DECISION

Fair Work Act 2009
s.365—General protections

Hough Lara
v
Uniting NSW ACT
(C2019/1670)

Application to deal with contraventions involving dismissal – application made out of time – request for an extension of time

INTRODUCTION

[1] The Applicant alleged that the termination of her employment by the Respondent was in contravention of the general protections provisions under the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant’s application to deal with contraventions involving dismissal (the Application) lodged on 14 March 2019 was not made within the requisite 21 days after the date of the dismissal.

[3] The Fair Work Commission (FWC) may allow a further period for lodging an application if it is satisfied that there are exceptional circumstances.

[4] In assessing whether there are exceptional circumstances the FWC must have regard to the matters under section 366(2) of the Act.

RELEVANT STATUTORY PROVISIONS

[5] Section 366(1) of the Act sets out that an application under section 365 (a general protections application) 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).”

[6] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

“(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.”

[7] The Full Bench of the then Fair Work Australia (FWAFB) in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

“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…” 1

[8] 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. 2

[9] It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. 3

[10] The test of exceptional circumstances establishes a ‘high hurdle’ for an applicant to overcome for an extension to be granted. 4

[11] A decision to extend time under section 366(2) involves the exercise of discretion by the FWC. 5

[12] Whether exceptional circumstances exist requires consideration of all the relevant circumstances. 6 I will consider each of these matters in turn.

THE FACTS

[13] The Applicant commenced employment with the Respondent on or around 24 November 2014 as a Client Service Officer (‘CSO’) within the Home and Community Care Division (‘HCC’) within a specific section of the business known as Community Care Direct (‘CCD’).

[14] The Applicant has a medical history that includes epilepsy and required two brain operations in an attempt to control her epilepsy. She also suffers from depression, anxiety and panic attacks. Further, she had been receiving IVF treatment and was pregnant with her first child after having had a number of miscarriages.

[15] During the period June to September 2018, the Respondent undertook a study to identify improvements in the delivery of services by the CSO’s.

[16] Following the study, the Respondent made a decision to centralise a number of services including the rostering functions and initiated a consultation process with the affected staff in October 2018.

[17] On 9 October 2018 an initial meeting with the affected staff was held by the Respondent. A presentation was made outlining the proposed changes to the structure of the business and the roles of employees. The day following the presentation, a draft job description for the proposed Support Scheduler role and a Frequently Asked Questions (‘FAQ’) document was emailed to all employees of the Respondent.

[18] On 11 October 2018 a meeting was held by the Respondent for the purposes of staff to provide feedback on the proposed and changes.

[19] The Respondent developed an assessment matrix to determine which employees would be immediately redeployed into the new business structure. The following criteria were utilised to assess each affected employee: role knowledge, job skill, performance against targets, stakeholder relationships, learning and development, alignment with business values and as well as performance and conduct issues.

[20] As a result of the assessment conducted by the Respondent, the Applicant had scored quite low. After the Respondent conducting the assessment, seventeen staff were redeployed and twenty-two employees were made redundant.

[21] The Respondent conducted meetings with affected staff on the 15 and 16 October 2018 to inform said staff that their positions had been made redundant. The Respondent also addressed what the next steps in the restructuring process would entail. The Applicant attended a meeting with representatives from the Respondent. At this meeting the Applicant was informed that her role had been made redundant and that her notice period would commence immediately, however she would remain working until 30 November 2018. The Applicant was also offered the opportunity to indicate her preference in the new structure and in the event she was unsuccessful in being redeployed before the 30 November 2018, the Respondent would make a severance payment to the Applicant.

[22] In this meeting, the Applicant identified that she was 15 weeks pregnant and wanted to understand the impact of the Respondent’s decision on her parental leave.

[23] On 25 October 2018 the Applicant attended a meeting to discuss redeployment opportunities with her support person Mr Robert Hough. During this meeting, Mr Hough pressed the matter of whether her redundancy was being used to avoid making a payment of maternity leave.

