s.365 - General protections

Application to deal with contraventions involving dismissal

[1] On 10 October 2022, Ms Lisa Jackson (the Applicant) lodged a general protections involving dismissal application (the Application) with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Application incorrectly named Core and Capacity Disability Support Services as the Respondent. The correct Respondent is Core & Capacity Disability Support Pty Ltd. The Application is amended accordingly.

[2] The Application relates to Ms Jackson's alleged dismissal from employment by Core & Capacity Disability Support Pty Ltd (Core & Capacity) with immediate effect on 20 July 2022. An application made under s.365 of the Act must be made within 21 days of the date the dismissal takes effect, or within such further period of time that the Commission allows. Ms Jackson's application has been made 61 days out of time. I am therefore required to determine whether a further period of time to lodge the Application should be allowed.

[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the Application under s.365 of the Act. Accordingly, the Application will be dismissed.

[4] On 17 October 2022, the parties were advised that it appeared the Application had been lodged out of time. The parties were advised that, in the absence of both parties' consent to a telephone conciliation conference conducted by the Commission, the matter would proceed to an extension of time hearing before a Member of the Commission.

[5] On 24 October 2022, Core & Capacity advised that they did not consent to participating in a telephone conciliation. The parties were advised that the matter would be allocated to a Member of the Commission for hearing in relation to the extension of time.

[6] On 3 November 2022, Deputy President Young, as she was then known, conducted a mention and directions hearing during which directions for the filing of materials and for the filing of the Respondent's Form F8A Employer Response were set. The directions were issued to the parties in written form later that day, along with template responses addressing the criteria for an extension of time.

[7] On 23 December 2022, the matter was reallocated to me for determination. I conducted a determinative conference on 20 January 2023. Ms Jackson appeared and gave evidence on her own behalf, however her written submissions largely went to the merits of her Application. Core & Capacity was represented by Ms Jo-anne O'Brien, Senior Operations Manager.

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the person and other persons in a like position."

• [8] The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are "exceptional circumstances". The test of "exceptional circumstances" in relation to granting an extension of time to lodge and application under s.365 establishes a "high hurdle".[1] A decision whether to extend time under s.366(2) involves an exercise of discretion. [2] The longer an applicant delays making an application the more difficult it will generally be to overcome that hurdle. [3]

• [9] In deciding whether there are exceptional circumstances to enliven the discretion to extend time, the Commission is required to consider and give appropriate weight to each of the matters outlined in s.366(2).[4] My consideration of each matter in the context of Ms Jackson's application for an extension of time is set out below.

• [10] To satisfy this consideration there must be an acceptable reason for the delay.[5] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that will tend to weigh against a finding of exceptional circumstances.[6]

[11] Ms Jackson commenced employment with Core & Capacity on 22 March 2022 as a casual employee. Ms Jackson's oral evidence is that from the time of her dismissal until she lodged her Application she was unable to cope and sought help from a psychologist. Ms Jackson attended Cognitive Behaviour Therapy with a psychologist on 28 July 2022 and 24 August 2022. Ms Jackson submits she was suffering from severe PTSD and situational depression, and on some days she was unable to get out of bed.

[12] Ms Jackson also has a son who requires additional care. Ms Jackson submits she shares the responsibility of caring for her son with her husband, who had also been dismissed from his employment with Core & Capacity. Ms Jackson's son attends various appointments as part of his care requirements. Those appointments are conducted both at home and external to the home.

[13] Ms Jackson relies on letters from her treating practitioner and her psychologist as evidencing a medical reason for the delay. The letters were entered into evidence without objection. The letter dated 20 September 2022 from Ms Jackson's treating practitioner provides that Ms Jackson "has experienced increased stress and anxiety since her dismissal from her employer". The contents of the letter also provide that Ms Jackson had attended two psychologist appointments since her dismissal. There is no indication in the letter that Ms Jackson did not have the capacity to file her Application within time.

