Brianna Leaman v Healy & Co Pty Ltd ATF Healy Family Trust

[2021] FWC 1119

[2021] FWC 1119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brianna Leaman
v
Healy & Co Pty Ltd ATF Healy Family Trust
(U2021/699)

DEPUTY PRESIDENT YOUNG MELBOURNE, 2 MARCH 2021

Application for an unfair dismissal remedy – application filed out of time – application dismissed.

[1] This decision concerns an application by Ms Brianna Leaman for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act).

[2] Ms Leaman’s application was the subject of an extension of time hearing before me on 25 February 2021. At the hearing Ms Leaman appeared on her own behalf. Ms Leaman tendered evidence from Dr Joanna Bakas, Consultant Psychiatrist at The Hobart Clinic. Ms Yasmine Healy, Director and Practice Manager at the Respondent, appeared on behalf of the Respondent and gave evidence for it. The Respondent tendered evidence from Ms Dannielle McGowan, Practice Coordinator at the Respondent. Neither Dr Bakas nor Ms McGowan were required for cross examination.

[3] At a telephone mention hearing before me on 4 February 2021, it was agreed by the parties that Ms Leaman’s employment with the Respondent was terminated with effect on 23 August 2020. This position was reaffirmed at the hearing on 25 February 2021. The unfair dismissal application was lodged on 28 January 2021.

[4] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to section 394(3). The period of 21 days therefore ended at midnight on 14 September 2020. 1 The application was therefore filed 136 days outside the 21 day period. Ms Leaman seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 2 Exceptional circumstances may 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 can be considered exceptional.3

[6] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[9] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 4

[10] In her materials, Ms Leaman says that there were primarily two reasons for the delay in lodgement. Firstly, Ms Leaman says that she suffers from a “serious and long term mental disorder”. 5 Her evidence is that this, along with multiple inpatient admissions and high doses of multiple medications in the last six months of 2020 has rendered her incapable of taking any legal or other action to dispute her dismissal.6 At hearing, Ms Leaman said she had suffered from a mental illness since childhood and had been taking medication since June/July 2019 and receiving dialectical behaviour therapy since October 2019. In her Form F2 application, Ms Leaman submits that she was in hospital at the time of her dismissal.7 Ms Leaman filed three medical certificates of Dr Bakas, as evidence. The first is dated 1 July 2020 and provides that for the period 1 July – 8 July 2020 inclusive Ms Leaman was unfit for work due to a medical condition.8 The second is dated 21 July 2020 and provides that for the period 21 July – 7 August 2020 inclusive Ms Leaman was unfit for work due to a medical condition. The certificate further states that an admission had been arranged to stabilise Ms Leaman’s condition, following which an appropriate return to work plan could be recommended.9 The third is dated 30 July 2020 and provides that for the period 30 July – 14 August 2020 inclusive Ms Leaman was unfit for work due to a medical condition, after which it is recommended a structured return to work plan be commenced.10 Ms Leaman also filed a letter from Dr Bakas dated 3 February 2021 which provides that between 27 – 31 July 2020 and 4 November – 23 December 2020 Ms Leaman was an inpatient under Dr Bakas’ care at The Hobart Clinic.11 Dr Bakas’ evidence is that Ms Leaman has been under her care since early 2020. She says that Ms Leaman’s mental state deteriorated significantly from August to December 2020, during which she says Ms Leaman did not have the capacity to make legal decisions including deciding whether to make an unfair dismissal application.12 Dr Bakas’ evidence further is that Ms Leaman required an “extended admission” towards the end of 2020 to stabilise her mental state and was discharged towards the end of December. Dr Bakas says that Ms Leaman is now gradually improving, however continues to require weekly group therapy and individual therapy with her psychologist with regular psychiatric review.13

[11] Secondly, Ms Leaman says that Ms Healy is a lawyer, and this contributed to the delay as she was fearful that Ms Healy being a lawyer would put her at a disadvantage and she would therefore not have a chance to be heard. She says this fear stemmed from her mental condition. 14

