Fair Work Act 2009

s.394 - Unfair dismissal

Commonwealth of Australia represented by Services Australia (formerly Department of Human Services)

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Bazlun Bilkis (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 11 December 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by the Commonwealth of Australia represented by Services Australia (formerly Department of Human Services) (the Respondent) on 29 October 2019 was unfair.

[2] The Commission wrote to Ms Bilkis on 16 December 2019 advising that her application was received outside the 21 day statutory timeframe in which an unfair dismissal application must be lodged and that a decision to extend the time in which she was allowed to lodge her claim would need to precede a determination of the merits of her application. Ms Bilkis' application was lodged 22 days outside the statutory timeframe.

[3] Conciliation regarding the application did not proceed as on 19 December 2019 the Respondent wrote to the Commission requesting that the scheduled conciliation be vacated as there was no utility in it occurring as listed because it intended to raise a jurisdictional objection on the basis that the application was lodged outside the prescribed time limit. The Respondent further stated that until such time as the out of time issue was determined it would not be in a position to discuss a potential settlement of the matter.

[4] Directions were initially issued on 3 February 2020 and were revised on several occasions due to Ms Bilkis' inability to comply with the Directions whilst overseas. The matter was heard by video on 29 June 2020. At the hearing Ms Bilkis appeared on her own behalf. Ms Dita Nasim, a Government Lawyer with the Respondent's Employment Law Team, appeared for Respondent.

[5] Evidence for Ms Bilkis was given by her husband, Mr Mohammed Hussain. Ms Jill Woodward, a Senior Government Lawyer with the Respondent, gave evidence for the Respondent. Neither Mr Hussain nor Ms Woodward were required to give oral evidence.

[6] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Ms Bilkis' application cannot proceed and will be dismissed.

[7] Ms Bilkis commenced employment with the Respondent on 21 May 2018. Ms Bilkis was employed as a non-ongoing employee to perform duties on a casual basis with her name also placed on the Respondent's casual employment register. Prior to being employed by the Respondent, Ms Bilkis had been in receipt of Carer Payment since 16 February 2018. Section 66A(2) of the Social Security (Administration) Act 1999 (Cth) required Ms Bilkis to inform the Respondent of an event or change of circumstance that may affect the payment, e.g. commencing new employment or receiving income, within 14 days after the day on which the event of change occurred.

[8] On 2 September 2019 Ms Bilkis participated in a formal interview with the Respondent in relation to allegations that she had failed to:

• (i) declare and/or under declared her income earned from the Respondent between 21 May 2018 and 2 September 2019 while in receipt of Carer Payment; and

• (ii) advise that she worked in excess of the allowable hours to remain eligible for Carer Payment.

[9] An internal investigation conducted by the Respondent found that Ms Bilkis had failed to:

• (i) correctly declare her income to the Respondent while in receipt of Carer Payment; and

• (ii) failed to notify the Respondent that her circumstances had changed, which had the effect that she was no longer eligible to receive Carer Payment and resulted in her receiving Carer Payments to which she was not entitled totalling in excess of $21,000.

[10] The findings of the internal investigation were referred to the Respondent's Conduct and Reviews Team for their consideration of Ms Bilkis' continuing position on the Respondent's casual employment register. On 19 September 2019 the Respondent wrote to Ms Bilkis advising that she would not be offered any further shifts pending the outcome of this consideration. Ms Bilkis returned to work after a period of absence on 26 September 2019 when she was told that she would not be offered shifts as per the abovementioned letter of 19 September 2019.

[11] On 24 October 2019 the Respondent wrote to Ms Bilkis advising her that consideration was being given to removing her name from the Respondent's casual employment register as a result of the findings of its internal investigation. Ms Bilkis was provided with a copy of the investigation report and invited to provide any comments she may have regarding the Respondent's proposed action, including any additional information which she considered should be taken into account and/or factors in mitigation. Ms Bilkis responded by email on 24, 25 and 29 October 2019.

[12] On 29 October 2019 Mr Carl Princehorn, the Acting General Manager of the Respondent's People Operations Division, wrote to Ms Bilkis advising that "[h]aving considered all the information available to me, I have decided that your name will be removed from the department's casual employment register."[1] The covering email included the following:

"In relation to your potential review rights as a casual (IIE) employee (noting our previous correspondence regarding your request for an appeal), you are encouraged to contact the Fair Work Commission to discuss what options might be available to you, or seek independent legal advice."[2] (underlining added)

[13] Ms Bilkis sent an email to Mr Princehorn on 4 November 2019 regarding the abovementioned decision. Ms Bilkis also contacted what she describes in her submissions as the Respondent's social worker (perhaps part of the Respondent's Employee Assistance Program) and the Commonwealth Ombudsman, who advised respectively that they were unable to assist and did not have jurisdiction. In other developments, on 15 November 2019 Ms Bilkis sent an email to the Commission's complaints inbox, with her email headed "Help for my APS job termination and AFDA record removal request (IIE Casual position in DHS)".[3] The Commission's Client Services area responded to Ms Bilkis on 18 November 2019 (i.e. one day inside the 21 day statutory timeframe) as follows:

Thank you for your enquiry to the Fair Work Commission regarding your termination of employment.

