Alison McDonald v D&A Mitrevski Pty Ltd T/A Stockdale Leggo Bayswater

[2016] FWC 4670

[2016] FWC 4670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Alison McDonald
v
D&A Mitrevski Pty Ltd T/A Stockdale Leggo Bayswater
(C2016/1291)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JULY 2016

Application to deal with contraventions involving dismissal.

[1] Ms Alison McDonald alleged that the termination of her employment by D&A Mitrevski Pty Ltd trading as Stockdale Leggo Bayswater was in breach of the general protections provisions of the Fair Work Act 2009. Stockdale denies the allegation.

[2] At the hearing I granted permission for Ms McDonald to be legally represented. I accepted her submission that it would be unfair to not grant permission because she was not able to represent herself effectively.

[3] Given her dismissal took effect on 6 or 7 May 2016 her general protections application lodged on 2 June 2016 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Ms McDonald submitted that she had been bullied at work and she had made complaints about this to her employer. As a result she suffered stress and anxiety and she suffered debilitating migraines. The medical report filed in support of permission to appear supports a finding her medical condition impacted on her ability to make this application in time.

[7] Ms McDonald, during this time, made inquiries of Worksafe as well as dealt with requests by Stockdale for her to return their keys. Ms McDonald said her medical condition did not prevent her contacting Worksafe because she could do so by telephone. Ms McDonald said she was unaware that she could have made this application by telephone.

[8] Ms McDonald gave evidence that while she had been in contact with her lawyers prior to 1 June 2016 this was not in relation to her dismissal.

[9] Ms McDonald sought legal advice in relation to her dismissal on 1 June 2016 and an application was made the next day.

[10] I am satisfied that the evidence of Ms McDonald’s medical condition explained her delay in lodging this application.

[11] This weighs in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[12] Ms McDonald was advised by text message and by hand delivered letter on 6 May 2016 that her employment had ended. She said she was unaware of the letter until 7 May 2016. Even accepting that she was not aware of the dismissal until 7 May 2016, and therefore the dismissal took effect on that day, she still had the full 21 days to lodge her application.

[13] However given her medical condition I consider this criterion to be neutral.

(c) any action taken by the person to dispute the dismissal;

[14] Ms McDonald did not do anything to dispute her dismissal. However Ms McDonald was off work due to her medical condition when the dismissal took place and given the failure of Stockdale to provide any explanation for the dismissal it is not surprising that she did not dispute the dismissal. I consider this criterion to be neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[15] Evidence was called to support a finding that the failure of Ms McDonald to return company property including keys caused the business difficulties. However no evidence was called that there would be any prejudice to the business if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[16] In the matter of Kornicki v Telstra-Network Technology Group² the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."³

[17] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."⁴ 

[18] Ms McDonald said that there had been a breach of s.352 of the Act because she was dismissed while she was on sick leave and Stockdale gave no reason for the termination of employment.

[19] Stockdale stated that Ms McDonald did not provide a medical certificate and stated that it was not required to give a reason for dismissing Ms McDonald.

[20] It is clear that s.352 does not protect an employee from dismissal while he or she is temporarily absent from work due to illness or injury. It deals with the termination of an employee because he or she is temporarily absent from work due to illness or injury. It will be incumbent on Ms Donald to prove she was temporarily absent from work due to illness or injury as set out in regulation 3.01(2)-(6) and then it will be incumbent on Stockdale to prove that this was not one of the reasons for the dismissal.

[21] Ms McDonald did not call any evidence to support her claim that she had complied with regulation 3.01 and Stockdale did not call any evidence to rebut the presumption in s.361. In those circumstances, I consider the merits to be a neutral consideration.

(f) fairness as between the person and other persons in a similar position.

[22] There were no submissions that there were any persons in a similar position. I consider this criterion to be a neutral consideration.

Conclusion

[23] I am satisfied that there are exceptional circumstances. Ms McDonald’s medical condition was severe. She had a reasonable explanation for the delay. While none of the other criteria weigh in favour of such a finding, given the short period of delay and the lack of any prejudice to the employer I am satisfied that there are exceptional circumstances and I would exercise my discretion to grant an extension of time. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A. Foster for the Applicant.

D. Mitrevski for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

11 July.

1 [2011] FWAFB 975.

2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

3 Ibid

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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