Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - extension of time - exceptional circumstances not established - application dismissed.

[1] Ms Renae Burke was employed by Mamre Association Inc (Mamre) from 24 April 2017 until her employment was terminated on 14 August 2017. Ms Burke has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) (the s.365 application) alleging that she was dismissed in breach of the general protection provisions of the Act. Ms Burke claims she was dismissed for exercising a workplace right to make a complaint (s.340) and/or on the basis of discrimination (s.351), without having nominated an attribute within s.351.

[2] Ms Burke made her application on 10 September 2017.

[3] Section 366 of the Act states:

(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.'

[4] For Ms Burke to have made her application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 4 September 2017. The application has been made six days out of time.

[5] Ms Burke seeks an extension of time within which to make her application.

[6] A hearing was held on 16 November 2017. Ms Burke represented herself. Mamre sought leave pursuant to s.596 of the Act to be represented by Mr Chris Muir, Director of Employer Services. Leave was not granted for Mamre to be represented by Mr Muir, as I determined after hearing from Ms Rachel Drew, Director, that Ms Drew was competent to appear before the Commission and was well across all of the relevant material. I determined that Ms Drew would not be troubled in asking questions of Ms Burke in cross-examination. I also did not consider the matter was sufficiently complex to require representation of a paid agent.

[7] Ms Burke was telephoned by Mr Matt Wilson, Manager, Support Services North on 14 August 2017. Mr Wilson informed Ms Burke that her employment was terminated

[8] Ms Burke informed Mr Wilson that she was dissatisfied with the decision to terminate her employment, and requested to speak with Mr Wilson's manager. Mr Wilson informed Ms Burke that Ms Julie Johnson was the acting director of Mamre.

[9] On 15 August 2017, Ms Burke attended Mamre's premises and waited for Ms Johnson to become available to speak with her. Ms Burke waited for approximately three hours to meet with Ms Johnson. A very brief conversation took place, and it was Ms Burke's evidence that Ms Johnson said to her that she would consider her complaint, and her employment was therefore suspended.

[10] At approximately 2.30pm on 15 August 2017, Ms Johnson sent to Ms Burke the following email:

Since having our brief unplanned meeting today I would like to re-confirm with you that your employment with Mamre has been terminated and you have been unsuccessful with completing your six month probationary period. Your termination date is August 14th 2017.

I was surprised to hear that you had waited for over 3 hours to see me this morning. I apologise for unintentionally keeping you waiting but I did not realise that you were in reception when I arrived into work this morning. I had to go straight into a planning session with a family.

If you have a complaint/s with regards to Mamre staff then I am happy to accept this in writing. I will then look into your concerns. Your termination and potential complaint are separate issues. I would like to reiterate that your employment with Mamre has been terminated.

I request that you send your timesheet to Mamre as soon as possible for any hours worked between Monday 31/7 through to Sunday August 13, 2017.

Mamre will be informing the three families that you were working with that you no longer work for Mamre.

[11] On 15 August 2017, Ms Burke sent to Ms Johnson a detailed email. The email concluded as follows:

'I would like to appeal the decision made to cease my employment. I don't believe my actions justify the punishment I have received especially as none of the allegations relate to my work with the kids or families.'

[12] On 17 August 2017, Ms Johnson sent the following email to Ms Burke:

As you well know, I was not prepared nor expecting to have to meet with you so unexpectedly on Tuesday morning. When I said hello to you when I arrived with a parent I did not know that you were the person waiting for me in reception. After the meeting, I was extremely surprised to learn you were in reception and that you had been waiting to see me for close to 3 hours. When I came out of the meeting with the parent (which was a very intense session) my plan was to driver her home so she could debrief, but instead I had to take her to the taxi rank to send her home because you were so persistent and adamant that you had to see me. AS you may well understand, I had no time to think through (nor had I yet seen your email from the evening before asking me to contact you asap) Mamre's position in relation to your termination.

Post meeting with you and upon reflection I cannot suspend you when Matt Wilson spoke to you on Monday night and terminated your employment with Mamre. H has that authority and I support him in this decision. As I explained in my email after we met, you can put in a complaint to Mamre but this is a separate issue and will not change the termination of your employment with Mamre.

Renae your persistent stance in relation to insisting on seeing me on Tuesday morning only confirms for me the concerns and issues Mamre staff have been experiencing in relation to your probationary period with Mamre.

If you wish to continue to work with the families, you have been connected too (sic) through Mamre you will need to communicate with them privately and they will need to make this decision themselves. We have informed the families that you no longer work for Mamre.

I will treat your documentation as a complaint and will peruse the information you have provided to me and will respond to your complaint as soon as I can. Again, I need to reiterate your complaint is a separate matter to your termination of employment.

