Casual Doping Control Officer (DCO):
a. Subject to clause 77.4, a period of engagement for a “primary” DCO commences when the employee leaves their home office bound direct for a sample collection session and finishes when the employee arrives home direct from a testing session. The start and finish times reflect the responsibility of the employee for the security and safe transport of critical materials for sample collection, such as testing kits, paperwork and athlete information.
b. Where the employee is attending a sample collection session as a “second” DCO and does not have responsibility for the transportation of any kits, paperwork or athlete information, the period of engagement commences at the time the employee is required to arrive at the testing session, irrespective of whether the employee arrives earlier. The finish time is the time that the employee completes the sample collection session. If the employee arrives late to a sample collection session, ASADA may, at its discretion, terminate that engagement period or reduce the period of engagement.
c. Subject to clause 77.4, if the employee is required for a sample collection session later on the same day as an earlier engagement, the start time for the new engagement will be the time the employee is required to start at the later testing session.
77.3.2. Casual Chaperone
A period of engagement commences at the time the employee is required to arrive at the sample collection venue for duty, irrespective of whether the employee arrives earlier. If the employee arrives late to a sample collection session, ASADA may, at its discretion, terminate that engagement period or reduce the period of engagement.
77.3.3. Casual Education Presenter
A period of engagement commences at the time the employee is required to arrive at the education venue for duty. If the employee arrives late to an education session, ASADA may, at its discretion, terminate that engagement period or reduce the period of engagement.
77.4. A break of two hours or less between engagements will be treated as paid time, except time taken for a meal break (which must be at least 30 minutes), unless agreed prior to the commencement of the second engagement.
77.5. Further information regarding periods of engagement is available in ASADA’s Casual Employee Engagement Policy.”
On 19 August 2019, the Applicant lodged a psychological workplace injury claim with Comcare. She was deemed unfit for work from 20 August 2019. Comcare initially rejected the Applicant’s claim, however the matter was resolved by agreement in the Administrative Appeals Tribunal on 19 July 2021. The terms of settlement included the agreement of the parties that the Applicant’s injury had resolved as at 13 July 2020.
On 1 July 2020, ASADA ceased to exist, and the Respondent was created.
On about 6 September 2021, the Applicant emailed the Respondent seeking to commence a return-to-work plan involving being engaged for more shifts by the Respondent.
On 15 September 2021, the Applicant contacted the Fair Work Ombudsman (the FWO) regarding her return to work. The FWO reviewed the 2018 Agreement and informed the Applicant that as a casual employee, the employer was not obligated to accommodate a return to work and that they could terminate her employment.
On 24 September 2021, the Applicant sought the payment of her long service leave. Between 8 November 2021 and 11 February 2022, the Applicant communicated with the Respondent regarding the calculation of her long service leave.
On 3 November 2021, the Applicant received a phone call from Ms Susan Ball, Deputy Chief Executive Office – Operations of the Respondent. Ms Ball advised that she had considered a return to work for the Applicant, but she would not be able to return the Applicant to her position as Doping Control Officer Southeast QLD.
Later on 3 November 2021, the Respondent wrote to the Applicant as follows:
“Dear Traci
Requests for return to work
Thank-you for your correspondence on 6 September 2021 where you requested a return to work plan with Sport Integrity Australia as a Doping Control Officer (DCO). We have given careful consideration to your request.
Prior to your workplace injury, you were employed on a casual basis by Sport Integrity Australia. As a casual employee, each time you were engaged constituted a separate period of employment. Accordingly, Sport Integrity Australia considers that you have not been an employee since your last shift on 19 August 2019.
Since your last shift, there have been a number of significant changes within Sport Integrity Australia, including:
· Formation of a new agency: The formation of the new agency Sport Integrity Australia on 1 July 2020 brought many changes. One of significance was the expanded remit to now include the coordination of all sport integrity matters to protect sport and the sporting community. Since you were last employed with us in 2019, the agency now has a very different business model to that to the former Australian Sports Anti-Doping Authority (ASADA) and Australian Sports Drug Agency (ASDA).
· Accreditation framework: In July 2021, we introduced a new accreditation framework for Sample Collection Staff. The framework will now ensure Sample Collection Staff meet and maintain the required skills and knowledge to deliver consistent and compliant adherence to procedures in their role. The framework now requires DCOs to meet various selection, governance, fitness and training requirements. This framework was not in place in 2019.
· Casual staff: Casual staff remain a key staffing component of the agency's function. The formation of the new agency also saw a number of changes in employment of both ongoing, nonongoing and causal staff in staffing numbers, skills sets, the introduction of new teams and different roles in the agency.
As a result, a number of operational changes have occurred. These operational changes, combined with recruitment in the intervening period, mean that we do not require additional casual DCOs in the South-East Queensland area at this time.
We understand that this news may be difficult, and I am happy for you to contact me if you wish to discuss further with me. My EA is Brooke and can be contacted via [email protected].
I would like to offer you further support in respect of mental health care in the form of access to Sport Integrity Australia's EAP Lifeworks, for a three month period. You can make an appointment with Lifeworks by contacting them on 1300 361 008.
