Bernadette Snell v Family Life Limited
[2024] FWC 1090
•29 APRIL 2024
| [2024] FWC 1090 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Bernadette Snell
v
Family Life Limited
(U2024/3351)
| COMMISSIONER CONNOLLY | MELBOURNE, 29 APRIL 2024 |
Application for an unfair dismissal remedy - extension of time - extension of time refused - application dismissed
Background
On 22 March 2024, Ms Bernadette Snell (the Applicant) lodged a s.394 unfair dismissal application seeking a remedy in relation to the termination of her employment with Family Life Limited (the Respondent) which is alleged to have occurred on 29 February 2024.
The Fair Work Act 2009 allows 21 days to lodge this application. The application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission to allow the application to proceed.
The application identified that Ms Snell’s employment ended on 29 February 2024. The application was lodged with the Commission on 22 March 2024.
On 9 April 2024, the Respondent lodged a Form F3 Employer Response which indicated that the Applicant was dismissed on 29 February 2024 and raised a jurisdictional objection on the basis that the application was lodged 1 day out of time. The Respondent also disputed the assertion that the Applicant was unfairly dismissed.
This decision only concerns whether I should exercise my discretion to allow Ms Snell a further period for her unfair dismissal application made against Family Life Limited.
On 27 March 2024, I issued directions (which were later amended on 28 March 2024) and advised that the extension of time issue would be considered at a Video Hearing on 15 April 2024. Information about the extension of time issue was provided, including the factors that I am required to take into account in considering this matter was provided along with the directions.
Hearing
A Hearing was conducted by way of video using Microsoft Teams on 15 April 2024. A video file record of the Hearing was kept.
The Applicant was represented by Mr Michael Goldsmith in the proceeding who gave sworn evidence in further support of her submissions. The Respondent was represented by Mr Fuimaono-Page, of the Victorian Chamber of Commerce.
A digital court book was compiled from the material that was filed by both parties and was distributed to the parties prior to the Hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
The parties are not in dispute over when the application was made. While there are disputed facts about the circumstances that gave rise to the dismissal and whether or not the dismissal was unfair, there are no contested facts regarding the jurisdictional issue which is the focus of this decision.
Ms Snell’s position is summarised as follows:
· She was significantly impacted, shocked and distressed by the dismissal and that her termination has had a severe and compounding impact on her pre-existing medicated mental health condition of high stress and anxiety.
· The compounding effect of the dismissal and its additional emotional impact on her led to her feeling vulnerable, anxious and overwhelmed. Being in this physical, emotional and mental state significantly hindered her capacity to file the application within the required time.
· Further, her partner and long-time support person, Mr Goldsmith, was absent for a part of the 21-day period and was unable to support and assist her to the extent necessary to complete the application within time.
· Finally, that the application was only 1 day late.
The Respondent provided initial brief written submissions to its objection in its original F3 response and later provided additional written submissions. Their position is summarised below:
· Ms Snell’s application has been lodged 1 day beyond the 21-day requirement and should be dismissed.
· That there are no exceptional circumstances that warrant the granting of an extension of time. That the Applicant has not filed any independent evidence statements in support of her submissions.
· That the Applicant had capacity to take action post the dismissal in seeking employment support services by phone and online.
· That the Applicant’s claims that the unexpected and distressing impact of her dismissal, including stress and anxiety caused by this, are neither unique, rare, or unprecedented to the extent they warrant a granting of an extension of time.
· That the Applicant has not presented any independent evidence of her medical condition to support her claims of not being able to file the application within the required time.
· Further, that the Applicant did not take any action to dispute the dismissal after the dismissal; that she has not advanced any detailed submissions in support of the merits of her application; and that there are no other persons in a similar position and this should be considered neutral or weigh against the granting of an extension of time.
Applicable Law
Section 394(3) of the Act relevantly states:
“Time for application
(1) An application under 394 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).
(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.”
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[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.”
Consideration
I find that the Applicant was dismissed on 29 February 2024.
This unfair dismissal application was made 1 day outside of the 21-day time limit and therefore, can only be pursued if this time limit is extended.
Section 394 of the Act requires the Commission to take into account the matters set out in s.394(3)(a)-(e). Below, I have discussed these factors raised by the provision separately, insofar as they are relevant.
(a)The reason for the delay
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[2] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[3] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[4]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
Ms Snell’s submissions and the evidence of Mr Goldsmith in support of her application is that she has been severely mentally, emotionally and physically impacted by the dismissal. That this impact has compounded her significant pre-existing medicated mental health condition of high stress, vulnerability and anxiety and that her partner and support person was away during a portion of the 21-day period allocated to file an application within time.
As a consequence of these exceptional and unique circumstances, the Applicant submits she was unable to file the application in time but managed to file only 1 day late. Further, that she should not be disadvantaged by the exceptional circumstances she was confronted with and should not be denied the opportunity for her application to be considered.
