Alison Graham v Tronics Pty Ltd

[2014] FWC 803

[2014] FWC 803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Alison Graham
v
Tronics Pty Ltd
(C2013/6840)

COMMISSIONER RYAN MELBOURNE, 3 FEBRUARY 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] On 25 November 2013 Ms Graham filed an application with the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). The application identified the date of dismissal of employment as 1 November 2013.

[2] The application was not filed within the 21 day time limit set by s.366(1) of the Act.

[3] Ms Graham has sought that the Commission extend the time for making an application under s.365 so as to allow Ms Graham to file her application on 25 November 2013. Tronics P/L opposes the application for an extension of time.

[4] Both parties agreed to have the application for an extension of time determined on the papers. Both Ms Graham and Tronics P/L filed detailed submissions in support of their respective positions.

[5] The Fair Work Commission may pursuant to s.366(2) grant an extension of time for the filing of an application under s.365 if it 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.

[6] In Cheyne Leanne Nulty v Blue Star Group Pty Ltd], a Full Bench said of s.366(2):

“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.”  1

The Applicant’s Case

[7] Ms Graham presented the following written submission in support of her application for an extension of time.

“To support my request for an extension of time I submit the following information.

On November 1st 2013 I was dismissed from my position of Service Dispatcher with Tronics Pty after an eventful 5 months where I was subjected to unnecessary and unwanted scrutiny from my peers, and was unsupported by my management, which in turn resulted in my clinical depression being exasperated. This resulted in a number of sick days for my mental well being, as well as the final week of my work being quite a rollercoaster ride of which I will explain in further detail after addressing the issue of why this application was submitted 3 days after the deadline of 22nd November 2013.

To say I was in a state of shock is not surprising. Due in part to my depression I was feeling extremely distraught, stressed and worthless. I was unsure of what, if anything I was able to do. It was suggested to me that I may have a case for unfair dismissal so I checked on the Fairwork Australia website and discovered that due to my time with Tronics (just over 5 months) I was unable to proceed with an unfair dismissal case.

On the 6th November I attempted to call the Fairwork Commission on 1300799675 a couple of times but was unsure of what area I wanted to talk, and in particular based on advice on the automated system felt that I was not calling the correct number for the questions I wanted to ask.

I also attempted to call 131394- the Fairwork Infoline- but again failed to speak to anyone as I was not sure of the options and the wait time was considerable, and had been unable to find any helpful information on their website.

I also called 1300792387- Victoria Legal Aid- to seek advice and again failed to speak

to anyone due to considerable wait times.

I would like it noted that due to the exasperation of my depressive state I was feeling extremely unconfident and unsure of myself and therefore was not willing to wait on the phone at the possibility of being told I could do nothing. My confidence was shot and I was very close to giving up completely, and tucking tail and returning to North Queensland where my family support network were.

On 11th November 2013 I called 96411444- Worksafe Victoria and spoke to an advisor there who advised that the situation that I had suffered for the 5 months I was with Tronics was indeed an example of Workplace Bullying and if I wanted to I could lodge a request with them to follow up on the situation at Tronics. I asked them what I could do in the meantime regarding legal action against the company and they advised to speak to a legal practitioner or Jobwatch for advice.

On the 12th November I called 0396621933 Jobwatch 3 times and was unable to get through to a person. Jobwatch have an automated response when they are busy that advises you they are busy then disconnects you. I also sent an email to Max Legal through their website describing my situation and requesting assistance on a no win no fee basis, as due to being unemployed I was unable to pay any upfront costs.

On the 13th November I again called Jobwatch and again received the same result.

On the 14th November I made the decision to move back to North Queensland to my family support network and so my focus was on the required actions for this to happen, and I did little further follow up in regards to my options until 25th November.

I had also received an email back from Max Legal (date unknown as I deleted it) advising me that they had too much work to take on my case but had provided some advice in regards to options I could undertake, one of which was a general protections dispute. Upon investigation of this through the Fairwork Australia website, my understanding led me to believe that it was not an avenue I could pursue.

On November 25th I rang Jobwatch one last time and finally spoke to a gentleman, who explained why a general protections dispute was something that I could pursue, though he did warn me that I was outside the allowed time limit to lodge the application but I may still be able to pursue the dispute and may need to request an extension of time. He also provided me further information on other avenues I could pursue to get free legal advice if I required and other actions to take in regards to the workplace bullying.

I then submitted my General Protections dispute to the Fairwork Commision (sic) on

November 25th and awaited the result.

