Venina Ranatora v Australian Laboratory Services Pty Ltd
[2024] FWC 1959
•30 JULY 2024
| [2024] FWC 1959 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Venina Ranatora
v
Australian Laboratory Services Pty Ltd
(C2024/4014)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 30 JULY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – out of time
Issue and outcome
On 14 June 2024, Ms Venina Ranatora (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Australian Laboratory Services Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.
It is uncontroversial that the Applicant’s dismissal took effect on 20 May 2024 and was therefore lodged four days outside of the statutory period.
Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The Applicant requested a hearing and at the commencement of the hearing, the parties were informed of the factors the Commission considers when determining whether an extension of time should be permitted.
Having considered those factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[3]
Background
The Applicant was employed by the Respondent from 19 July 2022 to 20 May 2024 as a Sample Preparer at the Respondent’s Geochemistry laboratory in Perth.
The Respondent submitted that the Applicant ceased work on 7 June 2023. The Respondent was advised that she had been diagnosed with cancer. A medical certificate was provided at that time and the Respondent stated that no further evidence was ever provided to it by the Applicant.
Given the seriousness of the condition, the Respondent allowed the Applicant an extended period for treatment and recovery. After short periods of personal leave and annual leave were exhausted, the Applicant was on unpaid sick leave for the next 10 months. The Respondent noted that all contact between the parties over this period was initiated by the Respondent.
In early January 2024, it is said that the Applicant advised she would be able to return to work on reduced hours and on restricted duties.
The Respondent said that it requested a return-to-work letter from the Applicant’s medical practitioner. However, despite numerous requests from the Respondent, the Applicant provided no medical advice and no date of return.
On 14 March 2024, the Respondent sent a letter to the Applicant formally requesting information including whether there were any modified duties the Applicant may be capable of performing. The Applicant was said to have assured the Respondent by phone that she would contact her doctor, but no further communication was received from the Applicant.
On 14 May 2024, the Respondent sent a letter to the Applicant stating: ‘[u]nless you can return to your previous position as a Sample Preparer or provide details from your practicing doctor on any restrictions we can consider by Monday 20 May 2024, we will have no alternative but to terminate your employment.’
The Respondent submitted that no response was received from the Applicant and her employment was terminated on 20 May 2024.
On 10 June 2024, the Respondent received an email seeking from it a reference report for the Applicant. The email stated:
“Hello…
Venina Ranatora has passed on your details as a referee.
Venina is interviewing for a role and the new employer has asked for a reference report through Referoo.
It would be greatly appreciated if you could take a few minutes to click the link below and answer the employer’s questions. Here are the checks the candidate’s recruiter would like you to completed.”[4]
The Applicant conceded that her application was lodged late and noted that she was unaware that she missed the 21-day timeframe, as she had experienced complications with chemotherapy treatment, having suffered a sudden mild stroke that month, and was still undergoing chemotherapy treatments.
The Applicant provided several documents including histopathology results and the like. One document, from a Dr Kevin Weng Siew, Oncologist, undated, confirmed that the Applicant had suffered a suspected stroke on 3 May 2024 and was fortunate to have made a full recovery. It was further noted that the Applicant was on adjuvant chemotherapy until 4 July 2024.
Consideration
3.1 Extension of time
Consideration now turns to whether to extend the 21-day period within which the application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a similar position.
It has been said that proceedings not commenced in time should not be entertained.[5] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[6]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[7] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[8] Exceptional circumstances can 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.[9]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.”[10]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.
3.2 Reason for the delay
In Pottenger v Department of Caffeine,[11] Deputy President Colman observed that 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,[12] or a reasonable explanation.[13]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[14] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[15]
The Applicant details having been afflicted with cancer and having suffered a stroke. In addition, she is a mother of four and her husband passed away in 2019 from Stage IV cancer. It is understandable why one would have a level of great sympathy for the Applicant given the hardships endured and the health challenges faced.
