1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Monica Marschall
v
Home Care Plus
(U2013/8264)
COMMISSIONER HAMPTON ADELAIDE, 6 SEPTEMBER 2013
Alleged unfair dismissal extension of time required - whether exceptional circumstances -
dismissal for alleged misconduct - criminal proceedings taken - unfair dismissal application
not made until criminal proceedings withdrawn - some further delay - impact of medical
condition considered - not exceptional circumstances - no basis for exercise of discretion -
application dismissed.
1. Introduction
[1] Ms Monica Marschall has applied under s.394 of the Fair Work Act 2009 (the Act)
seeking a remedy for an alleged unfair dismissal. The respondent employer is Home Care
Plus, which is a Division of the Paraplegic and Quadriplegic Association of SA Inc (Home
Care).
[2] Ms Marschall was employed by Home Care as a casual support worker from February
2010 until her dismissal on 15 October 2012. Home Care contends that the dismissal was
based upon the applicant’s misconduct; being that she had “admitted to physically abusing a
client, by hitting them with a clenched fist.”1 The incident leading to the dismissal occurred
on Saturday 13 October 2012.
[3] Criminal charges relating to the incident were laid against Ms Marschall shortly after
the dismissal. Although there were early indications that these charges would not proceed,
they were not ultimately withdrawn until some months later.
[4] The unfair dismissal application was lodged with the Fair Work Commission on
8 April 2013 and this is beyond the relevant initial statutory period within which such
applications must be made. The Act however permits the Commission to allow a further
period if it is satisfied that exceptional circumstances exist and that it is appropriate to grant
an extension.
[5] The Act was amended during 2012 to change the initial lodgement period and it is
appropriate to determine whether this applies to Ms Marschall.
[2013] FWC 5299
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 5299
2
[6] Home Care has objected to the matter being dealt with on its merits due to the
extension of time required by Ms Marschall. Section 396 of the Act relevantly provides that
the Fair Work Commission must determine as a preliminary point (amongst other matters)
whether the application was made within the initial period allowed by the Act, and if not,
whether that time should be extended.
[7] Ms Marschall contends that given the context, exceptional circumstances existed and it
would be unfair not to extend the time limit to allow the application to proceed.
[8] Accordingly, this matter raises the following issues for determination:
What is the relevant statutory lodgement period applying to this application?
Are there exceptional circumstances associated with the making of this
application; and if so
Should a further period for the lodgement of the application be given to allow the
application to be heard on its merits?
2. What is the relevant statutory lodgement period applying to this
application?
[9] Section 394 of the Act as it stood at the time of the dismissal relevantly provided as
follows:
“….
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under
subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into
account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[10] The Act was amended2 in relation to dismissals taking place on or after 1 January
2013 to extend the initial period in s.394(2)(a) to 21 days, with the same relevant
considerations to be applied.
[2013] FWC 5299
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[11] It is however the Act as standing at the time of the dismissal that must be applied.3
[12] References to FWA are to be taken as being to the Fair Work Commission.
[13] Accordingly, s.394(2) of the Act provided a 14-day period within which to lodge the
unfair dismissal application. The period is defined as being 14 days after the dismissal took
effect and the 14-day period is exclusive of the day of the event; in this case, the dismissal.4
[14] Ms Marschall was dismissed on 15 October 2012. In that light, the application should
have been lodged with the Commission by 29 October 2012. Further, an extension of time of
over five months is required if this matter is to be considered on its merits.
3. Are there exceptional circumstances associated with the making of
this application?
[15] Section 394(3) of the Act provides the Fair Work Commission with discretion to
extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional
circumstances exist to warrant that action. In considering whether exceptional circumstances
exist for this purpose, I am required to take into account the considerations outlined in
paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.
[16] Although the statutory discretion in s.394(2) requires the relevant considerations to be
assessed in an overall manner and these are interrelated, it is convenient to discuss the issues
under the various factors raised by the respective subsections of the Act. In assessing these
matters, I have considered the ordinary and natural meaning of “exceptional circumstances”
and whether the combination of factors in this case, when viewed together, may reasonably be
seen as producing a situation which is out of the ordinary course, unusual, special or
uncommon.5
[17] Where “exceptional circumstances” are established, there remains discretion to grant
or refuse an extension of time. That discretion should be exercised having regard to all the
circumstances including, in particular, the matters specified in s.394(3) and will come down
to a consideration of whether, given the exceptional circumstances found, it is fair and
equitable that time should be extended.6
What was the reason for the delay?