The Fair Work Commission is Australia's national workplace relations tribunal. It is an independent body with power to carry out a range of functions under the Fair Work Act 2009 (Cth). These functions include unfair dismissal, anti-bullying, dispute resolution including general protections and enterprise agreements. Please note Fair Work Commission staff cannot provide legal advice or an opinion about your enquiry.

You may wish to seek free legal advice from a Community Legal Centre by visiting www.naclc.org.au. Alternatively if you are a member of a union or employer organisation, they may also be able to assist.

If eligible, you can make an application to the Fair Work Commission if you believe your dismissal was unfair or believe your dismissal was in breach of general protections.

Before you make an unfair dismissal application (Form F2) you should check the eligibility requirements.

Before you make a general protections dismissal application (Form F8) you should check the eligibility requirements.

Either application should be made within 21 calendar days from the date the termination takes effect and there is an application fee which can be waived on the grounds that its payment would cause serious hardship.

If you have been dismissed from your employment you can only lodge one of these applications with the Commission.

If you require further assistance please contact the Fair Work Commission on 1300 799 675." (Hyperlinks removed, underlining added.)

[14] As previously mentioned, Ms Bilkis' unfair dismissal application was received by the Commission on 11 December 2019.

[15] Section 394 of the Act provides:

"394 Application for Unfair Dismissal Remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

• (a) within 21 days after the dismissal took effect; or

• (b) within such further period as the FWC allows under subsection (3).

(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 similar position." (Legislative notes not included)

Whether to allow a further period for the application to be made under s.394(2)

[16] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

[17] Ms Bilkis submitted that she was not aware of the timeframe for making an unfair dismissal application, reaffirming this to be the case at the hearing. Ms Bilkis also submitted that she was advised that the decision to remove her name from the Respondent's casual employment register was final and that there was no option to review the decision. In addition, Ms Bilkis submitted that from the date she received the correspondence of 29 October 2019 she was not in good mental health and was stressed and upset. Ms Bilkis added that if she had she been in a sound and proper state of mind after being advised that her name was to be removed from the Respondent's casual employment register that she would have made her application within time "at any cost". Further, Ms Bilkis stated in her submissions that she had been referred to a mental health professional agency and was waiting to receive an appointment date. At the hearing, Ms Bilkis submitted that when she received the Commission's response of 18 November 2019, she did not see that part of the response specifying the timeframe for making either an unfair dismissal or general protections application.

[18] Mr Hussain in his witness statement[4] stated that after Ms Bilkis left work on 26 September 2019 shortly after arriving and being advised that she would not be offered any further shifts pending consideration of the findings of the Respondent's internal investigation she was devastated and tried to harm herself. Mr Hussain further deposed that he had a very hard time to calm Ms Bilkis down and prevent her from suiciding.

[19] Among other things the Respondent submitted that:

• Ms Bilkis' contention that she was unaware of her ability to lodge an unfair dismissal application was plainly incorrect given the Commission's response of 18 November 2019 to Ms Bilkis' email to the Commission on 15 November 2019 (see paragraph [13] above), highlighting that the Commission's response stated that either an unfair dismissal or a general protections application should be made within 21 calendar days from the date the dismissal took effect;

• Ms Bilkis was aware of, or reasonably ought to have been aware of, the 21 day time limit for making an unfair dismissal application, adding that ignorance of the timeframe does not constitute an exceptional circumstance warranting an extension of time;

• as to Ms Bilkis' mental health, it was not uncommon for employees to be distressed and shocked when their employment was terminated, adding that this did not generally provide an acceptable explanation for making an unfair dismissal application outside the 21 day statutory timeframe; and

• Ms Bilkis had not provided any medical evidence that she was significantly impacted in her ability to lodge her unfair dismissal application.

