s.365 - General protections

Journey Early Learning Services Pty Ltd T/A Journey Early Learning Group

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.

• [1] On 1 April 2025, Miss Tamara Bradshaw lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Journey Early Learning Services Pty Ltd T/A Journey Early Learning Group (Journey or the Respondent). Miss Bradshaw commenced employment on 28 October 2024 and her dismissal took effect on 7 March 2025.

• [2] Miss Bradshaw was employed subject to a probationary period of employment in the position of unqualified educator on a part-time basis.

• [3] Section 366(1) of the Act requires an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 4 days after the 21-day statutory time limit.

• [4] Miss Bradshaw submits that her dismissal is a contravention of s.352 temporary absence because she attended a doctor's appointment_._

• [5] Miss Bradshaw submits that she filed an unfair dismissal application late. She says she was told to file a general protection application because of its lateness as she had not met the unfair dismissal criteria. In fact, the Commission records show that the unfair dismissal application was filed two days after the 21-day time limit, and it was discontinued when Miss Bradshaw was informed she had not met the minimum employment period.[1] On 1 April 2025, the unfair dismissal application was discontinued and the general protections application lodged.

• [6] During the hearing Miss Bradshaw says she was aware that her unfair dismissal application was both late and she knew that she had not met the minimum employment period when she lodged but was unaware that a 21-day time limit applied to general protections applications.

• [7] The Respondent submits that the Applicant commenced employment on 28 October 2024 subject to a six-month probation period as a part-time unqualified educator working 15-17 hours per week. It submits that during Miss Bradshaw's employment, her Manager documented and raised concerns regarding performance, reliability and practice. Further the employment was terminated consistent with the contract of employment during the period of probation.

• [8] In relation to the alleged contravention of s.352 of the Act, the Respondent denies any contravention and says that the Applicant at no time disclosed a medical condition constituting a temporary illness or injury. It submits that prior to the finalisation of rosters in February 2025, the Applicant requested to be rostered off to attend an appointment on 17 March 2025. This request was accommodated in accordance with the Applicant's availability to perform her part-time hours and no medical certificate was provided to her employer. The Respondent had no record of a request for leave or a medical certificate for 17 March 2025.

• [9] The Respondent challenged the application on the basis that it was out of time.

• [10] General protections applications involving dismissal must be made within 21 days.

• [11] However, s.366(2) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [12] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[2] where it was held that:

"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 regular occurrence, even though it can be a on 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."[3]

• [13] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2)(a)-(e).

• [14] The general protections involving dismissal application was lodged with the Commission on 1 April 2025, 4 days late. Miss Bradshaw was aware that her dismissal took effect on 7 March 2025.

• [15] No clear reasons are offered for the delay other than the late unfair dismissal application and the lodgement of this application after a discussion with the Commission. During the hearing Miss Bradshaw offered that her unfair dismissal application was late because she was unable to get a hold of witnesses. This submission provided no assistance in her explanation for the delay as witnesses are unnecessary when filing an unfair dismissal application. In addition, Miss Bradshaw was aware of the 21-day time limit and knowingly filed her claim late by two days. It is necessary for the Applicant to provide credible reasons for the delay to assess their significance in an extension of time application. Failure to address the reasons in these proceedings is most unhelpful for the Applicant.

• [16] There must be a credible reason for the delay.[4] In the absence of any plausible, sound or reliable reasons given, this consideration cannot weigh in favour of this extension of time application.

• [17] While the reason for the delay is not in itself required to be an exceptional circumstance, it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [18] No steps were taken to dispute the dismissal either before or after the dismissal. Miss Bradshaw submits that she felt she had no choice but to accept the dismissal. For this reason, I do not consider this factor to weigh in her favour.

• [19] Miss Bradshaw submits that she is unaware of any prejudice or disadvantage to the Respondent in her late application.

• [20] The Respondent submits that both the delay and lack of any detail regarding the basis of the claim has disadvantaged the Respondent by having to expend resources on replying and dealing with the application. It has concerns that a claim that is late and without merit, if accepted, would create a precedent for further claims in the future.

• [21] While the Respondent submits it has been disadvantaged by the application, it is no basis for prejudice. Nevertheless, an absence of prejudice does not weigh in favour of an extension of time, therefore this consideration is neutral.

• [22] In her written submissions, Miss Bradshaw submits that she was not given a specific reason for her dismissal. She says that she took time off work to attend a medical appointment and assumes her absence due to illness was the reason. She further states that at her three-month review, her Manager advised that she was doing great. During the hearing Miss Bradshaw admitted that she was informed her dismissal was because she had not met the performance plan or expectations of the Respondent.