While I have no reason to doubt Ms Snell’s submissions or Mr Goldsmith’s evidence, it is not disputed that her application has not been made within the required time and she has not provided any medical evidence, reports of treating doctors or practitioners, or any other documentation in further support of her submissions seeking to explain the reasons for the delay.
It is well accepted that facing the reality of being dismissed from employment can have significant and lasting impacts on an individual and that the significance or otherwise of these impacts, which can include stress, hardship and depression will be different in the case of each individual and their particular circumstances[5].
I accept Ms Snell’s submissions that she was significantly impacted by her dismissal. Whilst this may be the case, it does not necessarily follow that I accept the circumstances confronted by her were “out of the ordinary course, unusual or uncommon”.
Whilst clearly significant and unfortunate as the loss of her job was to Ms Snell, I am not satisfied that this event and its consequences are exceptional in the circumstances of this case. There is no compelling evidence before me to suggest the stress, anxiety and emotional state Ms Snell was facing after her dismissal are ‘uncommon’ or ‘exceptional’ when considered in the light of the common, and well established, experience of other employees.
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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. There is nothing in the material presented to the Commission in this case to support this conclusion.
I have also had regard to the length of the delay. Whilst only 1 day, I am not satisfied that this period, while relatively small in the circumstances, weighs in favour of the Applicant who has otherwise failed to provide a reason as to the exceptional circumstances justifying the delay.
I am therefore not satisfied that Ms Snell has provided a credible reason for the delay in filing the application and this factor weighs against granting an extension of time.
(b)Whether the person first become aware of the dismissal after it had taken effect
I have found, and it is not disputed that Ms Snell was made aware of her dismissal on the day of its effect on 29 February 2024. As such, I consider this factor as neutral regarding her request for an extension of time.
(c)Any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. [6] In the present case, Ms Snell disputed her termination prior to the final termination decision being made.
There is no other evidence to suggest that other than preparing and lodging this application the Applicant took any other steps to dispute his dismissal after it took effect. The Respondent’s submissions are that this was not the case.
I have considered the evidence on this factor and consider it to be neutral in whether there are exceptional circumstances in granting an extension of time.
(d)Prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[7] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[8]
A long delay gives rise “to a general presumption of prejudice”.[9]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[10]
The Applicant has not made any substantial submissions on this factor. The Respondent submits this factor should be considered as neutral.
On the facts of this case, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. Accordingly, prejudice is a neutral consideration.
(e)The merits of the application
The nature of this matter is that such that consideration must first be considered to whether the application was made within the period required in s.394(2) and whether an extension of time in which to make the application should be approved. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki[11], the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said[12]
“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.”
The substantive merits of this application have not been fully tested and as identified in by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd[13] the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant and extension of time to an applicant to lodge their application.
The factual context and merits of the present application would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted to the application to proceed.
Both the Applicant and the Respondent have not made substantive submissions as to the merits of the application and as there is insufficient evidence before me to make an assessment, I have regarded the merits as a neutral factor.
(f)Fairness as between the person and other persons in a similar position
The Applicant has not made any submissions on this factor. The Respondent submits there are no other persons in a similar position to the Applicant, who have made their applications on time.
In Morphett v Pearcedale Egg Farm[14], the Deputy President considered this criterion and said:
“…cases of this kind will generally tun on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, this ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to other matters currently before the Commission or matters which had been previously decided by the Commission.” [15]
While the specific circumstances facing the Applicant are inevitably unique to this particular case, I am satisfied the issue of fairness between the Applicant and other persons in a similar position is a relevant consideration in this matter.
In particular, I have found that the Applicant was not confronted with set of facts or circumstances that were uncommon or unusual to other employees in a similar position. Accordingly, I am not satisfied that it is likely a person in similar position would not have filed their application within time when dealing with the challenges and stresses of being dismissed from their job and this factor weighs against the granting of an extension of time.
Conclusion
Having considered the material before me, I am satisfied, on balance, that Ms Snell’s circumstances cannot be regarded as exceptional so as to support an extension of time. The request for an extension of time is dismissed. Accordingly, the substantive application is dismissed.
An Order reflecting this decision will be issued.[16]
COMMISSIONER
Appearances (by videoconference):
Mr M Goldsmith on behalf of the Applicant.
Mr T Fuimaono-Page on behalf of the Respondent.
Hearing details:
2024.
Melbourne (via video).
15 April.
[1] [2011] FWAFB 975.
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[3] [2016] FWCFB 349.
[4] [2018] FWCFB 3288 at [35]-[45].
[5] See Roe, C in Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299] – [300].
[7] Ibid.
[8] Ibid.
[9] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [556].
[10] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].
[11] (1997) 140 IR 1.
[12] Ibid at [11].
[13] AIRC 10 November 2000 at 14; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 at [38].
[14] [2015] FWC 8885.
[15] Ibid at [29].
[16] PR774255.
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