We greatly appreciate the contribution you made during your 10 years of service with ASADA. Thank you for your past service and I wish you all the best for the future.”
On 23 November 2021, the Applicant emailed Ms Ball to attempt to address information in the letter dated 3 November 2021. On 13 December 2021, Ms Ball replied to that email.
On 11 February 2022, the Applicant was informed of the Respondent’s final position in relation to her long service leave entitlement. She was informed it was to be paid on 17 February 2022.
The Applicant claimed that up until 11 February 2022, despite her enquiries with the Respondent, Comcare, and the FWO, she had not been informed of her rights as a casual employee in systematic and regular employment over a 10 year period.
On 16 February 2022, the Applicant filed an application relating to unlawful termination, and subsequently filed this Application the following day.
The Issue of Jurisdiction Regarding Dismissal
Applicant’s Submissions
The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Application only if the Applicant has been dismissed (Coles Supply Chain Pty Ltd v Milford[1]).
The Applicant claimed that her employment was terminated on 3 November 2021, by the letter of the Respondent of that date, and not 19 August 2019, being the last date she performed work for the Respondent.
The Applicant submitted that she was a regular and systematic casual employee from 1 July 2011, with her work scheduled quarterly in advance. The Applicant further submitted she had received no correspondence effecting termination of her employment prior to 3 November 2021.[2]
Respondent’s Submissions
The Respondent disputes the Applicant’s assertion that her employment terminated on the Respondent’s initiative. If the Respondent’s contention is correct, it follows that the Applicant does not have standing to bring the Application under s.365 of the Act and the Commission therefore does not have jurisdiction to deal with the dispute under s.368 of the Act, including conciliating the dispute and issuing a certificate that it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Absent such a certificate being issued, the Applicant cannot commence an application in the Federal Court of Australia or the Federal Circuit and Family Court of Australia regarding whether the Respondents have contravened the alleged general protections in relation to his dismissal.[3]
The Respondent submits that it is not controversial that the Applicant was a casual employee at all material times. The definition of casual employee is exhaustively defined by s.15A of the Act, which provides:
“Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a) The employee's employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or
(b) The employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”
The Respondent submitted the practical consequence of the Applicant’s status as a casual is the absence of an entitlement to future shifts. That is to say, the Applicant was not terminated or dismissed at law. Simply, the Applicant was not offered further shifts from 19 August 2019.
The Respondent submitted it was beyond doubt that the Applicant was a casual employee. The Applicant’s employment was defined as a casual engagement, was run by rostered shifts, engaged in by a process of offer and acceptance, and the Applicant conceded she was a casual for the purposes of long service leave, and presumably, the Application.
The Respondent submitted the nature of the engagement in the contract, or employment agreement, is determinative. As the contract identified the Applicant as a casual, she is a casual employee at law. It was submitted that, being a regular and systematic casual, which was not conceded by the Respondent, could not convert the Applicant’s employment status at law.
Regarding the long service leave payment, the Respondent noted that the Applicant requested the payment of long service leave in late 2021. The Respondent submitted that the non-payment of an entitlement until it is requested by an employee is not an indication the employment has ended at the time of the payment.
Consideration Regarding Dismissal
Section 386(1) of the Act defines “dismissal” as follows:
“386 Meaning of Dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
I find that the Applicant was clearly a casual employee. The Applicant’s employment was defined as a casual engagement, the Applicant’s employment was run by rostered shifts engaged in by a process of offer and acceptance, and the Applicant conceded she was a casual employee.
The nature of the engagement is clear from the terms of the Contract, the 2012 Agreement and the 2018 Agreement.[4] The Applicant was a casual employee at law, and it was irrelevant whether her engagement was regular and systematic.
The evidence is clear that the Respondent did not dismiss the Applicant on 19 August 2019, or 3 November 2021. To the contrary, the evidence establishes that the Applicant ceased any further engagements by the Respondent from 19 August 2019 because she lodged a psychological workplace injury claim with Comcare.
The letter of 3 November 2021 was not in any way an advice of dismissal. That letter simply rejected a request for a return to work plan where the Applicant had been a casual employee, had not worked for the Respondent for approximately 26 months, and a number of operational changes within the Respondent had resulted in no requirement for additional casual employees.
I find that the Applicant was engaged as a casual employee by the Respondent, and that the terms of the Contract reflected the genuine agreement of the parties. The employment relationship between the Applicant and the Respondent ceased pursuant to the terms of the Contract and the 2018 Agreement at the conclusion of each separate period of engagement. I therefore find that the Applicant’s employment was not terminated on the initiative of the Respondent. The Applicant was therefore not dismissed pursuant to s.386(1)(a) of the Act and the Application must therefore be dismissed.
I will, however, nonetheless and for completeness, address the Applicant’s application to be granted an extension of time to file the Application.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[5]
I will assume for the purpose of my consideration that the dismissal took effect on 3 November 2021. The final day of the 21 day period was therefore 24 November 2021, and ended at midnight on that day. The Application was made on 17 February 2022. The Application would therefore made 85 days late.
