1 Fair Work Act 2009 s.365—General protections Myshka Gardner v The Trustee For The Salvation Army (Tas) Social Work (C2023/6491) COMMISSIONER CIRKOVIC MELBOURNE, 1 FEBRUARY 2024 Application to deal with contraventions involving dismissal – extension of time. [1] Myshka Gardner (Applicant) lodged a general protections application (GP application) with the Fair Work Commission (Commission) pursuant to s365 of the Fair Work Act (Act). The Respondent to the application is The Trustee For The Salvation Army (Tas) Social Work (Respondent). [2] It is not in dispute that the Applicant was terminated effective 4 September 2023. The general protection application was lodged at 3.17pm on 20 October 2023. As the Applicant was terminated on 4 September 2023, the last day to lodge the application was 25 September 2023, and it was therefore lodged 25 days out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2). Legislative scheme [3] Subsection 366(1) of the Act provides that an application under s.365 of the Act must be made within 21 days after the dismissal took effect: (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). [4] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors: (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: [2024] FWC 266 DECISION [2024] FWC 266 2 (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. [5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said (footnotes omitted): “[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.” Consideration Reasons for delay – s.366(2)(a) [6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.2 A dismissal can be communicated orally.3 [7] There must be an acceptable reason for the delay in making the GP application.4 [8] The applicant must provide a credible reason for the whole of the period that the application was delayed.5 Ignorance of the 21day timeframe is not an exceptional circumstance.6 [9] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:8 [2024] FWC 266 3 “For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.” Reasons for delay [10] The Applicant advanced the following reasons for the delay in filing her application: • Following her dismissal, she sought reasons for her termination as she could not understand what performance issues were being raised by the Respondent. At hearing, she states that she was told that a complaint was possibly made against her but beyond that, she was unaware of the reasons for her termination. • She did not know of the 21 day time limit for the making of her application until after the expiry of the 21 day time limit. • She was considering whether it was appropriate to make an unfair dismissal application or a GP application. • She has experienced “extreme mental stress, depression, and has been unable to function” since her dismissal. • She is a single mother with an autistic child. • Due to extreme financial hardship, she has had no phone credit or funds for transport to seek legal advice. • She has had to seek emergency relief service support to provide food, petrol, payment of bills to provide for her son, and is still doing so at the time of lodging her application. • Her last contact with the Respondent was on 11 September 2023, and she did not receive a separation certificate until 11 October 2023. [11] It is worth noting that directions in this matter for the filing of material including any witness statements, any other documentary evidence, and submissions on which the Applicant sought to rely in relation to her extension of time application were issued on 4 December 2023. The Applicant failed to comply with the directions issued and the Commission has no material before it apart from the GP application and attachments. The Applicant concedes at hearing that she received the directions but states that due to her financial circumstances she had intermittent internet access and was unable to access and submit material. [12] I note that the Applicant did not file any material with the Commission in support of her submission that she was suffering extreme mental stress and depression. Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I note that there is no medical evidence before the Commission as to the effect of the Applicant’s mental condition on her capacity to file the GP application on time. [2024] FWC 266 4 [13] I note the Applicant’s assertion that she was not provided with a separation certificate before lodging her application or provided with a reason for termination and that she was awaiting the outcome of her appeal to the Respondent of the termination decision. [14] On the basis of the material before me, I find that the reasons for the delay are: • The Applicant’s ignorance of the 21 day time limit; • The Applicant’s uncertainty as to whether to make a GP or an unfair dismissal application. • The Applicant’s belief that she ought to await the outcome of her appeal to the Respondent of the termination of her employment. • She was awaiting the provision of a separation certificate and sufficient reasons for termination; and • She was suffering financial hardship and experienced extreme mental stress since her dismissal and that she is a single mother with an autistic child. [15] Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I note that there is no medical evidence before the Commission as to the effect of the Applicant’s mental condition on her capacity to file the GP application on time. [16] Further, I do not accept that the Applicant’s decision to wait for the Respondent to provide her with a separation certificate before lodging her application is an acceptable reason for the delay. Information on lodging GP applications including the 21 day requirement is available on the Commission’s website. In any event, I observe that ignorance of the time limit or a right to challenge a dismissal is not generally an acceptable explanation for a delay. [17] I do not consider the matters relied on by the Applicant, individually or together, an acceptable or reasonable explanation for the delay in filing her application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. Action taken to dispute the dismissal. [18] The Applicant submits that she emailed the Respondent on 25 September 2023 noting that she had not been given any valid reason as to why her employment had been terminated and requesting that reasons for her dismissal be given in writing and a meeting be scheduled. In support of this submission, the Applicant filed with the Commission an email from the Respondent of 27 September 2023 informing her that that her appeal of the termination decision was unsuccessful, and that the decision still stands. The Applicant additionally submits she emailed the Respondent on 29 September 2023 requesting written reasons for her contract termination. [2024] FWC 266 5 [19] The Respondent submits that there is a lack of evidence or effort shown in challenging or disputing the dismissal, indicating a possible acceptance or lack of contest. [20] On the material before me, I am satisfied that the Applicant took some action to dispute her dismissal. This factor weighs in favour of granting an extension of time. Prejudice to the employer [21] Prejudice to the employer will go against a granting of an extension of time.9 [22] The Applicant submits that no such prejudice exists. [23] The Respondent did not provide any submissions on this point. [24] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [25] The Respondent submits that the Applicant was dismissed due to performance and role suitability. [26] The Applicant submits that she was dismissed in contravention of s.340, s.343, s.344, and s.351 of the Act for exercising her workplace rights. [27] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration. Fairness as between the person and other persons in a similar position [28] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a GP application. However, cases of this kind will generally turn on their own facts. [29] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter. [2024] FWC 266 6 Conclusion [30] Having considered all of the factors set out in s.366(2) I am not satisfied that the requisite exceptional circumstances exist. Some of the factors I am required to consider are neutral and I have found that the Applicant took some steps to dispute her dismissal. There is no acceptable or reasonable explanation for the delay in filing the application. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed. COMMISSIONER Appearances: Ms Gardner, the Applicant Mr Tomisich, of the Respondent Hearing details: 2024 31 January Telephone. Printed by authority of the Commonwealth Government Printer <PR770838> 1 [2011] FWAFB 975. 2 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]. 3 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605. 4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. 5 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9. 6 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]. 7 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]. 8 [2016] FWCFB 349 at [31]. 9 Ibid