In conclusion I wish to be granted an extension of time based on the extenuating circumstances as provided above- my depression and lack of financial stability did not allow for me to be able to investigate and fully pursue all avenues available to me within the 21 day time limit. Also against me was the service providers automated system that did not allow for me to reach an actual person who could divulge the correct information to me and no legal service provider I approached were able to give me the required information due to the requirement of upfront fees to be paid for a consultation.”

[8] As Ms Graham raised the issue of her depression I had my Associate write to Ms Graham asking her to provide any medical evidence relating to her depression. Ms Graham responded to the Commission (but it appears that her response was not copied to Tronics P/L) advising that she had been on anti-depressants for 15 years and she named the medication and dosage that she was taking. Ms Graham did not provide any medical certificates or medical opinions but advised the Commission that “each doctor I have seen I let them know that I suffer from depression. I may still have a mental health plan from my doctor earlier this year when dealing with issues at Tronics.”

The reason for the delay

[9] I accept that Ms Graham suffers from depression and has been on anti-depressant medication for 15 years. However, it is clear from Ms Graham’s submission that notwithstanding her depression she has managed to work effectively over that time. Ms Graham cites comments made by her manager Mr Con Haltogiannidis on 30 October 2013 in relation to her work performance that “You’re not doing a good job you’re doing a great job”.

[10] The existence of any mental illness may explain and justify a delay by an applicant in making an application under s.365 of the Act. However, the mere presence of a mental illness is not sufficient. In the present matter where Ms Graham has managed her depression for 15 years it is difficult to accept that her depression gives rise to an exceptional circumstance in this matter.

[11] Ms Graham also contends that her delay in making the application within the prescribed time was affected by a state of shock occasioned by the dismissal. Feelings of shock, distress, emotional hurt are usually suffered by persons who are dismissed. In the present matter Ms Graham had already told Mr Haltogiannidis that she intended to leave her employment. The shock to Ms Graham appears to be from the fact that her employment was terminated much sooner than she wanted or anticipated.

[12] Ms Graham also contends that the delay in her making an application under s.365 was because of the difficulty in getting advice as to her rights to make an application to the Fair Work Commission.

[13] The tale Ms Graham recounts of the difficulties in dealing with automated telephone systems which require the caller to choose from a selection of options and then wait for extended periods before ever getting to a real person or calling a number and having to wait for very long periods before your call is answered are such common occurrences in modern life that it would not be an exceptional circumstance.

[14] I also note that Ms Graham provided details of the calls made to the several infolines and that discloses the following :

Date	Number Called	Entity	Time of Call	Duration of Call
6 NOVEMBER 2013	1300799675	FWC	111.55am	1min 55secs
6 November 2013	1300799675	FWC	12.00pm	2mins 30secs
6 November 2013	1300799675	FWC	12.04pm	2mins 52secs
6 November 2013	131394	Fairwork Infoline	11.57am	1min 4secs
6 November 2013	131394	Fairwork Infoline	11.59am	0min 19secs
6 November 2013	1300792387	Victorian Legal Aid	12.23pm	1min 41secs
7 November 2013	1300792387	Victorian Legal Aid	8.10pm	0min 18secs
11 November 2013	96411444	WorkSafe Victoria	4.21pm	18mins 1sec
11 November 2013	1300792387	Victorian Legal Aid	4.52pm	9mins 55secs
12 November 2013	96621933	Jobwatch	2.13pm	0min 41secs
12 November 2013	96621933	Jobwatch	2.20pm	0min 28secs
12 November 2013	96621933	Jobwatch	2.51pm	0min 16secs
13 November 2013	96621933	Jobwatch	10.57am	0min 17secs

[15] Whilst it appears that Ms Graham was prepared to wait on hold for nearly 10 minutes with Victorian Legal Aid and up to 3 minutes with FWC the above table show that 5 calls ended in less than 30 seconds.

[16] The very real difficulties facing anyone trying to access a real person by telephone to get information might constitute an exceptional circumstance if there was no other way to get the information. However there is detailed information in relation to both unfair dismissals and general protections applications on the Fair Work Commission website.

[17] Ms Graham acknowledges that she visited this website after Max Legal provided her with some general advice as to a general protections application. As Ms Graham contends “Upon investigation of this through the Fairwork Australia website, my understanding led me to believe that it was not an avenue I could pursue.” Yet when Jobwatch suggested to Ms Graham on 25 November 2013 that she could pursue a general protections application, she immediately did so.