• [23] However, despite being told the reason for the dismissal Miss Bradshaw maintains that she informed the Centre Manager of her illness which resulted in leaving work early on 3 February 2025. A medical certificate was given to the employer dated 4 February 2025[6]. Miss Bradshaw further sates that she informed the Centre Manager of her illness and that she would be required to attend further medical appointments. This evidence is contrary to the statements from the Respondent including a written statement from the Centre Manager.

• [24] Miss Bradshaw confirmed during the hearing that the only medical certificate provided to her employer was the certificate dated 4 February, and no further absences required evidence of a medical certificate. In fact, she says that her employer accommodated her unavailability when she had to leave early or was late to work.[7]

• [25] The letter of termination was submitted into evidence which confirms that the employment was subject to a six-month probation period and during probation, Miss Bradshaw's suitability and performance was assessed as not meeting the Respondent's expectations. A week of notice was paid in lieu.[8] Also submitted into evidence was a backdated medical certificate certifying unfitness for work on 3 February 2025.

• [26] The Respondent submits that on 7 March 2025, the Centre Manager together with Centre Administration met with Miss Bradshaw and informed her that her employment would not be extended beyond the probation period. The Human Resources Department emailed the letter of termination to Miss Bradshaw on the same day.

• [27] The Respondent submits the reason for dismissal relates to performance during the probation period: issues regarding punctuality and understanding the requirement to adhere to room requirements to maintain child safety. It submits that the Applicant was late to several shifts by 30 minutes to one hour. Despite this issue being addressed directly with the Applicant it remained a concern. The most recent instance was on a shift scheduled for 10.30am to 4.00pm on 5 March 2025. Miss Bradshaw requested a revised start time of 11.00am and this was accommodated. However, at 10.57am the Applicant advised she would not be attending work because of a transport issue. After the Centre Manager expressed her disappointment, the Applicant arrived at work at 11.30am.[9] This behaviour caused significant disruption in the Centre and placed the Centre at risk of non-compliance with legislative supervision requirements. The Respondent also addressed its concerns with the Applicant's failure to supervise children, and despite ongoing support and feedback it remained a concern to the Respondent.[10]

• [28] In response to the allegation that the Respondent contravened a general protection, it says that rosters are often adjusted to meet the requirements of employees and the Centre. The Applicant consistently worked 15 - 17 hours per week and her rostered hours were amended to accommodate her needs. It maintains that at no time had the Applicant advised of a medical condition nor gave a medical reason for the adjustment request. It submits that the only medical certificate submitted was for 4 February covering the single day of 3 February. It submits that this single day does not indicate a pattern of temporary absence to trigger the protections under s.352 of the Act.[11]

• [29] While an extension of time application is not an opportunity to make any detailed assessment of the evidence on merit, the submissions and supporting materials from the Respondent support a termination during probation for reasons of performance. Miss Bradshaw's evidence appeared off hand and when closely questioned either corrected or retracted earlier evidence. On balance, the Respondent's evidence, both the statements and supporting documentation holds greater weight than the unsupported evidence of Miss Bradshaw.

• [30] Further there is no evidence of temporary absence because of illness (other than leaving a shift early by 1-2 hours with permission) that supports the Applicant's contention of a causal link between the medical appointment and the dismissal. Section 352 of the Act provides that an employer cannot dismiss an employee that is temporarily absent from employment because of illness or injury. Temporary absence is prescribed by the Regulations. The absence of 1-2 hours was covered by a medical certificate, albeit a backdated certificate, but the absence occurred on 3 February and the dismissal on 7 March 2025 - more than one month after the absence. A causal link was not made out by the Applicant. Based on the materials before me, the Applicant's case is unconvincing and unlikely to succeed. For this reason, merit does not weigh in favour of an extension.

Fairness between the person and other persons in a like position

• [31] Neither party addressed this consideration, consequently, I find this consideration neutral.

• [32] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

• [33] In consideration of the matters in s.366(2) I find on the balance do not weigh in favour of granting an extension of time. The reason for delay, merit and steps taken to dispute the dismissal do not weigh in favour of an extension, and prejudice and fairness I consider neutral considerations.

• [34] Having considered all of the evidence and submissions against 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.

[1] See Fair Work Act 2009 (Cth) s.383.

[2] [2011] FWAFB 975.

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

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

[6] Photograph of medical certificate dated 4 February certifying Miss Bradshaw as unfit on 3 February 2025, Digital Hearing Book (DHB) pg. 33; Appendix 4, Respondent's Outline of Argument, DHB pg. 105.

[8] Attachment to the Applicant's Outline of Argument, DHB pg. 32 ; Appendix 4, Respondent's Form F8A, DHB pg. 71.

[9] Appendix 6 conversation file note, Respondent's Outline of Argument, DHB pg. 106.

[10] Respondent's Outline of Argument, DHB pg. 75-76 at 1h [6]-[11].

[11] Statement of Evidence of Clyde McIlroy, Human Resources Manager.

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