s.365 - Application to deal with contraventions involving dismissal

Marina Milvia Levez Trading As Soothing Minds Counselling And Psychotherapy

Application to deal with contraventions involving dismissal - out of time application - extension of time sought - no exceptional circumstances - application dismissed.

• [1] Ms Maren Nickel (Ms Nickel or the Applicant) made a general protections application under s.365 of the Fair Work Act 2009 (the Act). Ms Nickel's employment with Marina Milvia Levez T/A Soothing Minds Counselling and Psychotherapy (the Respondent) was terminated on 17 October 2024.

• [2] The Applicant's application was lodged with the Fair Work Commission (the Commission) on 17 November 2024.

• [3] Section 366(1) of the Act states that an application made under section 365 must be made 'within 21 days after the dismissal took effect', or within such further period as allowed by the Commission pursuant to s.366(2).

• [4] In this instance, the period of 21 days concluded on 7 November 2024. The application was filed 10 days later, making the application 10 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for her application to proceed.

• [5] The Applicant requests the Commission grant an extension of time for her application under s.366(2) of the Act. The Respondent made submissions opposing the granting of an order to extend the time for filing the application.

• [6] A hearing was held on 19 February 2025 to determine the extension of time application.

• [7] Ms Nickel appeared on her own behalf and gave evidence to support her application for an extension of time. Ms Marina Levez, the owner and general manager of the Respondent business, appeared on behalf of the Respondent.

• [8] For the reasons set out below, I find there are no exceptional circumstances in this matter that could lead me to exercise my discretion to extend the time for Ms Nickel to file her application.

• [9] Ms Nickel was employed by the Respondent from 19 July 2024 as a Positive Behaviour Support Person. She was dismissed on 17 October 2024. The Respondent provided Ms Nickel with a letter of termination that cited unspecified performance concerns during her probationary period, including alleged breaches of policies and procedures, her contract of employment and confidentiality.

• [10] Ms Nickel's termination was effective of 17 October 2024 and she was paid a week in lieu of notice.

• [11] Ms Nickel noted in a statement filed in the Commission that she "thought [she] sent the application to FWC Wednesday 06. November 2024 via email on my phone."[1] If Ms Nickel had successfully filed her application on 6 November 2024, it would have been filed a day before the statutory time period expired. When Ms Nickel did not receive confirmation of the filing of the application by 17 November 2024, she was "wondering why I did not receive a confirmation. It was then that I realized that the email to FWC 06. November did not go through, so I (re)sent the application that day. I do not know why it did not go through but suspect a technical problem with my phone."[2]

• [12] Ms Nickel confirmed this during her oral evidence, when she said: "I thought I sent it. I clicked send and had all the attachments but I didn't check if it actually went through."[3] She confirmed that she sent the application by email. She printed the form and filled it in by hand and took photos of the handwritten forms before attempting to send it on her phone.

• [13] On 17 November 2024, Ms Nickel said she was surprised she had not received a response from the Commission and went through her emails to see if she had received an email confirming her application was filed.[4] When she could not find any confirmation of receipt of her application, Ms Nickel saw it did not "go through" and she found the email in her draft folder.[5] Ms Nickel confirmed the email was not in her outbox, but was in the draft folder, a folder she told the Commission she understood was for emails that "when you haven't finished something and you want to add stuff then you put it in the draft folder, but I haven't done this on purpose or anything like this, so it was not my intention to put it in the draft folder, I wanted to have it sent."[6]

• [14] Ms Nickel said she was "pretty sure"[7] she did press send on the email but "I don't know how this happened, that it didn't go through. From my understanding I pressed send, so I am not sure why it didn't go through."[8]

• [15] Ms Nickel said that she was distracted immediately after the application was sent because she was talking with her daughter. She said if she was on her own she would have been able to finish it and would have double checked straight away if the email went through.[9] She explained to the Commission she did not check on 7 November 2024, the last day in the statutory time period, that the email had been sent because she was "certain" it had been sent the day prior and it did not come into her mind to check on that day.[10]

• [16] Ms Nickel also said in her written statement that she was experiencing "high anxiety, depression and fear as a single mother with three children."[11] Ms Nickel also said in her statement that "I found out beginning of November that my daughter, who is currently living with me, is pregnant, which is very emotional and extremely complex for us both."[12] Ms Nickel went on to say that the announcement of her daughter's pregnancy "contributed to the high emotional stress which led me to forget about following up the application sooner."[13] She said in her oral evidence that after sending her application on 6 November 2024 she focused on caring for her daughter and for herself.[14]

• [17] Ms Nickel accepted that the failure to file her application by 7 November 2024 was her "mistake" and "responsibility", and that she takes "full responsibility" for the error.[15] When she discovered the error, Ms Nickel said she immediately filed her application by email.

• [18] Section 366 of the Act provides:

(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:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [19] Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[16]

• [20] For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[17]:

"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."[18]

• [21] I set out my consideration of each element of section 366 below.

• [22] The reasons for the delay are Ms Nickel's mistake in failing to send her application by email when she attempted to do so on 6 November 2024 and then failing to check that the email was sent until 17 November 2024.

• [23] I agree with the Respondent's submission that the applicant did not provide evidence of her attempt to file her application on 6 November 2024,[19] but given the application was not discovered by Ms Nickel in her outbox, which might have evidenced attempts to send the application, she advised the Commission the application was in her draft folder, which tends towards a likelihood that Ms Nickel never pressed send on the email she says she drafted attaching her application.