[12] I accept that Ms Leaman has a longstanding mental health condition. I also accept that this had an impact on her capacity and function to some extent during the period of the delay. However, in all the circumstances and on the basis of the evidence currently before the Commission, I do not consider that Ms Leaman’s mental health provides a reasonable or acceptable explanation for the delay. Firstly, it is clear from Ms Leaman’s own evidence that she was not, as asserted in her Form F2, hospitalised at the time she was given notice of dismissal, at the time of her dismissal taking effect or, indeed, at any time in the 50 days following the expiry of the 21 day statutory timeframe. At hearing, under cross examination Ms Leaman conceded this. This cannot therefore provide an explanation for that period of the delay. Secondly, all of the medical certificates in evidence pre-date Ms Leaman’s dismissal and they also, therefore, cannot provide an explanation for the delay in lodgement. Thirdly, Ms Leaman’s own evidence does not support her assertion that the delay in lodgement is the result of “multiple inpatient admissions.” Her evidence and that of Dr Bakas is that following Ms Leaman’s dismissal taking effect and prior to lodging the application on 28 January 2021, she was hospitalised once, for the period 4 November – 23 December 2020. I accept that this is not an insignificant period of time and provides an explanation for her failure to lodge the application during that period. However, it cannot explain the failure to lodge prior to November 2020 and, even if it could explain her failure to lodge the application during the second half of 2020, it cannot explain the delay in lodgement from 24 December 2020 until 28 January 2021. Fourthly, whilst at hearing Ms Leaman said she had been diagnosed in approximately June or July 2019 with borderline personality disorder, there is no probative evidence of any diagnosis before the Commission. Notably, Dr Bakas gave no evidence as to this. Further, there is also no probative evidence as to any medications prescribed or being taken by Ms Leaman, either at the time of dismissal or during the period of delay. Nor is there any probative evidence that those medications prevented Ms Leaman from lodging her application in time. Fifthly, whilst I accept Dr Bakas’ evidence that Ms Leaman’s mental state deteriorated between August and December 2020, that cannot explain her failure to lodge her application following her discharge from The Hobart Clinic on 23 December 2020. Further, Ms Leaman gave evidence that during September 2020 she applied for four jobs in accordance with her Centrelink obligations and obtained and attended two job interviews, one of which resulted in her being offered a trial shift at another dental clinic (although I note that this offer was subsequently withdrawn). She also gave evidence under cross examination that after her dismissal she attended and arranged a number of appointments and and discussed her future education requirements with a consultant from Colony 47 on a weekly basis. Additionally, under cross examination Ms Leaman also agreed that following her dismissal she engaged in a range of social activities, as evidenced by her Instagram account, including attending a number of social functions at which Ms Leaman socialised and drank alcohol, including activities on at least 4 September 2020, 21 October 2020, 23 October 2020, 31 October 2020, 19 December 2020, and 17 January 2021. 15 I find all of the above activities unable to be reconciled with Ms Leaman’s mental state during the period August – December 2020 having deteriorated to such an extent that she could not lodge the application in time and did not have capacity to make legal decisions including whether to make an unfair dismissal application. Most particularly, if Ms Leaman had capacity to apply for jobs and attend interviews, including one successful interview, I am unable to see how she did not also have capacity to lodge her application in time or indeed at any point prior to November 2020. Additionally, that Ms Leaman did not have capacity also seems inconsistent with Dr Bakas’ medical certificate dated 30 July 2020, which provides that Ms Leaman could return to work on 15 August 2020 pursuant to a structured return to work plan and also appears inconsistent with the 4 September Emails16 (referred to below) which, in part, state that Ms Leaman is seeking alternate employment “now that she has improved, [is] on new medication and on a support program that has seen her more motivated than she has been for a long time.” Accordingly, I do not consider that Ms Leaman’s mental health provides an acceptable or reasonable explanation for the not insignificant delay in lodging the application.

[13] As to Ms Healy being a lawyer providing an explanation for the delay, I am unable to see how this has any relevance or connection to Ms Leaman’s ability to lodge the application in time. I reject that this in any way provides a reasonable or acceptable explanation for the delay.

[14] Accordingly, I do not consider that Ms Leaman has provided an acceptable or reasonable explanation for the delay in lodgement of the application. This weighs against the grant of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[15] It is uncontested the Ms Leaman was notified of the dismissal on 9 August 2020. The dismissal took effect on 23 August 2020. Ms Leaman therefore did not first become aware of the dismissal after it had taken effect.

[16] In the circumstances, I consider this is a neutral consideration.

Action taken to dispute the dismissal

[17] Ms Leaman’s evidence is that she did not personally dispute her dismissal. However, she says that her mother enquired with the Respondent on her behalf about “a few issues and concerns”. 17 The Respondent submits that neither Ms Leaman nor her mother took any action to dispute the dismissal.18 It says that in her emails of 4 September 2020, Ms Leaman’s mother accepted the termination but was enquiring about Ms Leaman’s pay and raising a question regarding a new job application (4 September Emails).19 The Respondent says that it did not receive any communications from Ms Leaman or her mother, other than the emails of 4 September 2020.20 I accept those submissions. Leaving aside that Ms Leaman is not the author of the 4 September Emails, I do not consider that the emails dispute Ms Leaman’s dismissal and consider that they are more properly characterised as contended for by the Respondent. This weighs against the grant of an extension of time.

