Vanessa McDonald v State of Victoria (Department of Justice and Community Safety)
[2023] FWC 2241
•7 SEPTEMBER 2023
| [2023] FWC 2241 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vanessa McDonald
v
State of Victoria (Department of Justice and Community Safety)
(U2023/6068)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – application made outside of the time prescribed in s 394(2) – consideration whether to allow a further period within which application should be made – no exceptional circumstances – extension of time refused - application dismissed.
The applicant, Ms Vanessa McDonald, applied to the Commission on 5 July 2023 under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy following her dismissal by the respondent, the State of Victoria (Department of Justice and Community Safety). The applicant was employed by the respondent from 5 March 2020 until (according to the respondent) on or about 25 February 2022, under a ‘fixed’ (or more likely a maximum) term contract which was to end on 30 June 2022. The applicant was advised that her employment was terminated by letter dated 20 January 2022 in which the respondent set out the reason for the dismissal – that the applicant was unable to perform the inherent requirements of her role. The letter was prepared with a space to insert the date on which the dismissal took effect, but this was not completed when issued to the applicant.
Although dated 20 January 2022, the letter was not sent to the applicant until 9 February 2022 when it was attached to an email also specifying that the applicant’s employment was being terminated. No date on which the termination of employment would take effect is specified. The respondent treated the employment as ending on 25 February 2022 because its acting head of human resources advised payroll services to that effect. The applicant also appears to have understood that the date of her dismissal was in or around this time and perhaps earlier since she specified in her unfair dismissal remedy application that although she did not know the exact date on which the dismissal took effect or the date on which she was told that she was being dismissed, she thought both occurred in “2021”. In my view the reference to the year is plainly a reference to the correspondence received from the respondent dated 9 December 2021 in which the respondent advised the applicant that it was considering terminating her employment. I am satisfied that the applicant’s dismissal took effect on 25 February 2022 and so her application has been made some 474 days late.
It is therefore necessary to consider whether a further period should be allowed for the applicant to make her application. Unfortunately, the applicant has not properly engaged with the application or the issues that are relevant to assessing whether further time should be allowed.
The applicant did not comply with directions issued on 18 July 2023 or those as varied, at the applicant’s request, on 27 July 2023. The applicant did not attend the hearing on 16 August 2023 and did not use the further opportunity afforded to her after the hearing to address matters relevant to the question whether further time for making her unfair dismissal remedy application should be allowed. I heard from the respondent at the hearing, provided the applicant with a transcript and allowed the applicant a further opportunity to file relevant material. I indicated at the hearing that the matter would thereafter be determined on the papers without a further hearing.
The applicant sent correspondence to chambers on multiple occasions since the hearing however she has not filed anything as directed nor anything addressing the matters in s 394(3) of the Act. Based on the content of her correspondence to my chambers it is clear the applicant experiences acute episodes associated with a mental illness. For this reason, the applicant has been afforded multiple opportunities to file materials despite her earlier non-compliance.
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]
Section 394(3) allows the Commission to exercise a discretion to grant an extension of time, if the Commission is satisfied there are exceptional circumstances taking 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 now consider these matters in the context of the application.
Reason for the delay
Absent the applicant having filed any materials in support of her application for an extension of time, and absent the applicant having filed any reply materials following the respondent filing its materials, it is difficult to conclude that there was an acceptable or any cogent reason for the delay. The only reason the applicant advances for the delay, as set out in her initiating application, is that the applicant was gathering her evidence and did not realise that she could make an application without any evidence. I do not accept that as an acceptable explanation for the delay.
By letter dated 9 December 2021, the respondent informed the applicant of its proposal to terminate her employment as it had formed the view, based on medical advice, that she was unable to perform the inherent requirements of her role and invited her to provide any other medical evidence or information that she thought the respondent should consider by 14 December 2021. On 13 December 2021, the applicant sent an email to the respondent in which she said she was in possession of a second medical opinion contrary to the medical advice referred to by the respondent in the letter of 9 December 2021, and that she was in a position to obtain a third opinion by 23 December 2021. These contentions tend to contradict the suggestion that she was seeking evidence after her dismissal, in that she was already in possession of relevant medical evidence.
