Vicki Morley v Paul Angel Medical Pty Ltd T/A Majellan Medical Centre

[2023] FWC 1279

[2023] FWC 1279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vicki Morley
v

Paul Angel Medical Pty Ltd T/A Majellan Medical Centre

(U2023/2636)

DEPUTY PRESIDENT LAKE BRISBANE, 6 JUNE 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

1. Ms Vicki Morley (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Paul Angel Medical Pty Ltd T/A Majellan Medical Centre (the Respondent).

1. On the Form F2, the Applicant states that she commenced her employment with the Respondent on 1 May 2018 and was notified of her dismissal on 3 February 2023. The dismissal was effective on the same day.

1. The Applicant lodged her application on 29 March 2023. The application was lodged 32 days outside the statutory time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.

1. Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application.  A hearing was held before me on 11 May 2023 and 18 May 2023.

Should a further period be granted?

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)         the reason for the delay; and

(b)whether the person first became aware of the dismissal after it had taken effect; and

(c)         any action taken by the person to dispute the dismissal; and

(d)         prejudice to the employer (including prejudice caused by the delay); and

(e)         the merits of the application; and

(f)          fairness as between the person and other persons in a like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]

1. It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. The Applicant states that the reason for delay was that she tried to apply for an unfair dismissal application within the timeframe by making several calls to the Fair Work Commission and every time on those occasions she was given other companies to call to assist with her claim. She also stated that she contacted QCAT, the QLD Law Society, Job Watch and a solicitor from Brisbane Northside Legal who told her to contact the Fair Work Ombudsman in order to fill out a Form F9.

1. The Applicant also stated that she was under a large amount of stress and was on leave at the time of her dismissal and that the loss of her employment had a significant effect on her mental health. She states that she could not follow the GP’s care plan because of financial hardship caused by the dismissal.

1. The Applicant provided the following evidence regarding who she contacted about her dismissal.

1. On 31 January 2023, the Applicant contacted the following:

a)she had a phone conversation with JobWatch. After this phone call, the Applicant received an email from Mr Geoff Charles attaching the following JobWatch fact sheets.

·Unfair Dismissal

·Unfair Dismissal Conciliation Self-Representation Kit;

·Warnings; and

·Workplace Bullying.

b)she states that she had contacted the Fair Work Commission at 10:49am and 10:52am on 13 13 94. This was the Fair Work Ombudsman’s number. The Applicant had contacted the Ombudsman, not the Commission. 

c)she contacted MJT Law at 12:28pm

d)she contacted her doctor obtaining a medical certificate that she was unfit for work from 30 January 2023 to 10 February 2023.

1. On 13 February 2023, the Applicant contacted the Fair Work Commission but hung up before she could reach someone. She contacted the Fair Work Commission on 14 February 2023 at 10.37 am. Ms Morley made contact with a staff member of the Commission to discuss her dismissal within the 21-day timeframe.

1. On 28 February 2023, the Applicant made an inquiry with the Respondent seeking a separation certificate.

1. On 8 March 2023, the Applicant contends that she contacted Macquarie Legal seeking legal advice regarding her matter.

1. On 14 March 2023, the Applicant provided an email from Brisbane North Community Legal Service stating that she made a telephone appointment with a Solicitor between 6:00pm and 8:00pm on 22 March 2023. 

1. The Applicant lodged an unlawful termination application with the Fair Work Commission on 26 March 2023 upon advice from the solicitor. She was informed by a staff member of the Commission that it was the wrong application and withdrew the Application on 28 March 2023.

1. Ms Morley did contact the Fair Work Commission helpline but did not file an application. If accepting Ms Morley’s claim that the staff member of the helpline did not assist her with filing the application, Ms Morley was still informed of the deadline by WorkSafe. This was evident with the email she received from WorkSafe on 31 January 2023 receiving specific factsheets on unfair dismissal which had clearly outlined the 21-day timeframe to lodge an application, the correct Form and the multiple options of how she could lodge an application. 

1. I note that Ms Morley was under stress but was capable of contacting multiple organisations for assistance on this day.

1. I am not satisfied that Ms Morley’s reason for delay was sufficient considering she had received this factsheet on 31 January 2023 and took her until 26 March 2023 to lodge an application. I find this weigh against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant states that she was dismissed on 3 February 2023 on her Form F2 and stated that she was aware of the 21-day time frame at the time of dismissal. The Applicant stated that she did not know how to lodge the application or the process of applying for an unfair dismissal until she was informed about the correct application by a staff member of the Commission on 28 March 2023.

1. The Applicant provided in her oral evidence that she was aware of the 21-day time frame and states that was the reason she contacted the different organisations during this period.

1. This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant did not take to dispute the dismissal except seeking a separation certificate on 28 February 2023. This consideration does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

1. The Respondent did address that an extension could potentially cause a degree of prejudice to the Employer but has submitted that this factor should be neutral in the consideration for the granting of an extension of time. I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[7] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8]  

1. In Gaelene, Manson v Marthakal Homeland Resource Centre Inc [2015] FWC 2880, Commissioner Bissett found that anxiety that did not totally incapacitate the Applicant was not a sufficient reason for an extension of time and stated at [13]

“It is not unusual for a person to suffer anxiety following a dismissal… It is also not unusual for a person to be under the care of a doctor for that anxiety”.

1. In Paroz v Cielo Publishing Pty Ltd[2016] FWC 5283, Commissioner Roe determined that regular communication with the Fair Work Ombudsman is not a sufficient reason for delay, particularly when the Applicant was informed of the Fair Work Commission and the unfair dismissal process.

1. This consideration weighs against an extension of time.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. 

1. I order that the application be dismissed. 

DEPUTY PRESIDENT

Appearances:

V. Morley for the Applicant
L. Hogg from Moray and Agnew Lawyers appearing on behalf of the Respondent.

Hearing details:

11 May 2023
18 May 2023
Hearing via Microsoft Teams

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[8] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].

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