[20] The Respondent referred to several decisions in its submissions, including the decisions in Cheyne Leanne Nulty v Blue Star Group (Nulty)[5], Stephan Glumac v Sea Road Logistics T/A Sea Roads[6], Krystena Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare (Casey)[7], Arfan Ikram v Benleader Pty Ltd T/A Victorian International Academy[8] and Joel King v Elecflight Pty Ltd T/A Elecflight Pty Ltd.[9]

[21] The Full Bench in Nulty stated as follows in respect of whether ignorance of the statutory timeframe in respect of a general protections application involving dismissal constituted exceptional circumstances warranting the granting of a further period for the making of an application:

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."[10] (Underlining added)

[22] As to Ms Bilkis' submission that she was upset and distressed after having her name removed from the Respondent's casual employment register, as stated by Deputy President Gostencnik in Casey:

"[16] ... Indeed, stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay."[11]

[23] While I note Mr Hussain's evidence regarding Ms Bilkis' reaction to her name being removed from the Respondent's casual employment register, Ms Bilkis provided no medical evidence to support her contention that but for her mental condition she would have would have made her application within time "at any cost". Indeed, Ms Bilkis' efforts to dispute her dismissal, e.g. writing to the Commonwealth Ombudsman and the Commission (see paragraph [27] below), do not point to her being incapacitated by her mental condition to such an extent that she was precluded from filing her unfair dismissal application within time.

[24] In summary, the reasons for the delay relied upon by Ms Bilkis do not point to the existence of exceptional circumstances.

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

[25] It was not disputed that Ms Bilkis was aware as of 29 October 2019 that her name had been removed from the Respondent's casual employment register.

[26] This does not point to the existence of exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[27] As noted above, Ms Bilkis mentioned in her submissions that after being advised on 29 October 2019 that her name was to be removed from the Respondent's casual employment register that she contacted one of the Respondent's social worker who ultimately advised her that she was unable to assist her regarding a review of her case and suggested that she contact the Commonwealth Ombudsman. Ms Bilkis further submitted that she subsequently sent an email to the Commonwealth Ombudsman explaining her situation, with the Ombudsman advising that it did not have jurisdiction to look at the matter. Ms Bilkis then emailed the Commission on 15 November 2019. I also note that on 4 November 2019 Ms Bilkis sent an email to Mr Princehorn regarding the decision to remove her name from the Respondent's casual employment register and requesting that she not be made ineligible for Australian Public Service (APS) jobs for five years as a result of all documents relating to that decision being retained on a confidential personnel file in her name for five years in accordance with the Administrative Functions Disposal Authority.[12] (Ms Bilkis was advised that the documents would be used as part of selection and/or pre-employment checking process to determine her suitability should she seek employment in the APS[13]).

[28] The Respondent did not address this consideration in its submissions.

[29] As can be seen from above, Ms Bilkis contacted several persons/agencies within the 21 statutory timeframe (including the Commission) following her dismissal. In short, I am satisfied that Ms Bilkis took steps to dispute her dismissal prior to lodging her unfair dismissal application. As such, I consider this factor to be a neutral consideration.

(d) Prejudice to the employer (including prejudice caused by the delay)

[30] Ms Bilkis submitted that there was no prejudice to the Respondent as a result of her unfair dismissal application having been filed out of time.

[31] The Respondent conceded that the lateness of the application had not caused it any substantial prejudice.

[32] Against that background, I consider the issue of prejudice to be a neutral consideration in this case.

[33] In her application Ms Bilkis stated among other things that:

"Before I started the Job with the DHS I went to the Centrelink office and informed them about my employment with the same department. They advised I have to declare my income to the reporting date which my husband always went to the office and reported my income and after certain time period he been advised he do not have to go there and we can report online.

In online there was no option to declare any income and as I am not trained in Career [sic] payment I am trained only on EMS which is New Start payment so I thought that as I am working with the same department my income may be recorded by them as when I was taking calls for the customers I found in their EANS screen the income was pre recorded automatically and in my case I thought it might be the same."[14]

[34] In her submissions Ms Bilkis maintained that she had done nothing wrong. Ms Bilkis submitted that she visited the Centrelink Service Centre in Gungahlin in the Australian Capital Territory before she started her training period with the Respondent to advise of her employment and to learn how to report her circumstances, adding that the staff member advised that her husband could report on her behalf when he visited the Centre in accordance with his reporting obligations. Ms Bilkis also submitted that her incorrect income declaration was not intentional but was an honest mistake and that there was no option available in her mobile apps to report her income online. Beyond that, Ms Bilkis contended that she did not believe there was a valid reason for her dismissal and that she should have received a letter or warning from the Respondent that her debt was increasing as a result of her not correctly declaring her income.