Prejudice to the employer

[18] The Respondent submits that it will suffer prejudice as a result of the delay. The Respondent submits that a key member of management who played a role in the “management and exit” of Ms Leaman has reduced her work by 80 per cent and would therefore be unable to participate in proceedings relating to the application. Further, it says that additional costs would be incurred to retrieve and evidence transactions made with Ms Leaman from its bookkeeper. Finally, it says that it has invested time in responding to the application which has detracted from work and family responsibilities. 21

[19] I accept that the delay is of some duration, however, I do not consider that a relevant member of management reducing their workload would mean that the Respondent would be prejudiced in its ability to defend the application. Further, that the Respondent would be required to defend the application does not, in my view, establish prejudice. Accordingly, I do not consider there is any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.

Merits of the application

[20] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The Act nonetheless requires me to take into account the merits of the application in considering whether there are exceptional circumstances. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed. I do not repeat them here save to say that Ms Leaman contends that her dismissal was unfair as she says that at the time of her dismissal, she was covered by a medical certificate and told her job was secure. 22 Ms Leaman’s evidence is that there were two matters which occurred in the workplace which resulted in a rapid decline to her mental health, these being an incident where she says she was “made fun of” by colleagues for a rip in her pants,23 and an incident where she felt targeted due to previous complaints involving the “main person” who was making fun of her in relation to the ripped pants incident.24 She says that this led to a meeting with Ms Healy and the other practice owner, Mr Healy. She says that this was the last day that she worked for the Respondent.25

[21] Ms Leaman was advised of the termination of her employment by email dated 9 August 2020. 26 That email provides that the reason for Ms Leaman’s dismissal is that the Respondent does not consider that Ms Leaman can fulfil the inherent requirements of her role, being the requirement to work full-time, due to her periods of absences from work in the previous 12 months. It also makes reference to the absence of medical information regarding Ms Leaman’s fitness for work despite requests for this information to be provided to the Respondent. Accordingly, the nexus between the events referred to by Ms Leaman and the reasons articulated in the Termination Letter for her dismissal is unclear. Under cross examination, Ms Leaman agreed that Ms Healy had taken the matter involving the rip to Ms Leaman’s pants seriously and agreed that the staff members involved had apologised. She agreed that following the apologies being given the matter was resolved. As to the second matter, Ms Leaman agreed that Ms Healy’s response to that matter was reasonable and fair although it was unable to be finally resolved, which I infer was a result of Ms Leaman’s absence from the workplace after 24 June 2020. Additionally, under cross examination, Ms Leaman conceded that her absence at the time of her dismissal was not covered by a medical certificate and she also agreed that Ms Healy had not informed her that her job was secure.

[22] Accordingly, on the materials currently before the Commission, Ms Leaman’s application, as currently formulated, appears to be, at the least, problematic and unlikely to succeed. However, Ms Leaman is unrepresented, and it may be that with the assistance of Counsel she would be better able to articulate her claim. In these circumstances I am prepared to consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[23] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Leaman and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[24] Having regard to the matters I am required to take into account under section 394(3), and all of the matters raised by Ms Leaman, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. As I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under section 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

B Leaman on her own behalf
Y Healy for the Respondent

Hearing details:

2021.
Melbourne and Hobart (by telephone):
25 February.

Printed by authority of the Commonwealth Government Printer

<PR727416>

 1   See Acts Interpretation Act 1901 (Cth) s.36(2)

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 3   Ibid

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 5   Witness Statement of Brianna Leaman at (a)

 6   Ibid

 7   Form F2 Application, q. 1.5

 8   Witness Statement of Brianna Leaman, Attachment 1

 9   Ibid

 10   Ibid

 11   Ibid

 12   Witness Statement of Joanna Bakas

 13   Ibid

 14   Witness Statement of Brianna Leaman at (a)

 15   Respondent’s outline of submissions at [28.2(e)]; Witness Statement of Yasmine Healy, Annexures YH16-23

 16   Form F2 Application, Attachment B

 17   Witness Statement of Brianna Leaman at (c)

 18   Respondent’s outline of submissions at [30.4]

 19   Ibid at [30.2]; Witness Statement of Yasmine Healy, Annexure YH15

 20   Respondent’s outline of submissions at [30.3]

 21   Form F3 Employer Response, q. 2.2 at [5]

 22   Form F2 Application, q. 3.2

 23   Witness Statement of Brianna Leaman at (e); Attachment 3

 24   Witness Statement of Brianna Leaman at (e); Attachment 4

 25   Witness Statement of Brianna Leaman at (e)

 26   Witness Statement of Yasmine Healy at [22]; Annexure YH11