[18] It may very well be the case that the explanation received from Jobwatchwas sufficient for Ms Graham to decide to make a general protections application. However, the information available on the Fair Work Commission website is sufficiently clear and accessible that any prospective applicant for a general protections application involving dismissal could make the decision to file an application. That Ms Graham came to the view after visiting the website that she could not make a general protections application at the very least shows that she considered the material available on the website.

Any action taken by Ms Graham to dispute the dismissal

[19] Whilst Ms Graham provided no specific evidence or even submission which identified action taken by her to dispute the dismissal I accept that the conduct of Ms Graham in attempting to access information as to her rights in relation to the dismissal is relevant conduct as it led to Ms Graham disputing her dismissal under s.365 of the Act.

Prejudice to the employer (including prejudice caused by the delay)

[20] Tronics P/L contended that “they should not lightly be put to the cost and inconvenience of defending an application lodged out of time.” Apart from this contention Tronics P/L led no evidence as to the prejudice they would suffer if an extension of time was granted.

[21] However, as Marshall J noted in Brodie-Hanns v MTV Publishing Ltd: “The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.” 2

The merits of the application

[22] Whilst the merits of the substantive application must be taken into account when considering an application for an extension of time it is necessary to keep in mind what the Full Bench said in Kyvelos v Champion Socks P/L:

“… It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application (for an extension of time for the lodgment of an application). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 3

[23] In the present matter both Ms Graham and Tronics P/L provided unsworn evidence as to the events leading up to the termination of the employment relationship. Whilst there are some clear differences in the two versions there is also a significant degree of commonality in the two accounts.

[24] The application in this matter described the alleged contravention of the general protections provisions as follows:

“2.2 Description of alleged contravention(s):

Employer failed to take reasonable action when I was being unfairly bullied by co-workers.

I continuously mentioned to my manager, Con Haltogiannidis, that I felt that I was being unfairly scrutinised and that my co-workers actions were being done with malicious intent. As far as I was aware the only action taken was a directive from him to me asking me not to respond to any emails from either colleague. He informed me that it was just a personality clash, and that my co-workers knew what buttons to press which they did often.

After such clashes with my co-workers I would take a day off due to the stress of the situation. I suffer clinical depression and the behaviour of my co-workers was resulting in my depression to be triggered.”

[25] In her written submissions to the Commission on the extension of time application Ms Graham said:

“I submit that I was fired from Tronics Pty Ltd because of the ongoing conflict that had occurred over the 5 months of my employment with (name redacted) and (name redacted), and the resulting sick days I took to deal with the stresses caused by the situation. Con Haltogiannidis mentioned on numerous occasions that I was very good at my job and was doing exactly as he wanted me to do. And evidently was willing to keep me on until again one of my co-workers complained about me.”

[26] Ms Graham concedes in her written submission that the first time that she revealed to Tronics P/L that she suffered from depression was at a meeting on 28 October 2013:

“On October 28th a meeting took place between Scott Foreman, Con Haltogiannidis and I.

I was informed that my probationary period was to be extended, and a warning sent to (name redacted) for her inappropriate behaviour on the 24th of October. Whilst I do not recall the conversation verbatim I do recall mentioning in this meeting that I suffered from depression, and that the situation with (name redacted) and (name redacted) was making it worse, so much so that I had gone to my doctors to increase my anti-depression medication. And that I was trying to exercise more to help with my stress levels. Scott at this point said that he didn’t know I suffered from depression to which I jokingly replied “It’s not something you mention in an interview.” I also mentioned that 2 months previously I had considered looking for work elsewhere and even had a job interview lined up, but decided that I needed to give Tronics a fair go, that they deserved my loyalty because aside from the dramas with (name redacted) and (name redacted) it was a good place to work. The discussion then went on to what the future plans were for the Service Department of Tronics Pty Ltd.”

[27] On 29 October 2013 Ms Graham had a further meeting with Mr Con Haltogiannidis and she describes that meeting as follows:

“On October 29th I had a meeting with Con and advised him that I was giving him a heads up that I was looking for work elsewhere. This was so that he could engage my replacement and that I could do a suitable handover with them. I at no point said that I was resigning just that I was looking for work elsewhere based on the last 5 months and the direction of where things were going with Tronics Pty Ltd. I also admitted that by doing so it may result in me being fired based on the previous drama’s but it was a risk I was willing to take. I said that I would work out the 4 weeks notice if that did occur as I do not like to leave a job in any kind of mess, and want to pave a smooth path for my successor. Con admitted he was not surprised based on our conversation the day before and that he was disappointed as it would set the service department back by 6 months. I returned to my desk and he had a short conference with Scott Foreman who was still in the head office. Con then called me back into the meeting room and advised me that due to the information provided, Tronics would pay me up to the 29th of November should I need to leave earlier than that date. I asked him did this mean he was giving me my 4 weeks notice to which he replied yes. I accepted this and returned to continue my work.