[35] The Respondent submitted that Ms Bilkis' application had poor prospects of success. More particularly, the Respondent submitted that:

• Ms Bilkis had been advised of her continuing obligations to report to it changes to her circumstances and throughout her employment had access to additional information and resources about accurately reporting individual circumstances; and

• Ms Bilkis should have known that she was required to notify it of any changes to her circumstances which may have impacted upon the receipt of Carer Payment, adding that her conduct was indicative of deliberate actions or a gross lack of care which was inconsistent with the continuation of her employment.

[36] The Respondent also contended that there was a valid reason for Ms Bilkis' dismissal and that she was afforded procedural fairness throughout the investigation process and prior to her removal from its casual employment register.

[37] The Respondent's internal investigation report includes the following:

"BILKIS was granted CAR [Carer Payment] from 16 February 2018, and since this time has been obligated to correctly report her fortnightly income to determine her rate of payment. Eligibility for CAR also includes not working over 25 hours per week (inclusive of travel) on a regular ongoing basis.

Analysis of BILKIS' Centrelink customer record shows that between 21 May 2018 and 12 December 2018 she declared gross earnings of $19,756.18, however her actual gross income for this period was $29,653.67. On a number of occasions the amount reported matched the nett pay recorded on BILKIS' payslip, although this was not consistent.

From 13 December 2018 until 2 September 20189, BILKIS did not declare any earnings despite gross income in excess of $36,000 throughout this period. BILKIS did not report any hours worked.

On 12 June 2018 BILKIS contacted Centrelink stating that she would be working full time for six weeks and then reducing her days.

On 20 February 2019 BILKIS contacted the department via phone after returning from overseas. She was informed by the Service Officer that she was not on a fortnightly schedule and that she had not declared any income since 13 December 2018. BILKIS advised she did declare her income using her phone but had issues with "not being able to enter an amount" on some occasions ... There are no further documents in relation to BILKIS attempting to correct her income.

As a result of under-declaring her income, and also failing to advise that she worked in excess of the allowable hours to remain eligible for CAR from 3 June 2018 - 2 September 2019, BILKIS was overpaid CAR by $21,203.99."[15]

[38] It is clear from Ms Bilkis' application that she was aware of her reporting obligations regarding her Carer Payment. The above extract from the internal investigation report reinforces that conclusion. Further, Ms Bilkis' employment with the Respondent, albeit that she was trained on a different social security payment, would have reinforced the relevance income reporting for the purposes of payment eligibility. From a procedural fairness perspective, I note that Ms Bilkis was interviewed on 2 September 2019 as part of the Respondent's internal investigation and on 24 October 2019 was invited to comment on the proposal to remove her name from the Respondent's casual employment register. Against that background, the merits of Ms Bilkis' application do not appear strong.

[39] As such, I consider this factor weighs against an extension of time being granted.

(f) Fairness as between the person and other persons in a similar position

[40] At the hearing Ms Bilkis contended that the Respondent had a duty of care to her, positing that she had no idea that she had been overpaid by Centrelink (in respect of Carer Payment) and that she should have been sent a text message advising her of the need to advise of her changed circumstances/eligibility for Carer Payment.

[41] The Respondent did not address this consideration.

[42] Ms Bilkis' submission is not relevant to this element of s.394(3) of the Act. Accordingly, I consider this factor to be a neutral consideration.

[43] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

"[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."[16]

[44] Ms Bilkis is clearly very upset with what has occurred and what she considers to be the consequences for her future employment prospects in the APS of all documents relating to the decision to remove her name from the Respondent's casual employment register being retained on a confidential personnel file in her name for five years. Her anguish in that regard has been sadly compounded by the consequences of COVID-19 for her extended family overseas in Bangladesh. Nevertheless, as can be seen from the above consideration of the factors set out in s.394(3) of the Act, none of those factors point to the existence of exceptional circumstances in this case, though two of those factors are neutral considerations. Further, those factors, when considered together, do not point to the existence of exceptional circumstances.

[45] As such, having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for Ms Bilkis to make her unfair dismissal application. Accordingly, Ms Bilkis' application cannot proceed and will be dismissed. An order to that effect will be issued with this decision.

[3] Applicant's Outline of Submissions Regarding Section 394 at Attachment 'A'

[5] [2011] FWAFB 975; (2011) 203 IR 1

[6] [2018] FWC 4607

[7] [2014] FWC 4002

[8] [2019] FWC 5360

[9] [2019] FWC 8697

[10] [2011] FWAFB 975; (2011) 203 IR 1 at [14]

[11] [2014] FWC 4002 at [16]

[12] Applicant's Outline of Submissions Regarding Section 394 at Attachment 'D'

[14] Form F2 - Unfair dismissal application at Question 3.1

[16] [2011] FWAFB 975; (2011) 203 IR 1 at [13]

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