Fair Work Act 2009

s.394 - Unfair dismissal

Compass Group (Australia) Pty Ltd T/A Mining Sites Utilities Worker Division

Application for an unfair dismissal remedy - dismissed.

[1] Ms Samura (the Applicant) applied for an unfair dismissal remedy, having been dismissed from Compass Group (Australia) Pty Ltd (the Respondent) on 18 September 2020. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] The Applicant concedes that her application was filed on 30 April 2021 and was therefore submitted some six months after the statutory deadline. However, she attributes the delay in filing her application on depression following her dismissal, grief following the loss of a relative one week prior to her dismissal and the miscarriage of one of her twins.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) 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:

(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

(f) fairness as between the person and other persons in a similar position.[1]

[5] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[6] By way of context the Applicant does not speak English as a primary language, and whilst she did not request an interpreter, Chambers nevertheless arranged for the Applicant to access the Workplace Advisory Service to obtain guidance concerning her application.

[7] It appeared that the Applicant worked for the Respondent on a remote mine site in the Pilbara region of Western Australia providing services such as cleaning accommodation units.

[8] An altercation appears to have occurred on 21 August 2020 between the Applicant and a work colleague. The letter of termination sets out that the Applicant and her colleague were in disagreement about how to clean a unit. The disagreement between them continued whilst they were driving to another location. On arrival at that location, namely the site laundry, both exited the car. According to the Applicant, her work colleague slapped her across the face. In self-defence, the Applicant said she returned the slap in kind. According to the Respondent, both employees were dismissed because of the incident.

[9] The Applicant gave evidence that she received an email from the Respondent on 18 September 2021 that attached a termination letter. Whilst she initially gave evidence that her dismissal took effect on 11 September 2020, during the hearing, the Applicant changed the date by which her dismissal took effect to 18 September 2021. The Respondent took no issue with this.

[10] On 18 and 22 September 2020, it appears that the Applicant sent text messages to the Site Manager at Whaleback (a mine site), requesting copies of her record of interview and a report she had left in the office about what had happened between her and her colleague.

[11] In respect of her health, the Applicant tendered a medical certificate[2] and a referral letter to the doctor in charge at King Edward Memorial Hospital.[3] The oral testimony of the Applicant, in addition to the aforementioned direct evidence, suggests that she had become pregnant with twins on or around early September 2020. The referral letter detailed the failure of Twin B at 9.3 weeks. The medical certificate[4] set out that the Applicant had been pregnant since 5 September 2020 and that she had experienced problems during her pregnancy for the period of 5 September 2020 to 31 May 2021 - noting it would have been difficult for her to be able to attend on the remote site. The medical certificate was dated 17 May 2021.

[12] At the hearing, the Applicant explained that she had taken steps to challenge her dismissal because she knew her dismissal was unfair from the outset. Her plan was to take the matter to court because of the unfairness.

[13] She noted that she had contacted a union and had spoken to a woman who explained to her the procedures about such cases and booked for her to see a lawyer. However, the Applicant stated that due to her health, she missed the call with the lawyer as she was at the hospital and was not able to go forward with the legal appointment.

[14] Insofar as the Applicant was grieving the loss of a relative, the Applicant detailed that a relative in the United States had passed away a week prior to her dismissal. In culmination with the loss of her job, that news saw her becoming markedly depressed, such that she was unable to look after her own children.

[15] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[5] 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. 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.

[16] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account the factors that have been detailed at paragraph [4] of this decision. Each of these factors are considered below.

3.1 Reason for the delay

[17] 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.[6] 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.[7]

[18] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[9]

[19] The parties were informed of the factors the Commission takes into account when determining whether to grant an extension of time.

[20] At the time of her dismissal, the Applicant contends that she was so incapacitated with grief and depression that she was unable to make her unfair dismissal application. While sympathetic to the Applicant's loss of a relative, there is simply no evidence to corroborate such an event. The Applicant was informed of the loss a week prior to her dismissal but was not so incapacitated that at that point that she alerted her employer to the issue.

[21] Close to the time of her dismissal, the Applicant spoke of experiencing depression due to her job loss. Understandably, the Applicant gave evidence that the end of her employment had affected her mental state. I accept that the loss of a job may result in heightened anxiety and being upset, particularly if the termination of employment was involuntary. However, the referral letter and medical certificate make no reference to this particular depressive episode. I observe the following points about the medical letter of 17 May 2021:

a) it provides that whilst pregnant from 5 September 2020, the Applicant has had several problems, but it does not specify depression;

b) it does not traverse whether the medical practitioner treated the Applicant before 17 May 2021;

c) it refers only to the Applicant having a number of issues that would have been difficult for her to be able to attend on remote sites from 5 September 2020 until 31 May 2021; and

d) the medical letter does not provide contemporaneous medical evidence as to the Applicant's state of mind between the date of her dismissal and the filing of her unfair dismissal application.