[13] On 31 August 2017, Ms Johnson emailed Ms Burke as follows:

Firstly, thank you for contacting Mamre regarding your concerns in relation to Induction and Orientation to Mamre. I have also gathered information form, and spoken to the relevant staff at Mamre you had named in your documentation.

Mamre is currently reviewing all internal processes and procedures relating to induction, orientation and training requirements and believe that with implementing an increased variety of methodologies for conducting these processes, the concerns you raised will be addressed for newly recruited Support Workers moving into the future. These new processes reflect Mamre's ongoing commitment to continuous improvement.

As you can appreciate with the soon to be rolled out NDIS scheme Mamre is implementing significant changes in preparation for this transition. I appreciate you bringing your concerns to my attention and advise that we take all feedback seriously.

[14] Ms Burke contended that she was awaiting Ms Johnson's reply, and upon receiving it she was dissatisfied, and resolved to begin proceedings against Mamre. She thought that Ms Johnson would investigate the matter in her favour, and she wished to avoid making an application to the Commission as she had hoped it could be sorted between the parties. She thought that she might have 28 days to file the application, or alternatively, 21 working days.

[15] During the hearing she stated she consulted with a paid agent on or around 6 September 2017. The paid agent informed Ms Burke that she had 21 days from the date of the dismissal, and Ms Burke became aware at this time that the application was not made within the time limit.

[16] Ms Burke's explanation for the failure to make the application between 31 August 2017 when she received Ms Johnson's response, and 4 September 2017 is that she was not aware it had to be made within 21 days, and she was busy working. In addition, she was somewhat shocked at having been dismissed.

[17] On 6 September 2017 at 5.19pm, Ms Burke made an application to the Commission under s.773, to deal with an unlawful termination dispute. On 7 September 2017, the Commission emailed Ms Burke a letter informing her the application appeared to be an incorrect application, given Ms Burke appeared to be entitled to make a general protections application.[1]

[18] Ms Burke gave evidence during the hearing that when she completed the form she was aware that the unlawful termination application was made out of time, and she provided reasons for making the application outside of the 21 day time limit.

[19] The letter to Ms Burke from the Commission states the following:

For both general protection disputes involving dismissal (Form F8) and unfair dismissal applications (Form F2), there is a time limit of 21 days from day after the dismissal takes effect within which the application should be made.'

[20] Ms Burke's evidence was that upon receiving the Commission's letter dated 7 September 2017, she fixed the issue and made the correct application on 10 September 2017. The reason for the further delay is that she did not have time to resubmit the form on 8 September 2017 as she worked all day, including an overnight shift. On 9 September 2017, she had a family commitment that could not be avoided.

[21] Ms Burke also submitted that the reason for the delay is that she is young and inexperienced in such applications.

[22] Ms Burke submitted that the Commission should find the reasons for the delay constitute exceptional circumstances. Ms Burke submitted that she attempted to challenge the dismissal.

[23] Ms Burke contended that the delay would not prejudice the employer, and relevant to the consideration of the merits of the application, there is substantial merit in her application. As to fairness as between herself and other people in a like position, she submitted that she is young and inexperienced in making such an application.

[24] Mamre submitted that none of the circumstances relevant to the Commission's consideration constitute exceptional circumstances.

[25] Mamre contended that the reasons for the delay are Ms Burke's alone. Mamre had made it clear to Ms Burke in written correspondence on numerous occasions that her employment had ended, and any investigation by Ms Johnson was relevant to a complaint only, and not to enliven an employment grievance.

[26] It was submitted that Ms Johnson's consideration of Ms Burke's grievances, even with a response date of 31 August 2017 could not be said to have contributed to the application being made late. There was still considerable time between 31 August 2017 and 4 September 2017 for the application to have been made within time.

[27] Mamre did not contend that it would be prejudiced by the granting of an extension of time.

[28] Mamre submitted that Ms Burke's claim is without merit. As to fairness between Ms Burke and people in a like position, Mamre submitted that Ms Burke was not incapacitated, so as to be the reason for the delay. She was aware, by 6 September 2017 that the application needed to have been made within 21 days, and still did not make the application until 10 September 2017.

[29] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

'[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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.' [Endnotes not reproduced]

[30] For exceptional circumstances to arise as contemplated by s.366 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

Has the Application been filed within the statutory 21 day time limit?

[31] By reference to Ms Johnson's written communication to Ms Burke on 17 August 2017, there appears to be a concession by Ms Johnson that she said to Ms Burke while in a rush on 15 August 2017, and on her account unprepared for the discussion, that Ms Burke's employment was suspended, and she would reconsider Mr Wilson's decision to terminate Ms Burke's employment.

[32] I accept on the balance of probabilities that this was said to Ms Burke on 15 August 2017. While it was not referenced in the communication on 15 August 2017 to Ms Burke, it was referenced two days later.