[18] The delay of some five months beyond the stated period is very significant in relative
terms; but I need to consider the particular context of that delay particularly in terms of any
explanation.
[19] Ms Marschall, who was represented with permission by Mr Sampson, contends in
effect that:
She admitted to striking the client however this was done in self defence in the
context of feeling threatened;
The dismissal was conducted with undue haste and in a grossly unfair manner on
15 October 2012;
[2013] FWC 5299
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A police investigation was conducted and charges were laid under the Criminal Law
Consolidation Act 1935 (SA) on 19 October 2012;
Ms Marschall, who has a history of depression, was impacted by both losing her job
and being charged and had to increase her medication as a result;
Pre-trial proceedings took place in mid January and early February 2013 and
although there was an indication that the charges would not proceed, it was not until
late March that this was confirmed; and
Upon hearing of the withdrawal of the criminal charges, the applicant sought advice
and promptly lodged the unfair dismissal matter.
[20] Ms Marschall’s position is that having been charged with a criminal offence, she was
focused upon defending that matter and did not have the capacity to deal with that and an
unfair dismissal matter due to her medical condition and treatment. This, she contends, was an
acceptable explanation.
[21] Ms Marschall gave evidence about her medical condition and the circumstances
leading to her ultimate lodgement of the unfair dismissal application.
[22] Ms Frankish and Ms Houston, who represented Home Care, contend in effect as
follows:
Ms Marschall was dismissed for serious misconduct, being that she admitted
assaulting an intellectually disabled client;
The criminal charges were different in nature and there was nothing to prevent the
applicant lodging the unfair dismissal matter; and
Ms Marschall knew, or should have known, in mid February 2013 that the criminal
charges were not proceeding and the unfair dismissal application was filed almost
two months after the criminal proceedings ceased.
[23] Having considered the evidence of Ms Marschall and the other material before the
Commission I find as follows.
[24] Ms Marschall has a medical condition which involves taking medication when needed
and this is relevant to her explanation for the delay. The medical condition was exacerbated
by the dismissal and the criminal charges. It was also difficult for her to deal with both the
criminal charges and the dismissal itself.
[25] Ms Marschall was however capable to, and did, seek advice and representation in
relation to her circumstances shortly after the charges were laid. Further, she also sought
advice in relation to her dismissal in mid February 2013.7
[26] Pre-trial proceedings in relation to the charges took place in mid January at which time
Ms Marschall’s position of self defence was given some credence by the Magistrate and the
prosecution indicated that the charge would be reviewed. Home Care was informed that the
charges would not be further investigated by the Police as early as mid February 2013. The
charges were discontinued on 5 March 2013. However, Ms Marschall was not informed that
the charges would not be further investigated by the Police,8 and had been formally
withdrawn, until around mid March.
[2013] FWC 5299
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[27] Upon hearing of the dropping of the charges, Ms Marschall took further advice,
reviewed the Commission’s website and filed the unfair dismissal application on 8 April
2013.
[28] I note that tension between the prospect of defending criminal changes and the need to
lodge an unfair dismissal application is not an uncommon feature of this jurisdiction.9
[29] In summary, there is some reasonable explanation for elements of the delay in lodging
the application associated with the applicant’s medical treatment and medication, however
significant periods of the delay have not been satisfactorily explained.10
When did Ms Marschall first become aware of the dismissal after it had taken effect?
[30] Ms Marschall was aware of the dismissal on the day it took effect.
[31] This is a consideration militating against a finding of exceptional circumstances.
Any action taken by Ms Marschall to dispute the dismissal
[32] This consideration is clearly related in this case to the reasons for the delay as
discussed above.
[33] Ms Marschall took no action to seek advice or apparently consider contesting the
dismissal issue until mid February 2013. She did apparently seek some advice at that time
however no action was ultimately taken until mid or late March after she became aware of the
formal withdrawal of the criminal proceedings. The desire to prioritise the defence of the
criminal charges was understandable, particularly given her medical condition. However,
there is no satisfactory explanation for not taking any action to commence the dispute of the
dismissal prior to late March 2013.11
[34] This is a consideration militating against a finding of exceptional circumstances.
Is there prejudice to Home Care (including prejudice caused by the delay)?