[14] The second document relied on to support a medical reason for the delay is from Ms Jackson's treating psychologist. The letter dated 10 November 2022 states that during therapy sessions Ms Jackson had self-reported extremely severe depression and anxiety when compared to the Australian Normative Baseline. The medical opinion expressed by the treating psychologist is that Ms Jackson would benefit from continued therapy and pharmacotherapy as recommended by her treating doctor. Ms Jackson's treating psychologist also recommended she return to work to regain her financial independence. Again, there is nothing in the contents of the letter that suggests Ms Jackson's condition prevented her from making her Application within 21 days.

[15] Ms Jackson submits prior to relocating to Queensland she worked as a Carer in Tasmania and currently possesses the required qualifications and registrations to legally perform the role of Carer in Tasmania. Ms Jackson says she was led by Core & Capacity to believe she could work in Queensland with her current registrations. She submits she later discovered she was required to have "yellow and blue cards" (Work Permits) to enable her to work in Disability Services in Queensland.

[16] Ms Jackson's evidence is that since her dismissal she has attended over 15 interviews and she was subsequently offered each role that she interviewed for. Ms Jackson was unable to accept any of the roles because she did not have the relevant Work Permits required in the state of Queensland. Ms Jackson's oral evidence is that during the months of August and September she continued to apply for roles and attend interviews. Ms Jackson attended an interview on 5 October 2022 and commenced employment in her new role the next day, being 6 October 2022.

[17] Ms Jackson submits after she attended a job interview, her prospective employer assisted her with her application for the Work Permits. Each application took approximately one hour to complete. Approximately two or three weeks after Ms Jackson was dismissed, she had to apply for a name change, which delayed her application for the work permits. Ms Jackson submits the requirement for the name change was due to the fact that her marriage, which took place overseas approximately 15 years ago, was not legally recognised in Australia. The name change application was completed online and took Ms Jackson around one hour to complete.

[18] Ms Jackson's oral evidence is that 3 days after submitting all the requirements for her Work Permit applications she commenced making telephone inquiries with the relevant body as to why she had not yet received the Work Permits. Ms Jackson says her new employer had contacted her inquiring about the length of time it was taking to obtain the Work Permits. Ms Jackson submits she received the Work Permits some four months after submitting the application, following numerous inquiries. Ms Jackson is firmly of the belief that she has suffered both financially and psychologically due to Core & Capacity's failure to inform her of the requirement for her to obtain the Work Permits.

[19] On 25 July 2022, 5 days after her dismissal took effect, Ms Jackson contacted the Commission and was advised that she would need to lodge her Application online. Ms Jackson was aware of the requirement to file her Application online however she did not do so at that time. Ms Jackson's oral evidence is that approximately one week after her dismissal, she also contacted either Legal Aid or Legal Hub Community Legal (Legal Hub). Ms Jackson submits that Legal Hub informed her she only had 21 days to lodge her Application however she did not take any further steps to lodge an application at that time. Ms Jackson later clarified it was Legal Aid she had contacted on 4 August 2022, and she attended a telephone appointment with them on 5 August 2022. Ms Jackson did not file her Application at that time.

[20] Ms Jackson submits after her dismissal she had been experiencing some financial difficulties and on 4 October 2022 she spoke to a representative from Legal Hub. Ms Jackson's evidence is that she was advised to go to a library and access the forms she was required to complete, and to lodge her Application even though it was out of time. Ms Jackson filed her Application the following week on 10 October 2022.

[21] It is well accepted in this Commission that a person may suffer increased stress and anxiety after being dismissed from their employment. Whilst I accept the dismissal caused Ms Jackson stress and anxiety, I have formed the view that the stress and anxiety she experienced did not fully incapacitate her so as to interfere with her ability to make an application on time. In the 61 days from the time of her dismissal to the date of making her Application, Ms Jackson had contacted the Commission to seek advice, sought legal advice on at least two occasions, attended interviews with prospective employers, applied for a name change and submitted an application for her Work Permits. Seeking legal advice, applying for new roles and attending interviews, whether considered separately or together, are not matters that are out of the ordinary or exceptional, nor do they support an inference that Ms Jackson was incapacitated by her poor mental health. I am not satisfied that the matters Ms Jackson relies upon as reasons for the delay in making her Application are exceptional circumstances. This weighs against the granting of an extension of time.