• [24] I also agree with the Respondent's submission that Ms Nickel's success in filing the application on 17 November 2024, after she discovered the unsent email in her draft folder, demonstrates her competence to file the application, which then ought to have been filed within the statutory time frame.

• [25] Ms Nickel asserted in her statement that learning of her daughter's pregnancy was the reason she failed to check whether her application was filed until 17 November 2024. Ms Nickel did not address the circumstances of her daughter's pregnancy in any detail during her oral evidence.

• [26] Ms Nickel later attempted to provide information to the Commission about her daughter's circumstances and the role it might have played in the lateness of her application from the bar table. However, Ms Nickel did not provide, either in her statement or in her oral evidence, any detail regarding the date she was made aware of her daughter's pregnancy or a sufficient explanation as to the impact the pregnancy had on her ability to file the application.

• [27] In any event, the failure to press send on an email attaching the application within the statutory time period and a failure to check whether the application had been sent for approximately 11 days is not a reasonable explanation for the delay. Neither is it an exceptional circumstance because it is not out of the ordinary course, unusual, special or uncommon.

• [28] In the absence of specific evidence regarding Ms Nickel's daughter's circumstances and their impact on her ability to file her application within the statutory time period, I cannot give any weight to the assertion that the pregnancy distracted or interfered with Ms Nickel's ability to follow up or check that the application was filed.

• [29] As to Ms Nickel's claim that she was experiencing anxiety, depression and fear following the termination, again there is little evidence beyond the assertion of the Applicant that she was experiencing those conditions or to such a degree that they impacted her ability to file her application. Whilst evidence from medical practitioners is not required evidence per se[20] to establish poor mental health as a credible reason for delay it is "very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence."[21] In this matter there is neither medical evidence nor compelling evidence from Ms Nickel herself that persuades me that her mental health was so poor that she was incapable of filing the application within the statutory time period.

• [30] The absence of a credible reason for the delay weighs against a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [31] Ms Nickel makes clear in her statement that she did not take any action to dispute the dismissal before filing this application. She said: "I only contacted FWC and took no further action due to feeling overwhelmed and unsure of what to do next."[22]

• [32] This consideration weighs against a finding that exceptional circumstances exist in this matter.

• [33] The Respondent argued in its submissions that there would be prejudice to them should they be required to defend a "baseless claim" in circumstances in which the application would otherwise be barred because it was filed outside the statutory time period.[23]

• [34] I accept that the Respondent is entitled to rely upon the time being complied with,[24] however, the question for determination is whether firstly, exceptional circumstances exist that should cause the Commission to consider whether an exercise of discretion to extend the time is appropriate.

• [35] Other than their complaint that they are being put to the cost of engaging with the Applicant's application for an extension of time and defending a claim they consider to be without merit, the Respondent does not identify any other prejudice should the extension of time be granted.

• [36] I find this consideration neutral in my decision.

• [37] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[25] Further, the primary consideration is whether the Applicant has an arguable case.[26]

• [38] I cannot determine on the material currently available to me whether or not Ms Nickel has an arguable basis for her general protections claim.

• [39] The application filed by the Applicant asserts that she was dismissed from her employment because she exercised a workplace right and on account of racial discrimination. Nowhere in her application or in her statement filed with the Commission in this proceeding has Ms Nickel set out the basis for, or facts underlying, her claim that she was dismissed for a prohibited reason. To the contrary, Ms Nickel consistently refers to being unfairly dismissed and her disagreement with the reasons provided by the Respondent for the termination of her employment.

• [40] Further, in her oral evidence when asked about why she had formed the view that her dismissal was motivated by race discrimination she said: "because I just feel that it might be. That is how it made me feel the whole time I was working there as well."[27] She said she was the only "foreigner working there and all the other people working there were Australian"[28] and that there was nothing specific she could refer to to support her claim that her German background was a reason relied on by the Respondent to terminate her employment.

• [41] Without the benefit of hearing all of the evidence, I am unable to reach a view as to whether the Applicant has an arguable case. This consideration is neutral in my decision.

Fairness as between the person and other persons in a like position

• [42] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[29] considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[30]

• [43] I have applied the considerations I am required to under section 366 of the Act. This case turns on its own facts, as is the case with most matters of this kind before the Commission. This consideration is therefore neutral in my decision.

• [44] I am not persuaded that exceptional circumstances exist in this matter such that I should exercise discretion to extend the time for Ms Nickel to file her general protections claim.

• [45] Ms Nickel has not provided a credible reason for the delay or a reason that is unusual or out of the ordinary course. Weighing against a finding of exceptional circumstances is also a lack of action on Ms Nickel's part to dispute the dismissal with the Respondent. The other factors I must consider are neutral in my decision.

• [46] As I have declined to extend the time for the application to be filed, Ms Nickel's general protections application is dismissed.

M Levez for Marina Milvia Levez T/A Soothing Minds Counselling and Psychotherapy.

[1] Statement of Applicant of 17 January 2025 at 3.

[3] Audio recording of the hearing - Part 1 at 11:10.

[11] Statement of Applicant of 17 January 2025 at 5.

[14] Audio recording of the hearing - Part 1 at 12:29.

[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[17] [2011] FWCFB 975.

[19] Submissions of Respondent at paragraph 25.

[20] Blanco v White Bathroom Co Pty. Ltd. [2021] FWC 4694 at [50].

[22] Statement of Applicant of 17 January 2025 at 6.

[23] Submissions of the Respondent at paragraphs 47 and 48.

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

[26] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[27] Audio recording of the hearing - Part 1 at 18:37.

[29] [2016] FWCFB 6963.

[30] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] FWC 750.

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