[22] Near on two months after her dismissal, the Applicant was informed of the loss of Twin B. As acknowledged by the Respondent, there is deep sympathy for the Applicant concerning the loss of her baby, and the following reasoning does not in any way detract from the Applicant's loss or the emotions that she experienced at this time.

[23] I accept that for a period of the delay, namely from on or around 11 November 2020 for a period, the Applicant was contending with the emotions arising from the loss of her baby. Further, I am hesitant to place an arbitrary limit as to the length of that grief and am content to arrive at the finding that it extended to the making of the application on 30 April 2020. However, the evidence shows that there was a delay of near four weeks after the statutory deadline before the Applicant experienced the loss of her child.

[24] The evidence provided was that the Applicant was concerned about the fairness of her dismissal from 11 September 2020. Further, she had purportedly spoken to a union and had an appointment to see a lawyer. While the Applicant's evidence suggests that such meeting did not eventuate, it remains that the unfair dismissal application form available from the Commission, is simple and straightforward. Furthermore, there is extensive guidance available on the Commission's website as to the lodgement of such an application; including lodgement over the phone. The materials on the Commission website are developed with the view that those accessing the forms and guides may speak and read English as a second language.

[25] On the material before me, I am unable to conclude that the Applicant was incapable of filing an unfair dismissal application during this four week period. Perhaps more importantly, there was no medical evidence, general or otherwise, as to why the Applicant was so incapacitated that she could not file an application in the days preceding and post the statutory time limit up until the loss of Twin B.

[26] I have considered the delay as the period beyond the 21-day period, and while the application was made several months late, I am satisfied that for part of the delay, the Applicant presented an acceptable explanation. However, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the remainder of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[27] For the reasons detailed at paragraph [9] of this decision, I am of the view that the Applicant became aware of her dismissal on 18 September 2020. I, therefore, consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[28] The Applicant gave evidence of having spoken to a woman at a union and about her intent to seek further legal advice regarding her dismissal. However, I am not satisfied that were these were actions taken by the Applicant dispute her dismissal. And while the Applicant requested answers about the basis of her dismissal and asked for her record of interview and a report about the interactions she had with her colleague, the evidence still does not lead to a finding that action was taken to dispute her dismissal. In all of the circumstances, I am satisfied that the lack of action weighs against the grant of an extension.

3.4 Prejudice to the employer

[29] I agree with the Respondent's submission that the factor of 'prejudice' is a neutral consideration in all of the circumstances.

3.5 Merits of the application

[30] In Kornicki v Telstra-Network Technology Group,[10] 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). In that case, 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.[11]

[31] Evidence on the merits is rarely called at an extension of time hearing. 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 lodge her or his application.[12] 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. It is for these reasons that I have concluded this factor to be one that is neutral. However, I make the following observations.

[32] Whilst the Applicant has contended that she was hit first by her colleague and that her action of slapping her colleague back was in self-defence, this evidence has not been tested. Further, it is to be appreciated that there is accepted jurisprudence when fighting has been established.[13] What emerges from such jurisprudence is that whether a dismissal arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally, the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable.[14]

3.6 Fairness as between the person and other persons in a similar position

[33] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[15] where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[16]

[34] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed by both, and as such, consider it a neutral consideration.

[35] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

[36] While appreciative that the Applicant has provided an acceptable reason for part of the delay, I have nevertheless concluded that the lack of reasonable explanation for the remaining part of the delay weighs against granting an extension of time. Having regard to the reasons for the delay, in culmination with the other factors one considers under s 394(3), which are predominately neutral (with the exception of one which weighs against granting an extension of time), I consider that it is not fair and equitable to grant the extension.

[37] It follows that the Applicant's application for an unfair dismissal remedy is dismissed. An Order[17] will be issued with this decision.

[1] Fair Work Act 2009 (Cth) s 394(3).

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; [2011] 203 IR 1 ('Nulty').

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 [39].

[8] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [40].

[9] Mr Ke Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

[10] Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[12] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.

[13] AWU-FIME Amalgamated Union v Queensland Alumina Limited [1995] IRCA 346; (1995) 62 IR 385 [22].

[14] Tenix Defence Systems Pty Ltd v K Fearnley Print S6238 22 May 2000.

[15] [2015] FWC 8885.

[17] PR730094.

Printed by authority of the Commonwealth Government Printer