s.394 - Unfair dismissal

Extension of time (s 394(3)) - no exceptional circumstances - application dismissed

• [1] This decision concerns an application made by Ms Karen McBride for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Ms McBride's employment with J.A. Krieger Forestry Services (respondent) terminated on 9 September 2021. Section 394(2) of the Act states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 30 September 2021. Ms McBride's application was lodged on 5 October 2021, five days out of time. In order for Ms McBride's application to proceed, she requires the Commission to grant a further period of time within which to bring her application.

• [2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are 'exceptional circumstances.' I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

• [3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to Ms McBride's application.

• [4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Ms McBride contended that she was unable to lodge her application on time because of a number of factors. First, Ms McBride stated that she was not aware of the time limit for lodging an unfair dismissal application. Secondly, she said that she had been unwell for months around the time of the dismissal and afterwards, and that she had had pneumonia, for which she had required a chest X-ray. Thirdly, Ms McBride said that following her dismissal she had been depressed and had been finding it hard to cope. In this regard, Ms Frances Richmond, a former co-worker, said that she was aware that Ms McBride had had 'severe mental anguish concerning her sudden termination at work' and that Ms McBride had not been able to function normally on a daily basis, due to depression and stress. Fourthly, Ms McBride said that following her dismissal she had been very busy with various matters, including her inquiries of the Fair Work Ombudsman (FWO) as to which award covered her employment, dealing with WorkSafe about her concerns as to the respondent's use of chemicals, attending to a residential tenancy dispute with her landlord, and responding to a notice that she serve jury duty.

• [5] I am not satisfied that Ms McBride has established an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application, or that the matters to which she refers are exceptional. First, the fact that a person is unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay. Information about filing unfair dismissal applications, including the 21-day lodgement requirement, is available on the Commission's website. Secondly, whilst I accept that Ms McBride was unwell around the time of her dismissal and afterwards, I am not satisfied that her illness prevented or seriously impeded her lodging an unfair dismissal application, a process which involves the completion of a very simple form in any one of a variety of simple ways. The only medical evidence produced by Ms McBride was a chest X-ray dated 14 September 2021, and a form from her doctor dated 26 October 2018 which appears to be an old referral for an ultrasound. I am not persuaded that Ms McBride's illness was a significant factor in the late lodgement of her application. Thirdly, I accept that Ms McBride was upset by her dismissal, and also that she was depressed, but I do not accept that she was not able to function normally, because this is inconsistent with Ms McBride's statement that, after her dismissal, she was busy dealing with the FWO, WorkSafe, and other matters. If she was able to function well enough to attend to those matters, I see no reason why she could not have lodged the unfair dismissal application within the 21-day period. Fourthly, I do not accept that Ms McBride was too busy to lodge her unfair dismissal application on time, or that this would be an acceptable reason for the delay.

• [6] In my assessment, the matters raised by Ms McBride as reasons for the delay in lodging her unfair dismissal application are not acceptable or reasonable explanations for the delay, nor are they exceptional matters, either individually or when taken together. The consideration in s 394(3)(a) tells against an extension of time.

• [7] The considerations in ss 394(3)(b), (c), (d) and (f) are in my view neutral factors in the present matter. Ms McBride was notified of her dismissal on the same day that it took effect (s 394(3)(b)). She therefore had the benefit of the full 21-day period to lodge her unfair dismissal application with the Commission. Ms McBride did not take action to dispute the dismissal aside from lodging her application (s 394(3)(c)). I note that her inquiries of the FWO concerned whether she had been correctly paid; I do not regard them as a step taken to dispute her dismissal. There is no evidence of prejudice to the employer (s 394(3)(d)). To the extent that the absence of prejudice to the employer could be regarded as a factor telling in favour of an extension of time, I would accord it minimal weight. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms McBride and other persons in a similar position (s 394(3)(f)).

• [8] In considering whether there are exceptional circumstances, the Commission is required to take into account the merits of the application (s 394(3)(e)). Ms McBride said that, although she was employed on a casual basis, she had believed that she would work for the entire year, as she had worked on a largely continuous basis in each of the previous five years, but on 2 September 2021 she was advised that she would not be required for the upcoming grafting programme. Ms Justine Krieger, the sole trader who owns the business, later confirmed to Ms McBride that the 'grinding and foliage' work on which Ms McBride had been deployed had now ended, and that she did not require Ms McBride to work on the grafting programme. Ms McBride said that she had in fact already commenced to undertake the grafting work, but that several other people were later hired to do this work instead of her. Ms McBride said that she believed that the real reason for her dismissal was related to the fact that she had made a number of enquiries or complaints to Ms Krieger to the effect that the Silviculture Award, rather than the Nursery Award, covered her employment, that she was incorrectly classified and therefore underpaid, and that the respondent had also failed to pay her overtime correctly. Ms McBride contended that her dismissal was unfair because she had raised legitimate concerns about her entitlements and that, had she not done so, she would still be employed.

• [9] Ms Krieger said that Ms McBride was a casual employee whom she had decided not to reengage because the work for which she had been engaged, namely 'grinding and foliage' work, had been completed. She denied dismissing or not engaging Ms McBride because of her complaints or inquiries regarding her entitlements. Ms Krieger said that Ms McBride had only ever worked on a seasonal basis, 'off and on', and that she never guarantees the length of time for which a casual will be engaged because of the seasonal nature of the relevant work and the variable budget of her principal client, HVP Plantations (HVP). Ms Krieger said that HVP had become 'fed up' with Ms McBride because of her views about the use of chemical spraying, and that Ms McBride was not qualified to voice opinions about this because she did not have a degree and was not a qualified horticulturalist. Ms Krieger said that there had been certain interpersonal tensions between Ms McBride and her supervisor, Ms Tanya Martin, who said in a witness statement that she had felt bullied by Ms McBride and could not trust her. Ms Krieger said that Ms McBride's employment was covered by the Nursery Award, and that the FWO had written to her advising that Ms McBride was not covered by the Silviculture Award.

• [10] An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form any concluded view about the merits of the application. The merits turn on disputed points of evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. In my opinion Ms McBride has a reasonable prima facie case. The respondent has an arguable defence. The merits do not involve exceptional circumstances. They are a neutral consideration.

• [11] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various considerations are considered individually or together. Ms McBride did not establish an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weighs in favour of an extension.

• [12] As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. Ms McBride's unfair dismissal application is therefore dismissed.

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