As the Application had not been made within 21 days of the date on which the dismissal was said to have taken effect, I need to consider whether I would allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under s.366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[6]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 November 2021. The delay is the period commencing immediately after that time until 17 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[7]
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.[8]
An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[9]
In her Reply Submission the Applicant acknowledged that the Application was late, and outlined the following reasons for that late filing:
(a)That she received erroneous and misleading advice from the FWO and Comcare, which resulted in her delayed application to the Commission;
(b)The impact of the workplace psychological injury, coupled with protracted litigation, the delay in response to her request for a safe return to work, and the incorrect application of the long service leave contributed to the delay;
(c)The Respondent caused significant financial and personal distress in their defective administration by withholding the Applicant’s Comcare funded payments; and
(d)It was not until the Applicant made enquiries about her long service leave entitlements that she became aware that she did have rights as a casual. At the time this became apparent, she immediately lodged a claim with the Commission.
In response, in the parts of the Respondent’s submission that dealt with the out of time issue, the Respondent submitted the following:
(a) Insofar as the Applicant says the delay was caused by anxiety and distress, and her previous psychological injury, the Applicant has not produced any medical evidence to support such a position; and
(b) A consideration of all emails sent by the Applicant to the Respondent after 3 November 2021, where the Applicant was advancing the Applicant’s claim for long service leave, depict a person who had the capacity to understand her legal rights and advocate for them. The correspondence did not reflect a person who was so inhibited by distress that she was unable to address the issues presented in the Application.
In particular, the Respondent noted:
(a) On 23 November 2021, the Applicant sent an email to the Respondent which sought to understand the involvement of the Assistant Director of Field Operations and the Queensland State Manager in the decision to allegedly terminate her employment. That email contained wording which was similar to the framing of the Application, which established the Applicant was alive to those matters at that time;
(b) On 17 December 2021, by correspondence the Applicant advocated for a pro rata approach to the calculation of long service leave with reference to statute, before observing “I have sought legal advice regarding the end date of employment. My employment was terminated whilst on approved medical leave due to a workplace injury on the 3 November 2021”;
(c) In February 2020, while still impacted by her workplace injury, the Applicant lodged a grievance against her line manager; and
(d) On 7 February 2022, the Applicant further communicated with the Respondent and displayed an awareness of the time elapsed since she thought she was terminated, and had an appreciation of the fundamental facts which found the allegations in the Application.
Conclusions on Reasons for Delay
The correspondence referred to by the Respondent indicates the Applicant had an awareness of the issues in the Application, and had sought legal advice regarding the end date of employment almost two months prior to the filing of the Application. Additionally, that correspondence demonstrated the Applicant was not suffering from any impairment that precluded her obtaining advice and advancing her claim. To the contrary, the Applicant has provided evidence that at least she was significantly active in pursuing her long service leave claim.
I agree that in the absence of appropriate medical evidence, I cannot accept the Applicant’s workplace psychological injury reason for the delay as such an explanation contrasts with the Applicant’s other conduct. I further cannot accept the Applicant’s assertion that she received erroneous and misleading advice from the FWO and Comcare in the absence of clear evidence.
Having regard to the above, I am satisfied that the Applicant has not provided an acceptable explanation for any part of the period of the delay, and that is a matter that weighs in favour of the Respondent in this matter.
What action was taken by the Applicant to dispute the dismissal?
The Applicant did not take action to dispute her dismissal prior to making the Application. This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal. I consider this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submitted it would suffer “notable” prejudice, particularly as the Applicant had not been engaged for a long period and enquiries in any proceedings would relate to events some years in the past. I agree with the Respondent’s submission, and I am satisfied that the Respondent would suffer significant prejudice, and that is a matter that weighs in favour of the Respondent in this matter.
What are the merits of the Application?
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[10]
It is not possible to make any firm or detailed assessment of the merits. I find that the merits are a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[11] 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.[12]
It is clear that the factors that have been accorded significant weight in this matter, being the absence of an acceptable reason for the delay and prejudice to the Respondent, weigh heavily in the Respondent’s favour.
Having regard to all of the matters listed at s.366(2) of the Act, and upon the hypothetical assumption of a dismissal occurring on 3 November 2021, I would not be satisfied that there are exceptional circumstances.
Conclusion
As I have found above, the Applicant’s employment was not terminated on the initiative of the First Respondent. The Applicant was therefore not dismissed pursuant to s.386(1)(a) of the Act and the Application must therefore be dismissed.
Further, had I found that dismissal had occurred on 3 November 2021, I would nonetheless not have found that exceptional circumstances existed, or that an extension of the time to file the Application should be granted.
DEPUTY PRESIDENT
Appearances:
Mrs Touzell, Applicant.
Mr Rawlins of Counsel for the Respondent.
Hearing details:
2022.
May 31.
Sydney (by videoconference)
[1] [2020] FCAFC 152 at [74]-[75].
[2] Shortland v The Smiths Snakfood Co [2010] FWCFB 5709.
[3] S.370(a) of the Act.
[4] Workpac v Rossato(2021) 309 IR 89, at [101].
[5] 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.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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