[33] Even if Ms Burke sought to rely on the statement made by Ms Johnson on 15 August 2017, it was clear to Ms Burke on receipt of Ms Johnson's communication on 17 August 2017 that any statement made by her that the employment was suspended did not stand. Ms Johnson stated that Mr Wilson did in fact have authority to have terminated Ms Burke's employment on 14 August 2017, and Mr Wilson's decision stood.

[34] If Ms Burke was under the impression until 17 August 2017 that her employment was suspended, she could not have been under that impression as of 17 August 2017. Accordingly, even if 17 August 2017 was contemplated as the termination date (which I do not accept it is), the application has been made beyond the statutory 21 day time limit.

[35] The 21 day period for lodgement is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect.[3] If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.[4]

[36] A dismissal can be communicated orally.[5]

[37] I am satisfied that the dismissal took effect on 14 August 2017, and the application has been made six days out of time. If I am incorrect, and the dismissal took effect on 17 August 2017 after receipt of Ms Johnson's communication, the application has been made three days out of time.

[38] It is necessary for me to determine if there are exceptional circumstances for the delay.

Subsection 366(2)(a) - The reason for the delay

[39] If Ms Burke had been relying on a review by Mamre between the period 14 August 2017 and 31 August 2017, she has not adequately explained the reason why, on receipt of the communication on 31 August 2017, she did not make the unlawful termination application until 6 September 2017.

[40] Ms Burke's explanation that she thought the time limit might be 28 days or 21 working days is not a suitable explanation, and does not constitute exceptional circumstances. Mere ignorance of the law has been held not to constitute an exceptional circumstance to warrant the granting of an extension of time.[6]

[41] On Ms Burke's evidence, when she became aware on 7 September 2017 that she had made the incorrect application, she then did not file the correct application until 10 September 2017. The explanation provided by her that she was busy with work and had a family commitment is unremarkable, and singularly and collectively do not constitute exceptional circumstances. There is nothing exceptional about having to attend work (even on an overnight shift), and meeting a family commitment.

[42] The reasons for the delay weigh against granting an extension of time.

Subsection 366(2)(b) - Any action taken by the person to dispute the dismissal

[43] Ms Burke took immediate action to dispute the dismissal. She sought review of the decision in writing and by attendance at Mamre's office the day after the dismissal.

[44] I accept that Ms Burke clearly articulated that she disputed the dismissal.

[45] The action taken by Ms Burke to dispute the dismissal ways in favour of granting an extension of time.

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

[46] Mamre conceded that there would not be any prejudice if an extension was granted.

Subsection 366(2)(d) - The merits of the application

[47] 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"[7] for the purpose of determining whether to grant an extension of time to an applicant to make their application.

[48] In the matter of Kornicki v Telstra-Network Technology Group[8] the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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.'

[49] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd_[9]_:

'... serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent's witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.'

[50] I do not consider that Ms Burke's case to be without merit. This is a neutral consideration whether to grant an extension.

Subsection 366(2)(e) - Fairness as between the person and other persons in a like position

[51] 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.[10]

[52] The parties did not make any submissions that there is, or has been, any persons in a similar position to Ms Burke. I therefore consider this criterion to be neutral.

[53] I make the following general observation about this criterion with respect to Ms Burke's case.

[54] Ms Burke's application has been filed six days out of time, with the explanation provided for at least 5 September and 6 September 2017 as ignorance of the 21 day time limit. Ms Burke was aware by at least 7 September 2017 that she had filed the incorrect application and either application was subject to a 21 day time limit. Ms Burke then did not take further action for another three days to bring the application.

[55] It is true that many applications involving the grant of an extension of time before this Commission have been dismissed, even when the application has been filed one day late, where the person has claimed not to have known of the 21 day time limit.

[56] In my view, if a further period were allowed to Ms Burke it would be inconsistent with other cases where a further period has been refused.

[57] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied there are exceptional circumstances which would warrant my granting an extension to the statutory time limit.

[58] Ms Burke's circumstances are not out of the ordinary course, unusual, special or uncommon. I consider that the reasons for the delay far outweigh Ms Burke's action taken to dispute the dismissal. Ms Burke presented as an intelligent, assertive young woman and the periods between at least 31 August 2017 and 6 September 2017, and again 7 September to 10 September 2017 have not been adequately addressed to satisfy exceptional circumstances.

[59] I order that the Application be dismissed.

[1] Section.723 of the Fair Work Act (2009).

[2] [2011] FWAFB 975.

[3] Acts Interpretation Act 1901 (Cth) s.36(1) (Item 6).

[4] Ibid s.36(2); See [2013] FWC 3593 Hemi v BMD Constructions Pty Ltd.

[5] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 [14].

[7] Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

[8] Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8.

[9] Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

[10] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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