Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] Earlier this morning, I delivered on transcript my decision to dismiss Ms Kelly Destiny McCracken's application made under section 365 of the Fair Work Act in which she alleges that she was dismissed by Woolworths Group Limited in contravention of Part 3-1 of the Fair Work Act. At the conclusion of the hearing, I informed the parties I would provide further written reasons for my decision

• [2] Ms McCracken commenced her employment with Woolworths Group as a store team member on 30 October 2024. Her employment ended during her probation period on 20 March 2025. Ms McCracken was employed for less than 6 months and therefore did not meet the minimum employment period for making an unfair dismissal application. Section 366(1) requires general protections applications to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). The 21-day period ended on 10 April 2025. Ms McCracken filed her application on 11 April 2025 which was one day out of time. For the application to proceed Ms McCracken requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the factors in s.366(2)(a) to (e). I declined to grant an extension of time under s.366(2) as I was not satisfied that there were exceptional circumstances that warrant doing so.

• [3] Ms McCracken submitted the reason for the delay in making her application was because she was not legally (or otherwise) represented and that having the assistance of someone with experience would have ensured that her application was lodged on time. She also submits that the late filing of the application was due to her own miscalculation. Ms McCracken's oral evidence is that after the dismissal took effect, she attended a meeting with a job service provider where she was provided with advice and support in obtaining new employment. Ms McCracken also gave evidence that she had on many occasions prior to lodging the application reviewed the materials on the website and spoken to her former partner Mr Leo about the calculation of the 21 day time frame. Ms McCracken also gave evidence that she had access to various support services immediately after her dismissal took place which included NDIS and job seeker support.

• [4] I accept that Ms McCracken may have felt overwhelmed by the task of making the application and that she had not sought legal representation or other representation when she made her application, however her circumstances are not uncommon, unusual nor exceptional. The Commission receives applications from unrepresented litigants on a daily basis and the Commission's resources are designed to assist unrepresented litigants in making those applications. On the evidence before me there were other resources that Ms McCracken had engaged with, it is unfortunate that she did not engage with those resources to seek advice about making her application. Regardless, it has been a well accepted principle that ignorance of one's rights is not usually an acceptable reason for the delay.

• [5] Ms McCraken also submits that she had difficulty understanding the requirements and that her mental health was seriously impacted by the alleged bullying and false complaints made against her during her employment. Ms McCraken filed a "medical certificate" obtained from Dr Daniel Lipson, her general practitioner on 5 May 2025. Prior to obtaining the certificate Ms McCracken had not seen her general practitioner since December of 2024. The medical certificate does not indicate that Ms McCraken was medically incapacitated for the entire duration of the delay. Specifically, the medical certificate does not provide that Ms McCracken was unable to make her application during the 21 day time period required by the Act. The medical certificate merely states that Ms McCracken's medical condition would have impacted her ability to put in a claim in a timely manner.

• [6] The medical evidence does not positively demonstrate that Ms McCracken's anxiety and depression had an impact on her mental capacity so as to prevent her from lodging the application within the 21 day time period. When considered in conjunction with Ms McCracken's oral evidence I place little weight on her reliance on the medical certificate as evidence that she was unable to file her application within time. Further I note Ms McCracken was able to attend meetings, apply for alternative employment, and attended her former employer's premises on at least one occasion during the 21 day period allowed for filling of an application. This supports a finding that Ms McCracken was not incapacitated by her medical condition to the extent that she could not file her application on time.

• [7] I have formed the view that none of the reasons provided by Ms McCracken either individually or taken together are exceptional reasons that would warrant the granting of an extension of time. The reasons for the delay weigh against the granting of an extension of time.

• [8] The Respondent accepts that other than the filing of this application Ms McCracken made several attempts to dispute the dismissal. This weighs marginally in favour. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. Neither party brought to my attention any relevant matter concerning fairness between Ms McCracken and other persons in a like position. In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises. I therefore consider these to be neutral considerations.

• [9] As to the merits, Ms McCracken denies the allegations that her conduct was inappropriate, and she had not breached the Woolworths Group Code of Conduct or the Respectful Workplace Policy. Ms McCraken submits that her managers actively participated in a campaign to "dig up dirt" to support its case that she had breached the Code of Conduct and Respectful Workplace Policy. The Respondent denies any wrongdoing and during the hearing the Respondents representative acknowledged Ms McCracken felt aggrieved and understood the impact the dismissal had on Ms McCracken.

• [10] There is a factual dispute about the merits of this application and where there is a factual dispute the Commission does not determine the merits of the application, and I do not intend to do so. I find this factor to be neutral.

• [11] Having regard to all of the matters listed at subsection 2 of section 366 of the FW Act, I am not satisfied that there are exceptional circumstances warranting an extension of time. I have therefore decided to dismiss Ms McCracken's application and an order to that effect will be issued separately.

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