When I left that afternoon as I was leaving I saw Joanna Roussis standing out in the smoker’s area in the carpark, and she asked what had happened. I said that “They gave

me my notice.” and she reacted with shock. I then went home.”

[28] The version of events on this matter presented by Tronics P/L is slightly different. The signed but unsworn witness statement of Mr Con Haltogiannidis contains the following recount as to parts of the meeting held on 29 October 2013:

“16 Alison then said that she might be shooting herself in the foot by telling me this, but she had been looking for another job. Alison said that she was not happy at Tronics and that she had not been happy for a while. She also said that she had applied for jobs in the last few weeks, and that there was one job that week with a plumbing company in the city paying $55,000 and that she hoped she got it. Alison also said that she did not want to leave Tronics in the lurch.

17 I was a bit shocked by this information. I said to Alison that I could not believe that she was telling me this and that I was not sure why she would be telling me this.

18 In response, Alison said that she just did not want to leave Tronics in the lurch.

19 Alison then asked me how I thought she was doing at Tronics to which I replied that she was doing a great job but that she needed to take a step back and not react the way she does in emails with Kylie and Sue. .........

20 Alison then spent some time complaining about other staff at Tronics. ......

21 The meeting ended and Alison went back to her desk and I went to speak with Scott to tell him everything that Alison had just told me. This included telling Scott that Alison was disappointed about the extension of her probationary period, that she refused to do the proposed cold calling and that she was planning on leaving Tronics. We then discussed what we should do about the situation. I said to Scott that one thing that Alison could do is just leave Tronics and the last thing I wanted was for a service dispatcher (Alison’s position) to just leave when all that Alison had to do was to give us 1 week’s notice. I then discussed with Scott whether we could offer her a timeframe in which she could leave Tronics so that we would be able to start looking for her replacement. Scott agreed with this approach.

22 I then went and asked Alison to come back into the meeting room so that we could discuss the situation further.

23 When we were back in the meeting room, I asked Alison what are we (meaning her and Tronics) going to do in light of what she had told me in the earlier meeting. I asked Alison how long was it going to be before she left. In response, Alison said it could be next week or in 4 weeks or later, but that she was definitely leaving Tronics. Because Alison had made it clear that she was intending on leaving Tronics I wanted some certainty as to when she would leave. We then discussed that her final day of work at Tronics would be 29 November 2013.

Alison agreed to this and we also agreed that if we found someone to replace Alison prior to this date, that Alison could provide training for that person for the remainder of the period up to 29 November 2013.

24 While we had agreed on the date that would be her last day at work, I said to Alison that I would give her a few days to think about what we had discussed and for her to think about what she wanted to do. As Alison had made it clear that she was intending to leave Tronics, I also said that what we had discussed about her last day at work was not open for further negotiation, but that I wanted her to decide whether she would finish work on the agreed date or if she did not want to continue working until then, she could leave by providing 1 week’s notice.”

[29] If Ms Graham’s version of events was found to be the correct version it would still suggest that the reason for the decision to terminate Ms Graham’s employment related to her announcement that she was giving Mr Haltogiannidis “a heads up that I was looking for work elsewhere”.

[30] Having regard to the statements of Ms Graham, Mr Haltogiannidis and Mr Foreman the merits of Ms Graham’s case do not appear to be strong.

[31] I note the comment of the Full Court of the Federal Court in Haining v DP Drake:

“If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.” 4

[32] Whilst I do not consider Ms Graham’s case to be without merit or without reasonable prospects of success I certainly would not consider her case to be highly meritorious.

Fairness as between Ms Graham and other persons in a like position

[33] This factor is neutral in the present matter as there are no other persons in a like situation of the Ms Graham.

Conclusion

[34] I am not satisfied, having taken into account each of the matters identified in s.366(2), that there are exceptional circumstances present such that I could exercise a discretion to grant an extension of time to Ms Graham. Whilst some matters weigh in favour of a grant of an extension of time, some others weigh against a grant of an extension of time. On balance I conclude that there are no exceptional circumstances which warrant an extension of time being granted.

COMMISSIONER

 1   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at pn [13].

 2   Brodie-Hanns v MTV Publishing Ltd, (1995) 67 IR 298 at 300.

 3   Kyvelos v Champion Socks P/L Print T2412.

 4   Haining v DP Drake [1998] FCA 1168.

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