[24] On 6 November 2018 via email, the Applicant’s raised her concerns that as result of being made redundant, she would not be eligible for the government funded Paid Parental Leave Scheme and that this would put her under financial pressure. The Applicant further asserted that Mr Hayton had advised that she was being made redundant in order for the Respondent to avoid making the payment of paid maternity leave. The Respondent denies this assertion.

[25] On 9 November 2018, the Respondent confirmed that at no stage had any employee made such comment regarding the avoidance of paid maternity leave and further offered a temporary placement until February 2019 to assist the Applicant meet the requisites for the government funded Paid Parental Leave Scheme. On 23 November 2018, the Applicant responded stating she was seeking legal advice about making a general protections application or possibly an anti-discrimination complaint. The Applicant, at this particular time, also asked for the details of the potential short-term position with the Respondent.

[26] On 28 November 2018, the Respondent indicated that they would be able to offer a temporary position until 1 March 2019 to support the transition to the new service model and that this offer would enable the Applicant to meet the minimum work requirements for the government’s Paid Parental Leave Scheme.

[27] On 28 November 2018, the Respondent confirmed that the redundancy package for the Applicant would be twelve weeks redundancy pay and would not include a payment for parental leave, as the Applicant would not be employed at the date of birth of her child. The Applicant responded by requesting the Respondent to extend the temporary position to 5 April 2019.

[28] A number of emails were sent between the Respondent and the Applicant to clarify the available options from 29 November to 1 December 2018. On the 1 December 2018, the Respondent emailed the Applicant and requested that she indicate whether she would accept the temporary offer of employment by the end of that day. On the same day the Applicant responded and indicated a willingness to accept the temporary position on the basis the Respondent would guarantee a redundancy payment at the end of the temporary position.

[29] On 3 December 2018, the Respondent emailed the Applicant and indicated that the Applicant had refused the offer of temporary employment and therefore the Applicant’s final pay including the redundancy pay would be processed in the following pay run.

CONSIDERATION

s.366(2)(a) – The reason for the delay

[30] On 3 December 2018, the Applicant was terminated by the Respondent.

[31] On 14 March 2019, the Applicant lodged an application alleging that she was subjected to discrimination in contravention of s.351 of the Fair Work Act 2009 (Cth).

[32] The Applicant was made redundant effective 30 November 2019. An application involving dismissal must be made within 21 days after the dismissal took effect, therefore the Applicant should have filed an application by 21 December 2018. The delay by the Applicant in filing her application is 104 days.

[33] The Applicant provided an outline of argument which was filed 20 June 2019. Her explanation as to why she was unable to make her application within the 21 day timeframe was based upon medical grounds. The only evidence in which the Applicant relies on to support her reasoning is a medical certificate from her obstetrician, who delivered her first child born 27 March 2019. The medical certificate indicated that the Applicant suffers from depression, anxiety and panic attacks and had been referred to a clinical psychologist during her pregnancy and for a period afterwards. It also stated that the Applicant has a history of severe epilepsy and had 2 temporal lobectomies in order to control her seizures. It further went on to say that she is under the care of a neurologist for her epilepsy. The obstetrician also confirmed that the temporal lobectomy operations to control the Applicant’s epileptic episodes have caused significant difficulties, including fatigue for the Applicant.

[34] No other medical evidence is led on behalf of the Applicant, however she explained that “each time I tried adding more detail to the form for capital fair capital work capital commission I had panic attacks, became severely depressed, anxious and suicidal,” and she further added, “anxious that the above-mentioned stresses would contribute to having a miscarriage.”

[35] During the hearing, the Applicant reconfirmed that she had difficulties and felt overwhelmed in completing the paperwork in Form F8 due to her medical condition, which included short-term memory problems.

[36] The Applicant must establish that there were “exceptional circumstances” in the case which warrants an extension of time being granted. As outlined in Nulty v Blue Star Group Proprietary Limited, 7 the full bench found exceptional circumstances must be “out of the ordinary course, unusual, special or uncommon.”8

[37] Evidence was led by the Respondent that during email correspondence with the Applicant, the Applicant had threatened on more than one occasion to file a general protections claim against the Respondent prior to the redundancy taking effect and that she was in the process of seeking legal advice.

