Uzma Sibtain v Guardian Childcare & Education
[2023] FWC 3340
•13 DECEMBER 2023
| [2023] FWC 3340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Uzma Sibtain
v
Guardian Childcare & Education
(U2023/11573)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 13 DECEMBER 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Ms Uzma Sibtain (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Guardian Community Early Learning Centres Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 8 December 2023 in relation to the Applicant’s request for an extension of time. The Applicant’s husband, Mr Rohail Sibtain, appeared on behalf of the Applicant at the hearing. The Applicant did not participate in the hearing. It became apparent during the hearing that although the unfair dismissal application names Mr Rohail Sibtain as the applicant, the person who is claiming they were unfairly dismissed by the Respondent is the Applicant (Ms Uzma Sibtain). Accordingly, I have treated Ms Uzma Sibtain as the Applicant in these proceedings. Mr Rohail Sibtain is the Applicant’s representative.
The Applicant’s dismissal from her employment with the Respondent took effect on 28 September 2023. The Applicant lodged her unfair dismissal application in the Commission on 22 November 2023.
Section 394(2) of the Act states 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 period of 21 days ended at midnight on 19 October 2023. The application was therefore filed 34 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 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.
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.
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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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.[5]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3
Relevant facts
In her unfair dismissal application, the Applicant gave the following explanation for her delay:
“Soon after I went to overseas to visit my mother since she was ill. Due to travel arrangements and travel I could not lodge application within 21 days.”
Mr Rohail Sibtain provided the following further explanation for the delay in an email sent to the Commission on 30 November 2023:
“… As mentioned earlier the reason for the delay in lodgement to the Fair Trade Commission [sic] is that Uzma Rohail was overseas to see her mother who was ill in Texas US. The travel arrangements and being out of country from 21/10/2023 to 06/11/2023 caused delayed submission/lodgement. To support the stance/exceptional circumstances relevant documents like travel documents are attached herewith.”
The documents attached to Mr Sibtain’s email of 30 November 2023 show that the Applicant flew from Brisbane on 21 October 2023 and arrived in Dallas, Texas, United States of America on the same day. They also demonstrate that the Applicant departed Dallas on 4 November 2023 and arrived in Brisbane on 6 November 2023.
Mr Sibtain also explained in his submissions that although the Applicant had access to the internet while she was in the United States of America, she could not prepare her unfair dismissal application at that time because her husband was not present to assist her in the preparation of her application.
Taking into account all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. I accept that the Applicant travelled from Brisbane on 21 October 2023 to see her ill mother in Dallas, and that she returned to Brisbane on 6 November 2023. However, this absence from Australia does not explain what the Applicant did in the period from her dismissal on 28 September 2023 for 23 days until she departed Australia on 21 October 2023, nor does it explain the period from the Applicant’s return to Australia on 6 November 2023 until she lodged her application in the Commission some 16 days later. In any event, the Applicant ultimately used the online system to lodge her unfair dismissal application in the Commission on 22 November 2023. I consider it would have been reasonable for the Applicant to communicate with her husband while she was in the United States of America and obtain his assistance to prepare and lodge her unfair dismissal application before she returned to Brisbane. Although I have sympathy for the Applicant’s circumstances, I do not consider that she has provided an acceptable or reasonable explanation for the 34 day delay in lodging her unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 22 November 2023 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant accepts in her unfair dismissal application that she was told about being dismissed on the day her dismissal took effect. Accordingly, this is a neutral consideration.
Action taken to dispute the dismissal
There is no suggestion in the material before the Commission that the Applicant took any action to dispute her dismissal, other than lodging her unfair dismissal application in the Commission on 22 November 2023. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Respondent dismissed the Applicant because it contends that she was verbally and physically aggressive toward a child in the Respondent’s care. The Respondent submits that the Applicant was seen to grab the child’s arm and restrain him with a force greater than was necessary or appropriate. On 26 September 2023, the Applicant was invited to attend a meeting with the Respondent to discuss the matter. In this meeting, as well as her written response, the Applicant maintained that she had acted appropriately. The Applicant says that she was a whistle blower who proactively intervened and saved a child from a serious head injury because the child was about to be hit by another child. The Applicant says that she used a firm tone and a light hold on the child’s arm to prevent him from hitting another child. The Applicant contends that her prime concern was the protection and safety of both children.
The Applicant contends that there was only a brief inquiry by the Respondent into the incident and the Centre Manager made the decision to dismiss her because she came under pressure as a result of an email from a parent. The content of that email was not shared with the Applicant during the inquiry into the incident.
The Applicant further submits that even if she was at fault in connection with the incident, a warning or advisory letter for improvement would have been an appropriate response rather than the termination of her employment. The Applicant says that in her employment with the Respondent in the period from January 2022 until September 2023 she did not have any history of negligence of duties or verbal or physical inappropriate behaviour with children. The Applicant also contends that the Centre Manager and Assistant Manager of the Centre in which she worked were “party to the incident and biased therefore the inquiry has not been conducted following HR generally accepted rules and regulations”.
It is not possible at this early stage of the proceedings to make an assessment as to the likelihood that the Applicant would succeed in her claim that she was unfairly dismissed. The outcome would depend on an assessment of the credibility of the Applicant’s evidence on the issues in dispute, together with the credibility of other witnesses called to give evidence in a final hearing. Having regard to all the circumstances, I consider the merits of the application to be a neutral consideration in my assessment as to whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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:
Mr R Sibtain, for the Applicant
Mr B Cooper, for the Respondent
Hearing details:
2023.
Newcastle (by telephone):
December 8.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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