However, the Respondent made a salient point. Prior to 10 June 2024, in the period of the delay, the Applicant was not so incapacitated that she could not apply online for a job. Whilst the Applicant presses that she did not attend an interview for that job and that her doctor would not clear her for employment related activities, this does not in turn mean that she was functionally disempowered by her health issues from applying for new work. It is observed that the documentation from Dr Siew indicates that the Applicant suffered a suspected stroke on 3 May and was fortunate to have made a full recovery.
In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[16] The evidence before me shows that while the Applicant purports to having been so incapacitated by her health issues she was unable to file her application in this Commission on time, she was, nevertheless, capable of applying for a job online
Whilst I am of no doubt that the Applicant was afflicted by serious illnesses, those illnesses, whilst incapacitating her in respect to her work as a Sampler, did not incapacitate her to the extent that she was not capable of acting in her own capacity and engaging in a recruitment process for a prospective job. In the days after her dismissal, it is clear the Applicant was capable of pursuing a new employment opportunity and it can therefore be safely inferred that if the Applicant was capable of completing an application for work, the Applicant was capable of completing an online application for unfair dismissal in the Fair Work Commission.
The Applicant made mention she was not aware of having missed the 21-day deadline. However, it is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[17] As noted, the Applicant was not so incapacitated that she could not apply for a job.
It is accepted that the Applicant is receiving adjuvant chemotherapy and appears to have done so whilst applying for a job. Further, the Applicant’s Oncologist states that she has fully recovered from her stroke and she is in remission. I am not persuaded that the Applicant’s illness has contributed to the delay. The other reasons relied upon by the Applicant are insufficient to explain part of, or the entirety of, the delay. These findings in culmination weigh against a finding of exceptional circumstances.
Whilst I have considered the delay as the period beyond the 21-day period, regard has been had to the circumstances from the date the termination of employment took effect. Considering the totality of the evidence, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period of the delay in lodging her application. This weighs against the granting of an extension of time.
3.3 Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to dispute the dismissal. On balance, this factor weighs neither for nor against an extension of time.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of an extension of time. In the present case, I consider this to be a neutral factor.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[18] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[19]
With regard to the Applicant’s substantive case, she has relied upon a contravention of s 352 of the Act. The Respondent pointed out that the Applicant asserted that she was protected from adverse action as she was temporarily absent due to illness. However, the Respondent submitted that the Applicant was absent from work for over 10 months prior to the dismissal – hence not a ‘temporary absence’ as defined in reg 3.01 of the Fair Work Regulations 2009 (Cth).
It is to be appreciated that evidence on the merits is rarely called at an extension of time hearing and as a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[20] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. However, based on the submissions provided the Applicant’s application borders on being absent merit. Notwithstanding, in the absence of evidence, I consider it appropriate to find the factor neutral albeit the Applicant’s substantive case as currently supported, appears weak.
3.6 Fairness as between the applicant and other persons in a similar position
The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist. Again, whilst having compassion for the Applicant given the hardships she has faced over the last five years, the factors considered under s 366(2) either do not favour a granting of an extension or otherwise are neutral. In my view and for the reasons given, the circumstances of this case are not exceptional, either individually or when considered together and as such I do not consider it fair and equitable to extend the time in which the Applicant could make her application.
DEPUTY PRESIDENT
Appearances:
V Ranatora, the Applicant.
D Van de Hoef for the Respondent.
Hearing details:
2024
Perth (by telephone):
24 July.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] PR777499.
[4] Digital Hearing Book, 28.
[5] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[6] Ibid [21].
[7] (2011) 203 IR 1, 6 [15].
[8] Ibid 5 [13].
[9] Ibid 5–6 [13].
[10] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[11] [2018] FWC 3403, [31].
[12] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[13] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[14] Stogiannidis (n 10) 165 [39].
[15] Ibid.
[16] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277, [15].
[17] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[18] (1997) 140 IR 1.
[19] Ibid 11.
[20] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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