[38] The Applicant provided no specific account as to why she did not lodge the application until 14 March 2019. In her testimony she maintained she had made attempts to complete the application, however due to her medical issues, she found it difficult to complete the task.

[39] The Applicant established she had a number of significant medical issues and was in her last trimester of her first pregnancy. Despite this, there was no specific evidence to support lodging her application 104 days late.

[40] The Applicant did not establish the reasons for the significant delay in lodging her application. With respect to allowing an extension of time, this criterion weighs in the Respondents favour.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[41] The steps and action taken by an Applicant to contest the termination, other than by virtue of the Application, will be relevant considerations and may weigh in favour of granting an extension of time. 9

[42] In evidence led by the Respondent, the Applicant stated that she would be disputing the redundancy during the meeting held 25 October 2018. In communications that followed, the Applicant indicated that she was looking for opportunities to continue working for the Respondent until at least the date that would give her the ability to make a claim for government funded Paid Parental Leave.

[43] The Respondent clearly understood that the Applicant was engaged in a process in an attempt to mitigate her potential loss of income through redundancy and in particular in relation to obtaining parental leave.

[44] In these circumstances, this is a factor which supports the granting an extension of time for the Applicant.

s.366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[45] An extension of time will not be granted where the extension prejudicially affects a Respondent to a proceeding. Furthermore, a mere absence of prejudice to a Respondent is an insufficient basis to grant an extension of time. 10 This rationale is consistent with the decision in Brisbane South Regional Health Authority v Taylor,11 where it was found that a lengthy delay in commencing an action will give rise “to a general presumption of prejudice”.12
[46] Therefore, in relation to this matter, there is not sufficient evidence before the Commission that there would be undue prejudice to the Respondent should an extension of time be granted.
s.366(2)(d) – The merits of the application
[47] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[48] The Applicant alleges she was terminated to avoid the employer having to pay parental leave. The Respondent denies this allegation and has presented evidence that supports the case that following a review of the organisation, a restructuring process of a number of roles within the business occurred. A consultation process followed and a matrix assessment of staff was undertaken to assess all affected staff.

[49] The Applicant in fact had the second lowest score in the matrix assessment. A total of 17 staff were redeployed within the business and 22 staff were made redundant. No evidence was led by the Applicant that the matrix assessment was flawed.

[50] The Respondent entered into several rounds of meetings with the Applicant to assist in identifying a suitable solution and outcome after the redundancy process was concluded. A temporary offer of redeployment was made that would assist the Applicant in successfully applying for the government funded Paid Parental Leave, however, this offer was rejected by the Applicant.

[51] In this case, the Respondent will have a strong argument on the merits. Based on the evidence submitted by the Respondent in relation to the number of employees who were redeployed within the business, those who were made redundant and the assessment matrix outcome of the Applicant, the case for the Applicant – that is, that adverse action (making her redundant) was taken against her in contravention of a general protection) would be difficult to establish. In these circumstances, this factor weighs against the Applicant.

s.366(2)(e) – Fairness as between the person and other persons in a like position

[52] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 13

[53] No submissions were made on this matter by the parties and this is therefore a neutral matter in this case.

Conclusion

[54] On the evidence provided to the Commission, the Applicant has not been able to establish extraordinary circumstances pursuant to the relevant legislative provisions.

[55] Therefore, on balance and pursuant to section 366(2) of the Act, 14 an extension of time is not granted. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710477>

 1   Nulty v Blue Star Group [2011] FWAFB 975.

 2   Ibid.

 3   Ibid.

 4   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 5   Halls v McCardle and Ors [2014] FCCA 316.

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38].

 7   Nulty v Blue Star Group Proprietary Limited (2011) 203 IR 1.

 8   Ibid at [13].

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

 10   Ibid.

 11   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

 12   Ibid.

 13   Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

 14   Fair Work Act 2009 (Cth), s366(2).