Action taken by Ms Jackson to dispute the dismissal - s.366(2)(b)

• [22] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[7]

[23] Ms Jackson submits she had not taken any steps to challenge her dismissal, other than making this Application. She submits this is because she was suffering from extreme anxiety and distress as a result of the actions of Core & Capacity.

[24] Whilst I do not question the legitimacy of Ms Jackson's claim that she was suffering from stress and anxiety, Ms Jackson did not take any steps to dispute her dismissal, other than lodging the Application. In the circumstances, this weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay) - s.366(2)(c)

• [25] Prejudice to the employer will go against the granting of an extension of time.[8]

[26] Neither party contends there is prejudice to Core & Capacity caused by the delay. The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. In all the circumstances, I do not find that any material prejudice would be suffered by Core & Capacity if an extension of time were to be granted. I find this criterion to be neutral.

[27] Ms Jackson submits she worked for Core & Capacity for a period of four months prior to her dismissal. Ms Jackson submits although she had her Working with Vulnerable People registration which was required in Tasmania, she unknowingly did not possess the required Work Permits to fulfil the role she had been engaged to perform in the state of Queensland.

[28] Ms Jackson alleges she was assaulted on 3 June 2022 by a client whilst driving him to a public bar at the Forest Lakes shopping centre. Ms Jackson submits she reported the incident to the police and her manager at Core & Capacity. Ms Jackson submits prior to the client ceasing care she felt management had not taken her concerns seriously, so she sent a message by WhatsApp to other staff members informing them as to what had occurred. Ms Jackson submits her message was deleted by management, the staff were later notified that Core & Capacity could no longer provide the client with its services, and Core & Capacity subsequently ceased care on or around 1 July 2022.

[29] Ms Jackson further submits during her employment she was bullied by another employee and when she raised her concerns with her manager they were ignored. Ms Jackson submits after raising her concerns her shifts were removed and given to another employee.

[30] Ms Jackson submits rumours were circulated to the effect that she had been turning up at work smelling of alcohol and was gossiping about her clients during handovers. Ms Jackson submits those rumours, which she says were unfounded, were relied on to remove her allocated shifts.

[31] Ms Jackson submits the reason given for her dismissal was that she was a disgruntled employee who had been prone to gossiping. Ms Jackson says she believes the accusation that she was a disgruntled employee was raised because she questioned the processes for dispensing medication put in place by Core & Capacity. Ms Jackson says the alleged gossiping was as a consequence of the complaint she had made associated with the alleged assault. Ms Jackson submits she believes she received a second warning after an incident that occurred in the staff room. Ms Jackson submits the incident involved other staff members and a general message was sent by WhatsApp to make sure the behaviour stopped and that staff were being inclusive.

[32] Core & Capacity submit Ms Jackson's employment was terminated due to several disciplinary matters. It submits Ms Jackson had received two verbal warnings for breaches of company policies and a written "infraction" notice. Core & Capacity submits it had received both internal and external complaints about Ms Jackson's conduct which included the display of unsafe and inappropriate behaviours towards a client and a breach of a client's privacy.

[33] Core & Capacity submit in both instances the matters were dealt with in the same manner as they would have with any other employee who had multiple breaches of Core & Capacity's policies and procedures.

[34] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

Fairness as between the person and other persons in alike position - s.366(2)(e)

[35] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. There were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion to be neutral.

• [36] In establishing whether exceptional circumstances exist, the Commission must take into account the factors listed in s.366(2) of the Act. The expression "exceptional circumstances" while not specifically defined in the Act has been accepted in this Commission to be circumstances which need not be unique, unprecedented, or very rare; but cannot be circumstances that are regular, routine, or normally encountered.[9]

[37] A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to the contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[38] Having considered all of the evidence and submissions as they relate to each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the Application is dismissed.

[39] An order[10] to that effect will be published separately to this decision.

[1] [2014] FWCFB 2288 at [21].

[2] Halls v McCardle and Ors [2014] FCCA 316.

[3] [2014] FWCFB 2288 at [21].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[6] [2018] FWCFB 901, [45].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [45].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.

[9] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]; citing R v Kelly [1999] UKHL 4; [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[10] PR750945.

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