In any event, the absence of evidence to support her contention that her dismissal was harsh, unjust, or unreasonable is not a reason in and of itself for her to delay lodging the application, particularly a delay of the magnitude apparent in this case. In my view there is no acceptable or cogent reason for the delay given by the applicant. Usually, the absence of a reason or explanation for the delay would weigh against a conclusion that there are exceptional circumstances.
The applicant does not allege that any mental illness from which she suffers contributed to the delay. As I have earlier observed it is clear enough that the applicant currently suffers from some mental illness which, at least in her dealings with my chambers in connection with this application, affects her capacity to respond appropriately and perhaps also to understand that which is required of her in responding to directions and other communications from my chambers. That said I do not have any medical evidence before me about the applicant’s mental illness and what impact, if any, such illness might have had on her capacity to lodge an application within time and whether the applicant’s mental illness explains any period of the delay. However, since the reason for the applicant’s dismissal related to her capacity to carry out the inherent requirements of the position in which she was employed, and that state of affairs appears to have been brought about by the applicant’s mental illness, although the applicant’s explanation for the delay is not satisfactory I do not consider, in all the circumstances, that the absence of a satisfactory explanation for the delay in this case should do anything other than weigh neutrally.
Whether the person first became aware of the dismissal after it had taken effect
I am not in a position, on the material before me, to reach a conclusion that the applicant was notified of the date of her dismissal after the dismissal took effect, because of the absence of any date in the actual letter of termination and there being no other document available to me which would show that the applicant was advised before the termination of her employment took effect, the date on which the employment would end. But to the extent that the termination date was not clear, it obviously became clear at some point in time. As already mentioned, the applicant was unsure of the date on which the dismissal took effect but specified a period in which she thought the dismissal took effect which was earlier than the date on which the dismissal took effect.
But even if the applicant was not aware of the date of her dismissal until after it took effect, in the circumstances of the length of the delay, it is not a matter of any particular significance. There is no dispute that she was aware of the dismissal. This consideration weighs neutrally.
Action taken to dispute the dismissal
On the materials, it does not appear that the applicant took any step to dispute her dismissal. Whilst she certainly took some steps before the dismissal took effect to persuade the respondent not to terminate the employment, there is no evidence the applicant took any action to dispute the dismissal following it taking effect beyond making this very late application. The absence of any step having been taken is a matter that weighs against the applicant.
Prejudice to the employer
The respondent does not contend there is any prejudice and I cannot identify any prejudice that would accrue to the respondent if I were to allow a further period within which the application could be lodged or otherwise. But the absence of prejudice in and of itself is not a matter which points to exceptional circumstances and here I consider the absence of prejudice to be a neutral consideration.
Merits of the application
Absent the applicant giving any evidence about the contentions that she proposes to advance in respect of her application, it is difficult to assess the merits. It is also difficult to assess the merits in the context of what is essentially an interlocutory proceeding, one where the merits are not tested as they would be in a final hearing. Nonetheless, it appears that the applicant’s medical condition had the result that she was not be able to fulfil the inherent requirements of the position in which she was employed. If the respondent was able to establish this at a hearing, then it is unlikely that the applicant would succeed. And I consider that the respondent is likely to be able to establish that the applicant was unable to fulfil the inherent requirements of the position and so establish a valid reason for the dismissal. It also appears in the material that the applicant was given opportunity to respond to the reason for the dismissal and the process adopted by the respondent appears, on the papers, to have been reasonable. In these circumstances it appears that the merits of the applicant’s case are weak and so this is a matter that weighs against a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
Neither party made submissions as to the question of fairness as between the applicant and other persons in a similar position. Nor am I aware of any relevant comparator and so this circumstance weighs neutrally.
Conclusion and Order
In light of the considerations above, I do not consider that there are any exceptional circumstances. The period of delay is lengthy but in the circumstances that I have canvassed is at least explicable; the merits of the application appear to be weak; action to dispute the dismissal was not taken in circumstances where the delay was lengthy, and the other considerations weigh neutrally. Therefore, this is not an occasion on which consideration of whether to allow a further period arises because the jurisdictional precondition - exceptional circumstances - do not exist.
I order that:
The application to allow a further period within which Ms Vanessa McDonald might be allowed to lodge an unfair dismissal remedy application is refused; and
The application (U2023/6068) lodged by Ms Mc Donald on 5 July 2023 outside of the time prescribed in s 394(2) of the Fair Work Act 2009 is dismissed.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
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