Educator Denied Extension of Time to Lodge Out of Time Unfair Dismissal Case

In Jagdeep Kaur Gill v Cranbourne ONE Early Education Group Pty Ltd before the Fair Commission an application was made to lodge an unfair dismissal claim, under the Fair Work Act 2009, outside the prescribed period. In this case Mrs Jagdeep Kaur Gill (the Applicant) commenced employment with Cranbourne ONE Early Education Group Pty Ltd (the Respondent) on 20 March 2023. She was employed in the position of an early childhood teacher. The reason given by the Respondent for the decision to terminate the Applicant’s employment was serious misconduct. Specifically, it was alleged that the Applicant left a group of 5 children from the 3–5-year-old room unsupervised for approximately 15 minutes in breach of s.165(1), National Law. The alleged breach was reported to the Victorian Department of Education. The Applicant accepted that the children in her care were left unsupervised but referred to mitigating circumstances including that she was focussed on a child with special needs, that care of the children is collaborative and that the children are able to enter other rooms though a bathroom. While there was a meeting held prior to the termination, the Applicant claimed she was not given a proper chance to explain herself. The Commission declined to extend the time period, stating that (paras.38-9):

A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

As I have indicated, I am not satisfied that there is an acceptable reason for the delay, the Applicant had the full benefit of the 21-day period to lodge her application and the merits of her case are not strong. These factors weigh against the Applicant. The Applicant did try to dispute her dismissal by contacting the Department of Education which weighs slightly in her favour. All other factors are neutral considerations.