[35] Home Care does not rely upon any particular prejudice. Although the absence of
prejudice is not of itself a reason to grant an extension, this is a consideration supporting a
finding of exceptional circumstances.
Is there merit in Ms Marschall’s (unfair dismissal) application?
[36] The consideration of the merit of the application in this context is limited to an initial
assessment on the face of the matter.12
[37] The merit of an unfair dismissal must be assessed in the context of the relevant
statutory considerations applying to these matters.13 Whether the dismissal is unfair is a global
assessment, including consideration such as whether there was a valid reason for the dismissal
and, in effect, whether it was handled in a procedurally fair manner.
[2013] FWC 5299
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[38] The fact that an employee has admitted to striking an intellectually disabled client in
her care would on face value represent a valid reason for dismissal. Ms Marschall does
however claim significant mitigating circumstances including a fear for her own safety given
the nature and size of the client and the absence of a safe escape route from the client’s home.
In effect, Ms Marschall considers her actions to be self-defence. If accepted, this would
potentially change the characterisation of the conduct significantly and would also be relevant
in terms of whether the dismissal was harsh.
[39] Ms Marschall also relies upon what she describes as being, in effect, a summary
process that denied her a genuine opportunity to explain her circumstances. The decision to
dismiss was made by Home Care through an expedited process. Whether this led to unfairness
would need to be determined.
[40] I accept for present circumstances that the unfair dismissal application is not without
merit.
[41] This consideration is a factor supporting the existence of exceptional circumstances.
Fairness as between Ms Marschall and other persons in a similar position
[42] I have not been made aware of any other persons within Home Care in a similar
position to Ms Marschall. This consideration does not arise directly in this matter.
[43] I note however, that the consistent application of principles adopted by the
Commission in similar matters, where an extension of time to contest a dismissal is sought,14
is in line with this consideration and I have strived to adopt that approach in this case.
4. Conclusions
[44] There are competing considerations in this case. These include the existence of a
satisfactory explanation for at least part of the lengthy delay, the potential for prejudice to
Ms Marschall if the unfair dismissal matter is not heard on its merits, and the fact that Home
Care has not claimed particular prejudice.
[45] The considerations also include the fact that a significant period of the delay is not
satisfactorily explained and Ms Marschall did not take any concrete steps to contest the
dismissal for many weeks in the context of a 14 day statutory period. Further, the tension
between defending criminal changes and the need to lodge an unfair dismissal application is
not an uncommon feature of this jurisdiction.
[46] On balance, I am not satisfied that the combination of factors in this case may
reasonably be seen as producing relevant exceptional circumstances. The discretion
established by s.394(2)(b) does not arise.
[2013] FWC 5299
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[47] The unfair dismissal application is therefore not properly before the Commission and
must be dismissed. An order to that end is being issued in conjunction with this decision.15
Appearances:
I Sampson Solicitor, with permission for Ms Marschall.
E Frankish with S Houston of Home Care Plus a Division of the Paraplegic and Quadriplegic
Association of SA Inc.
Hearing details:
2013
Adelaide
July, 15 and 31
Printed by authority of the Commonwealth Government Printer
Price code C, PR539700
1 Letter of dismissal, 15 October 2012.
2 Fair Work Amendment Act 2012.
3 Ibid - transitional provisions.
4 S.36 of The Acts Interpretation Act 1901.
5Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and
Williams C. Although decided in the context of a general protections application, the general approach outlined at pars [12]
to [15] is applicable to the present considerations.
6 Ibid.
7 Transcript PN118.
8 Correspondence from the relevant State Government Agency dated 14 March 2013.
9 See Ashishkumar Sudani v HealthWise Management (Aust) Pty Ltd T/A HealthWise Pharmacies Group [2011] FWAFB
1022; Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFB 5933 as examples.
10 See Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 in relation to the absence of a
satisfactory explanation for the whole of the delay.
11 Transcript PN118 to PN121.
OF FAIR WORK C COMMISSION TAL OF COMMISSIONER C AUSTRALIA - THE
[2013] FWC 5299
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12 That is, the prima facie merits Although also determined in a slightly different statutory context the decision in H Kyvelos
v Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
13 Section 387 of the Act.
14 See Ballarat Truck Centre Pty Ltd v Melissa Kerr [2011] FWAFB 5645, 29 September 2011 per Acton SDP, Kaufman
SDP and Williams C.
15 PR540879.
